This article is written by Khushi Agrawal, a student of Symbiosis Law School, Noida. In this article, she has discussed the concepts of rights of the Pawnee on default by the Pawnor in detail.

Introduction

Pursuant to Section 172 of the Indian Contract Act, 1872, a Pledge is a contract where a person deposits an item or good with a lender of money as security for repayment of a loan or performance of a promise. Pledge is also known as a peon. The depositor or bailor is the Pawnor and the bailee or the depository is the Pawnee. The Pawnee is under the duty to take reasonable care of the goods pledged to him.

Rights of the Pawnee on default by the Pawnor

The rights of Pawnee where Pawnor makes default is given under Section 176 of the Indian Contract Act, 1872.

If the Pawnor fails to pay the debt or fulfil the promise at the specified time:

• the Pawnee may bring a suit against the Pawnor on debt or promise;
• retention of the pledged goods as collateral security;
• may sell the pledged goods by giving reasonable notice of sale to Pawnor. If the proceeds of the sale are less than the amount of the debt or promise, the Pawnee is entitled to claim the balance from the Pawnor, if the proceeds are greater, the surplus belongs to the Pawnor.

The rights to retain or sell the pawn are not concurrent, but the rights to sue and sell are concurrent rights, i.e. he may sue and retain the goods as collateral security or sell them after notice has been given. Using the word or in relation to two or more alternatives does not necessarily imply mutual exclusion. It depends on the ascertainable intention of the provision as a whole.

Once the Pawnee, after having given reasonable notice to the Pawnor of his intention to sell the pawned goods, sells them in pursuant to Section 176 of the Contract Act, the right of redemption of the Pawnor shall be extinguished, but his right of redemption shall continue until the sale, i.e. at any time until the Pawnee exercises his power of sale by entering into a valid contract of sale.

In the case of the pledge where the borrower had died, it was held that the bank was not entitled by the heirs to pay the loan and interest and could not insist that the letter of administration should be issued in its favour as a condition for the return of the ornaments.

Default by Pawnor

A pledgee is not entitled to sell the goods pledged to him before the amount of the loans becomes due. Section 176 and 177 also apply to cases where no time is stipulated for payment of the debt for which goods have been pledged as security. Where no time is originally stipulated for payment, the debtor is not in fault until notice is given by the creditors that he requires payment on a certain day, and that day is past. The debtor is then in default and is in the same position as if a day for repayment had been fixed in the original contract.

In a contract of pledge, goods were required to be insured by the borrower. Bank was also given the liberty to get insurance at risk and expenses of borrower. The goods were destroyed due to fire. The borrower took no insurance policy and claimed that he was not liable since the bank failed to get the goods insured. It was held that provision regarding getting insurance by the bank was only enabling provision for the benefit of the bank, and it could not be used by the borrower for denying his own liability.

Right to sue

This enables the Pawnee to institute a suit independently of the pawn. The power conferred upon the Pawnee under this section to sell the property without reference to the court does not take away his right to sue the Pawnor on the debt or bring a suit for the sale of the property pledged to him. The Pawnee can sue on the debt, retaining the pledged goods as collateral security, even without first selling the goods pledged. If the debt is paid, the goods have to be delivered, and if sold, the Pawnee can appropriate the sale proceeds towards the debt. He cannot retain the goods pledged and also sue for his debt. The right to sue on the debt assumes that he is in position to deliver the goods on payment of the debt and, therefore, if he has put himself in a position where he is not able to redeliver the goods he cannot obtain a decree. He cannot have both the payment of the debt, and also the goods.

Any suit by a Pawnee for a declaration of his right to sell the article pledged for the satisfaction of his claim is one to enforce his charge upon the said article.

A bank chose to seek a simple money decree without seeking to enforce the security of goods hypothecated to it. It was held that the bank would be deemed to have waived its right as hypothecate.

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Notice before suit

The section does not contemplate any notice before the institution of the suit. A suit for the debt due can be brought through notice is not given. The Pawnee can also bring a suit to sell the goods pledged. However, a suit to recover the debt by sale of pledged articles must be preceded by notice.

Right of sale

On the debtor’s default, the Pawnee has the right to sell the goods pledged for debt repayment or promise performance. He may sell the goods by private sale. He must give reasonable notice to the Pawnor before selling the goods.

The power of sale is granted to the Pawnee and can be exercised at his discretion. Merely because the Pawnee gave a notice that he would sell the goods, cannot compel that Pawnee to effect the sale. The Pawnor has no right to call upon the Pawnee to sell the goods pledged except as provided in Sections 161 and 176 and if the Pawnee does not exercise that discretion, the Pawnee cannot be blamed. If fixed deposit receipts are taken as collateral security for repayment of a loan, it is not obligatory on the bank to adjust the instalment due every month from this security.

A pledge cannot compel the pledge to exercise the power of sale as a means of discharging or fulfilling the decree. His only rights are the following:

• In the event that the pledgee exercises the power to insist that it be done honestly and properly and that the sale proceeds be applied to the debt;

• In the event that the pledgee does not exercise the power to redeem the pledge on payment of the debtor so much of it as otherwise remains unpaid;
• and in the event that the sale is improperly exercised, damages are caused by it.

However, if the pledgee agrees to sell part of the pledged goods, he cannot then raise a plea for the right of lien and he is bound to sell the property within a reasonable time. In Vimal Chandra Grover v Bank of India, the pledgor asked the pledgee bank to sell the pledged shares at the prevailing price of Rs 2400 per share. The pledgor, quite wrongly, indicated that the share was at the head office of the bank. The bank took nine months to locate the shares and to sell them, at which time the price of the shares had fallen to Rs 700 per share. Observing that it was for the bank to locate where the pledged shares are kept, the supreme court upheld the claim of the pledgor for this loss.

Right of sale by Hypothecation

A hypothecate has the right of private sale and he can take possession and proceed to sell the hypothecated property without the intervention of the court, on default by the debtor, or on a breach by the debtor of any condition of the agreement, but only if the hypothecate has that power under the hypothecation agreement. If he fails to take possession of the hypothecated property on his own or to enforce it as security in a suit, the right of private sale stands waived, and he would rank like others as a secured creditor.

Notice before sale

If the Pawnee wants to sell articles, without the intervention of the court, he can do so, only after issuing a notice of sale to the Pawnor. The word sale in Section 176 means intended sale and not a sale actually arranged on a particular date. However, no fresh notice is necessary for an adjourned sale nor is it necessary to make the debt due recoverable. It is only necessary to make the debt due recoverable; it is only necessary before goods are sold.

This section is mandatory and the required notice must be given. The requirement cannot be waived at the of making the contract of a pledge and supersedes any contract to the contrary. An agreement authorizing the Pawnee to sell the goods pawned, without notice, is void under Section 23 of the Contract Act.

Requisites of a valid notice

This notice must be clear and specific in its language and must indicate the Pawnee’s intention to dispose of the security. It can’t be implied. The notice must be reasonable and not vague under this section. The debt for which the pledged goods are being sold must be mentioned. Thus, a notice stating failure to arrange for the sale of hypothecated stock is merely an intimation that arrangements would be made for sale, not notice for sale. However, a notice, that in case of default the Pawnee would send its representative to the place where goods were pledged, to sell them at market price, was a notice of actual sale, not just an intimation of arrangement.

A notice is not valid if it does not specify the amount payable. It is not vague and ineffective, nor is it unreasonable because it gave six days’ period in which to pay when repeated demands had previously been made and the sale was seven months later, nor is it invalid where it makes a demand for payment of the amount for which the goods are pledged, and also refers to and demands payment of another debt.

Reasonable notice

Since the word sale in the section refers to the intended sale, and not as arranged on a particular date, reasonable notice, therefore, it does not require a date, time and place specification. The law stipulates that the Pawnee should give Pawnor a reasonable time to exercise his right of redemption and proceed to sell if the property is not redeemed. A Pawnee’s notice to the Pawnor that unless the Pawnee redeems the pledged items within a fortnight, the Pawnee will sell them is a good notice, although the Pawnee may not sell the goods until a few days after the fortnight’s expiration. Reasonable notice was held to have been given where on 11th August, notice was given for payment of money by 18th August, failing which the pledged shares would be sold without further reference to the debtor, and shares were sold on 20th August. A Pawnee entitled to sell is not bound to sell within a reasonable time after the expiry of the period mentioned in the notice. He is entitled to choose his own time to sell after he has given notice of the sale.

Effect of Sale without Notice

Sale without notice is invalid and cannot be upheld. Such a sale would amount to conversion giving rise to damages to be assessed at the market rate on the date of conversion, i.e. at the date of sale. Sale without notice is void, and a vendee without notice of the pledgee, takes only the limited rights or interest of the Pawnee, in other words, he steps into the shoes of the Pawnee.

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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 types of damages under Section 73 of the Indian Contract Act, 1872 in detail.

Introduction

Section 73 provides compensation for loss or damage caused by the breach of contract. When a contract has been broken, the party that suffers from such infringement is entitled to receive compensation for any loss or damage resulting from such infringement. Such compensation shall not be given for any remote and indirect loss or damage sustained as a result of the breach.

Compensation for failure to discharge obligations similar to those created by the contract.

If an obligation similar to what was created in the contract has not been discharged, any person who fails to discharge is entitled to receive the same compensation from the party in default as if that person had contracted to discharge it and had broken his contract.

Explanation

In estimating the loss or damage resulting from the breach of a contract, consideration must be given to the means that existed to remedy the inconvenience caused by the non-performance of the contract.

Illustration

‘A’ contract to repair B’s house in a certain way and receive the money in advance. ‘A’ repairs house, but not according to the contract. ‘B’ is entitled to recover the cost of making the repairs conform to the contract from ‘A’.

‘X’, the owner of a boat, contracts with ‘Y’ to take a cargo of jute to Mirzapur for sale at that place, starting on a given day. The boat does not start at the appointed time because of some unavoidable cause, whereby the arrival of the cargo at Mirzapur is delayed beyond the time it would have arrived if the boat had sailed under the contract. After that date, the price of jute falls and before the cargo arrives. The measure of the compensation payable to ‘Y’ by ‘X’ is the difference between the price ‘B’ could have obtained for the Mirzapur cargo at the time it was delivered in due course and its market price at the time it actually arrived.

What are the different types of damages?

General and Special Damages

Difference between general and special damages are:

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Nominal Damages

If the defendant is found liable for breach of contract, the plaintiff is entitled to nominal damages even if no actual damage is proven. Nominal damages are awarded if there is an infringement of a legal right and if it does not give the rise to any real damages, it gives the right to a verdict because of the infringement.

In the following circumstances, nominal damages are awarded to the plaintiff:

• The defendant committed a technical breach and the plaintiff himself did not intend to execute the contract;

• The complainant fails to prove the loss he may have suffered as a result of the contract breach;

• He has suffered actual damage, not because of the defendant’s wrongful act, but because of the complainants’ own conduct or from an outside event;

• The complainant may seek to establish the infringement of his legal rights without being concerned about the actual loss. Where there is no basis for determining the amount. The view that nominal damage does not connote a trifling amount is erroneous; nominal damage means a small sum of money. Nominal damages have been defined as a sum of money that can be spoken of, but which does not exist in terms of quantity.

Where the loss is small and quantifiable, the damages awarded, although small, are not nominal damages.

If the market rate on the date of the breach is not proven, the plaintiff shall be entitled to nominal damages. However, the fact that the buyer does not sustain any actual loss as a result of the seller’s failure to deliver the goods is no reason to award the buyer nominal damage.

Substantial Damages

In cases where an offense is proven, many authorities may claim substantial damages even if it is not only difficult but also impossible to calculate the damages with certainty or accuracy. In all these cases, however, the extent of the breach has been established. There was a complete failure to perform the contract on one side. However, where the breach is partial and the extent of the failure is determined, only nominal damage is awarded. The plaintiff who can not show that after the breach he would have had the contract performed, he is in a worse financial position, usually, recover only nominal damages for breach of contract.

Where a defendant refuses to accept goods sold or manufactured for him, the plaintiff sells them to a third party on the same terms as the defendant agreed and makes a similar profit, the plaintiff shall be entitled to nominal damages if the demand exceeds the supply of similar goods; but if the supply exceeds the demand, the plaintiff shall be entitled to recover his loss of profit on the defendant’s contract.

Aggravated and Exemplary Damages

In certain circumstances, by taking into account the motives or behavior of the defendant, the court may award more than the normal measure of damages. Such damage may be:

Where the motives, conduct or manner of inflicting the injury on the defendant may have aggravated the damage to the plaintiff by injuring his proper feelings of dignity and pride, the damages awarded to compensate the plaintiff would be aggravated. These are awarded in tort, but not in a contract because the motives and conduct of the defendant are not to be taken into account when assessing damages and it is not to be awarded in respect of feelings of disappointment or injury; they are too remote. Thus, if an employee is wrongly dismissed from his job, the damages payable to him will not include compensation for the manner in which he is dismissed, for his injured feelings, or for the loss that he may suffer from the fact that the dismissal of himself makes it more difficult for him to obtain fresh employment.

Liquidated and Unliquidated Damages

Damages are said to be liquidated once agreed and fixed by the parties. It is the sum agreed by the parties by contract as payable on the default of one of them, Section 74 applies to such damages. In all other cases, the court quantifies or assesses the damage or loss; such damages are unliquidated. The parties may only fix an amount as liquidated damages for specific types of a breach, then the party suffering from another type breach may sue for unliquidated damages resulting from such breach.

Where, under the terms of the contract, the purchaser was entitled to claim damages at the agreed rate if the goods were not delivered before the fixed date and if they were not delivered within seven days of the fixed date, the purchaser was entitled to cancel the contract and pay guarantee amount to the bank, but the goods were delivered within the extended period. It was held that the buyer was only entitled to claim damages at the agreed rate and that the banking guarantee confiscation clause could not be invoked as the contract was not cancelled.

What does loss or damage mean?

The word loss or damage means:

• Harm to persons through physical injury, disabilities, loss of enjoyment, loss of comfort, inconvenience or disappointment, injured feelings, vexation, mental distress, loss of reputation.
• Harm to property, viz. damage or destruction of property; and
• Injury to an economic position which is the amount by which the plaintiff is worse off than he would have been performed, and would include loss of profits, expenses incurred, costs, damages paid to third parties, etc.  

Consequential Damage and Incidental Loss

Consequential damage or loss usually refers to pecuniary loss resulting from physical damage, such as loss of profit sustained due to fire damage in a factory. When used in the exemption clause in a contract, consequential damages refer to damages that can only be recovered under the second head in Hadley v Baxendale, i.e. the second branch of the section, and may also include recovery of profit and losses under the first branch.

Another term incidental loss refers to the loss incurred by the complainant after he became aware of the breach and made to avoid the loss, i.e. the cost of buying or hitting a replacement or returning defective goods.

How to measure the damage caused?

The measure of damage or measure of damages is concerned with the legal principles governing recoverability; the principle of the remoteness of damage confines the recoverability of damages. Questions of quantum of damages are only concerned with the amount of damages to be awarded and are, therefore, different from the measure of damages; the latter involves consideration of the law.

What does the remoteness of damages mean?

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

How to test the remoteness?

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

The defendant is only liable for reasonably foreseeable losses- those who would have reason to foresee the likelihood of future infringement if a normally prudent person in his place had this information when contracting.

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

The principle governing the remoteness of damages was elaborated in the landmark case of Hadley v. Baxendale. The rules stated in this case were that a party injured by a breach of contract could recover only those damages which were either to be considered “reasonably as arising naturally, i.e., according to the usual course of things” from the breach, or could reasonably have been considered by both parties at the time they entered into the contract as the likely result of the breach. This is the basis for understanding special damages. In this case, the Court acknowledged that the defendant’s failure to send the crankshaft for repair was the only cause for the plaintiffs’ mill to stop, resulting in loss of profits.

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

For many litigators, identifying an appropriate senior can be a big challenge. It is also a career-defining question.

Starting with the right senior can make your career take off while the wrong seniors will create impediments for you.

Before we proceed to explore the answers, let us revisit the reasons why this question is important.   

• You expect to obtain an enormous amount of training, guidance and mentorship from your senior. A good senior will go out of his or her way to guide and train you, from their own personal commitment to contribute and give back. They will take an active interest in your growth and development (provided you are serious and committed too, of course).
• You will consciously and sub-consciously imbibe the thought processes and mannerisms of the senior, with respect to handling clients, drafting, structuring and presenting oral arguments, dealing with other lawyers, ethics etc.  
• You will work on matters in which the senior has a practice. There needs to be some alignment in your interest areas and the matters your senior works on.  
• Ultimately, your goal is to become independent, and you expect to be self-sufficient within a reasonable time.

Given that these are the expectations a young litigator has from a senior, I am listing the most important concerns that cross a person’s mind below.  

Question: Is the brand name of the senior relevant?

Young lawyers are fascinated with the idea of starting out as a junior in the office of a very famous lawyer. However, finding a senior is not about getting the best lawyer’s brand name. Most of the top lawyers have a very busy practice and a huge team of juniors. You may not receive any personal attention or mentorship directly from the lawyer whose office you work in, for this reason.

One of the exceptions to this rule is if there is someone in a senior lawyer’s office who is willing to take on the role to mentor and groom you. Otherwise, this may not be a great idea.

Here are some alternative criteria you can look at.

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Possibility of personal mentorship and training

If a lawyer has a huge office and is very busy, he or she will not get time to train you. If you are working with someone who is already very famous and successful, chances are that he or she will have a lot of work, too many juniors and very little time to groom you. If you are fortunate, you may find an experienced junior who is willing to personally mentor you.

Ideally, you need to identify a senior who is known to take an interest in the growth and development of his juniors as well. Often, it may be an emerging litigator, who is not yet a senior advocate, and who has, say, not more than 8 to 15 years of experience, but who has a lot of client briefs to handle.  

Sometimes someone doing good work since last 5-6 years will be able to give you great guidance and training as well. Look for people with a reputation for training their juniors well.   

Nature of work and causes, types of clients and volume

The nature and quality of work, the causes your senior stands for, the clients (or client interests) he or she represents are important factors for you to consider while choosing a senior.  

The nature of work refers to the legal subject (e.g. Companies Act, Insider Trading Regulation, Insolvency and Bankruptcy Code) to which the lawyer’s work primarily pertains. Many lawyers are generalists and may handle a variety of matters (ranging from civil suits, family law matters, arbitration, service law matters, rent matters, property disputes, etc.) and it is fine to start your career with them.

However, if you have a special interest in particular areas, you may want to start off as a junior under a lawyer who specializes in legal work around that area. Make a note of the forum in which the prospective senior practices – you are likely to work on matters at those forums if you choose to work under that senior.

In addition to the subject matter of work, the types of causes that a lawyer works on and whether they appeal to you can also be an important factor for you to consider. For example, preventive detention, minority rights, right to education, securities law, restructuring of companies are different types of causes. They may be slightly different from the exact subject or statute.

For example, a banking and finance lawyer who acts for Indian banks will run his practice in a different way from as compared to someone who primarily represents corporate borrowers.

Similarly, if your senior does intellectual property work around pharmaceutical patents, does he or she represent pharma patent owners (usually foreign companies) or Indian generic companies? This will be important for you to know.

I am emphasizing on these criteria because once you start work, by default, your professional habits around client development and management will be oriented towards meeting the needs of the group of clients that your senior caters to. Attuning yourself to a different set of clients will require a different kind of exposure and circumstances, and you may not be able to develop that on your own.

It is like learning and practising Indian or Western classical music everyday from a music teacher when your real goal is to learn to play a heavy metal or a rock song on a guitar. I did that when I was 15, and it just made reaching my goal much harder.  

While researching the causes and clientele a lawyer has worked for, also identify the quality and scale of work, either in terms of the size of the matter (monetary amount in dispute) or the impact of it (for example, legalization of consensual intercourse in a private space amongst adults).

Lastly, the number of filings and court appearances are relevant. If there is more work in an office, you will get more exposure and opportunities to work on a variety of matters. For example, Agarwal Law Associates filed 645 matters at the Supreme Court in 2018 (see here). Working in such an office is more rewarding than, say, working at an office which files 30 cases in a year.

Will you have an opportunity to take up independent work?

The opportunity to take up your own work is an important factor to consider, before you identify a prospective senior, for three reasons:  

• You will learn to manage clients on your own
• You will get an opportunity to build face value before the bench at the forums where you represent
• You may earn a supplementary income

Now, some seniors are not comfortable with this idea because for them it means that someone whom they trained is no longer available to them as a resource for the work of their chamber. They may be vocal about their stance or may otherwise communicate indirectly that they do not encourage this.

Others may not discourage that, but you may be so overwhelmed with the volume of work all the time that you have no real opportunity to serve any client of your own.

The best seniors, however, encourage you to take up work on your own. Further, they will even personally refer to clients whose work they cannot take up, even while you are working with them.

They encourage you to start independent practise as well. After you start independent practice, they may refer matters to you and even recommend you to panels of government departments, statutory undertakings and PSUs.

How can you identify a senior who meets the above criteria?

The next challenge is how to identify a senior who meets the above criteria. There are some simple pointers for that:

• First, identify your area of interest, the forum you want to practice in, and the city/ state (if that is relevant)
• See which are the most important and recent matters in that area of interest which have received media coverage. Make a note of which lawyers’ names have been mentioned.
• See the reported orders and judgments in different cases pertaining to the matters and statutes you are interested in. The names of lawyers who have represented a party and argued the case are mentioned in the judgment.  Make a list of the lawyers who have filed their appearance. You will notice patterns and trends. See which lawyers are arguing and filing the most number of cases. You will also be able to identify whether a lawyer is consistently representing, say, companies (borrowers), or banks (lenders) in a lending transaction, and similar kinds of trends.  
• You can ask your seniors who worked as litigators for 1-2 years or more, and use your LinkedIn profile to look up the names of lawyers mentioned above for more details. You can also find out the names of others who are working in the chambers of such lawyers (or have worked there in the past). Start a conversation with them to understand how it is for a junior to start his or her career at such a chamber.
• You can also perform a judicial clerkship in the relevant forum.

Remember, the real challenge is not about whether you will find a senior or not, it is whether you will take the pain to do the research, then reach out to the relevant people and ask the relevant questions. If you take the trouble to research, add about 150-200 people to your network and have 50 conversations with people, you will get enough insights and your own answers about this, which will be far more nuanced and suited to your needs, in comparison to any straitjacketed advice that one person can give you. We teach you how to do this in the Lawsikho Master Access (currently closed), the Lawsikho diploma courses and the executive certificate courses.

Of course, when you find the right senior, you need to possess sufficient skills to enable the senior to identify whether you are the right person for the senior. You will need to have a meaningful conversation and crack the interview (whether it is formal or informal) and show that you have the relevant skill-sets.

How can you use this information to find a senior? Are there other questions that we can address regarding this? Let us know by writing to us by replying to this mail or just call us.

In addition, how do you plan to acquire the relevant skill-sets so that your dream senior shortlists you for working with him or her? Write back to us and let us know.  

By the way, I just thought I’ll let you know that our courses on civil litigation, criminal litigation, arbitration, Insolvency and Bankruptcy Code (IBC) train you to perform independent work for clients, irrespective of which senior you work with. In some areas, the work you perform for clients is not limited to litigation, but extends across advisory, contractual and compliance aspects as well. The courses in IP, media and corporate laws and on corporate taxation train you in such work on IP, media and entertainment laws and corporate tax.

The post How should you Identify a ‘Good’ Senior to Work Under? appeared first on iPleaders.

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

For those who want to pursue a career in litigation, the question of choosing a forum to start your practice is very important. There is a lot of conflicting or piecemeal advice available out there, which is likely to leave you confused. This decision has long-term implications for your career, so let us give you a low-down on this.  

Let us take a serious look at the pros and cons of starting your career in different forums, and then zero down on criteria that can help you in arriving at your own decision.  

Does it help to begin your practice in trial courts, or can you start practice directly at the High Court?

Benefits of starting your practice at a trial court

Many senior litigators will advise you to have some experience of trial court work in your early years. There is very sound logic to this advice. For full exposure to the legal and justice system, learning the ropes of trial litigation is important.

For many lawyers, having an experience of trial litigation contributes to their self-perception of being a complete lawyer. In a way, it feels incomplete to be a litigator without any experience of trial court work, especially real life cross-examination in legal proceedings.     

You may be able to use your trial experience in appellate litigation work, as questions about how evidence was appreciated at the trial court are often addressed in appeals. Further, evidence-related procedures in arbitration, consumer cases, debts recovery tribunal (DRT) and other tribunals derive their roots from trial litigation.

For example, Shreyas Jayasimha, founder of the Aarna Law, a leading arbitration firm (former partner of AZB’s Bangalore office), said to me that although he is well-known as a great arbitration lawyer, trial litigation skills are the real secret to his success.

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There is a lot more freedom to develop the factual narrative of the case and exploit the procedural technicalities and gaps in evidence at the trial stage. The real case narrative is framed during a trial. As the litigation proceeds towards the appellate stages, the lawyer’s ability to shape the factual narrative of the case gets restricted, and the scope of the court’s powers is progressively restricted to the questions of law involved.

If you start your practice in the trial courts, you will naturally be involved in handling High Court-related work at the appeals stage in connection with your matters.

You may, subsequently, after a few years of practice, decide to take on more appellate work at the High Court. However, remember that practising at the High Court or Supreme Court does not indicate that you will earn more. Good trial court lawyers make a lot of money, sometimes more than the majority of litigators at the High Court or Supreme Court. It is also perfectly alright if you want to be known as a trial litigator for your life –  you do not necessarily have to move on to the High Court or the Supreme Court later on.

It is also believed that when successful trial lawyers move to HC they can get a lot of referrals from friendly trial lawyers who respect them and had a chance to see their brilliance first hand at the trial court level!

Benefits of starting your practice directly at the High Court

If you want to ultimately practice primarily or exclusively at the High Court, it is also possible to directly start at the High Court itself.

For a moment, consider a situation where a litigator with 10 years of trial court experience shifts to a High Court. How will he or she fare in comparison to someone who has already been practising in that High Court for the past 10 years?

Chances are that the litigator who has been practising in the High Court for the past 10 years will do better, because he or she would have had deeper experience of the relevant High Court work, higher credibility and face value with the judges, a better network that generates relevant work for him or her in that court, and so on.

In comparison, the litigator who recently shifted or started his or her practice at the High Court will have to build it from scratch.    

How can the High Court lawyer acquire the skills which he or she missed out on because of lack of trial court experience?

The answer is simple. It is not necessary that trial and evidence-related skills need to be learned over the years through direct first-hand trial experience alone. If you can be at peace with the idea that you can be a lifelong litigator without ever having performed a cross examination in a trial court, you can still acquire evidence and investigation-related skill-sets by learning from other sources, such as, say the police (if your goal is to be a criminal litigator) or a banker (if you want to learn how financial records are used in litigation), etc. This, in fact, can be a faster path, which directly leads you to your goal, without having to do trial work for years.

Many brilliant HC lawyers have never worked for a day in a trial court and that does not matter if you can learn what you need to learn.

Note that some High Courts may have an original side jurisdiction as well, in which case certain aspects of trial with respect to the areas on which they have original jurisdiction can be learnt in the course of practice at the High Court itself.    

How to start if you want to build a practice at the Supreme Court?

There are two ways to approach this problem.

The first is to start in the High Court of a specific state, build your reputation and credibility in that forum, and a network of clients who give you work pertinent to that forum, so that when you move to the Supreme Court, SLPs and appeals from the same network of state HC lawyers and existing clients can be filed/ argued by you at the Supreme Court. This is a time-tested strategy which has been followed by a vast majority of Supreme Court senior advocates with successful Supreme Court practices as of today.

Over the course of time, many advocates who want to practice in the Supreme Court become Advocates on Record so that they can file cases independently. Some High Court practitioners also attempt the exam as it enables them to enjoy superior credibility and charge a higher fee.

The second strategy involves you to start your practice directly from the Supreme Court itself, without any significant High Court experience. Our research suggested several names in this regard, such as Gopal Sankaranarayanan, Menka Guruswami and Gautam Bhatia, mostly NLS Bangalore alumni who have directly built their practice in the Supreme Court (with some trial court exposure in some cases), and in a relatively short amount of time.

To build a profile directly to handle Supreme Court work, you may need to build your profile more aggressively. General public visibility and credibility is important. You can author books on a subject of your interest (from the objective of your practice), start or represent organizations that promote the significant public interest or even act as a public advocate for a cause building up ground level support for the same. All of these have proven to create powerful brands for lawyers that have helped to build successful Supreme Court practices in a relatively short period of time.

Remember, it is not easy at all!

It also helps your brand if you frequently appear in the media to talk on the subjects on which you want to represent clients and appear in public interviews on television and comment on high-profile matters, etc. Many lawyers these days hire PR agents to land such opportunities.

Still, you cannot expect to build a career only based on hype unless you can deliver at the Supreme Court level, which requires serious skills.

Remember, Supreme Court work largely involves the filing of Special Leave Petitions (SLPs) under Article 136 of the Constitution of India, writ petitions and public interest litigation under Article 32, filing limited types of criminal appeals and statutory appeals under statutes such as the Income Tax Act, the Consumer Protection Act, etc.

Therefore, the actions you take for building visibility should ideally involve an area of your interest in which you can build your practice at the Supreme Court. For example, Menaka Guruswamy has stood for the rights of the LGBT community and the challenge to Section 377 of the Indian Penal Code. She was also involved in the Right to Education case and in cases involving abuse of power under the Armed Forces Special Powers Act (AFSPA). Similarly, Gautam Bhatia has authored best selling books on the Constitution of India. We also believe that his regular social media posts on important constitutional cases have gone a long way to highlight him as a regular commentator on constitutional law.

Notice how different this would look in comparison to the profile of someone who intends to build a practice, say, at the trial court or the high court, or the securities appellate tribunal (SAT).  

There is a third strategy as well, to spend a year or two as a clerk at the Supreme Court, followed by working with seniors at the Supreme Court. Read the discussion below on how this can be of help in the long term.   

The relevance of judicial clerkships for building a litigation practice  

Judicial clerkships in India at the High Courts and the Supreme Court are gaining popularity in recent years. Judicial clerkships at the Supreme Court are valuable for those who want to pursue an LLM in a foreign university, but what is their relevance for someone who wants to build a practice at the Supreme Court? Also, is pursuing a clerkship at a High Court of any relevance?       

If you want to be a litigator, starting your career as a clerk in the court in which you want to practice in offers the following advantages:

• You will learn how the court-registry and filing systems work inside out. You will have a very wide perspective of this.
• In addition, you will acquire unique insights about how different lawyers draft petitions. You will get exposure to a variety of drafts submitted by various kinds of lawyers, and you will be able to distinguish good drafting from hurried or shoddy drafting. Small things can make a difference here, for example, insertion of captions for each paragraph so that a judge can quickly read through the headings and get a sense of the flow of your arguments.  You may, for example, notice how a lawyer who follows this approach consistently obtains a favourable injunction or stay, and countless other insights.
• You will also notice how top lawyers use the law to make persuasive cases and obtain a favourable judgment, how the lawyers who successfully improve with every case, how initial perception of a lawyer plays a role in the direction of the case, etc. You get an opportunity to absorb a lot of these, which can change the direction of your career entirely.
• You will learn how judges decide cases, what factors and considerations weigh on their minds, etc. This is extremely valuable information for building your own practice. You can use these insights even if you shift to litigation in a law firm or an in-house team later on in your career.
• For building a successful practice in any court, having your own face value before the judges is important. Performing a clerkship in a court at least builds an initial level of familiarity with the sitting judges of that court. If you are otherwise competent and diligent, you may be able to use this initial opportunity as leverage to establish your own credibility very quickly. For this reason, the time spent being a court-clerk is strategically beneficial in the long-term.

Remember that there is no point in pursuing a judicial clerkship in a different court from the one in which you want to build your practice, as you will not benefit from the above advantages in such a situation. Therefore, if you want to practice in the High Court at Ranchi, a judicial clerkship at the Supreme Court will not be relevant for providing a powerful start to your career.

Criteria for making an effective choice

Starting your litigation career in each forum has its own pros and cons. However, having all the information available right away should be beneficial in making an informed decision, use the advantages and minimize the disadvantages. There is also no fear of missing out on something else that could have been more beneficial to you.

Are there any uniform criteria you can use from the above discussion to arrive at your own decision on where to start your practice?

The following criteria should enable you to decide.

In which forum do you want to ultimately practice?

The forum in which you want to ultimately practice is the primary focal point. Consider starting in that forum first. If you want to build a practice in the Supreme Court or High Courts and are starting there directly, consider becoming a judicial clerk for at least one year to understand the workings of the judicial machinery and the scope of litigation work at that forum.   

Of course, remember that practising at the Supreme Court will require you to build expertise and specialization on a certain category of matters, which will be different if you build a practice in a trial court or in a tribunal. Also, it is far easier to build a successful practice at a lower court than at a Supreme Court. To build a practice as the Supreme Court, remember that the practice is so fierce that most consider it impossible to build a practice directly at the SC.

If you think you are missing out on exposure to any other aspect of the work, consider learning it through an alternative medium.

Do you want to learn trial court work?

For many lawyers, having full exposure and experience to different aspects of the law is important. It imparts the experience of being a holistic lawyer. If knowing and understanding trial court work, or having performed personally some thrilling cross-examinations is critical to you, then don’t ignore the experience of a trial court.

Are there reasons which justify acquiring experience at multiple forums?

You may, however, acquire some experience of working in other forums, for strategic reasons. Say, for example, if you want to build a law firm in future, you may want to learn the basics of legal work and the pain points of clients at trial and appellate forums and some tribunals.

Similarly, if you want to move into an in-house role in the banking or financial sector, you may want to consider building a practice at the National Company Law Tribunal (NCLT), Debts Recovery Tribunal (DRT), or Securities Appellate Tribunal (SAT).  

My verdict

I would personally want to build a practice starting from lower courts or a specialized tribunal in a metro city like Delhi or Mumbai because it is far easier, and more lucrative to start with and transition into an appellate practice eventually if I see the need to do so. What would you do?

So yes, there are a bunch of things to consider before you jump into any particular area of practice.

Was this helpful for you? If yes, do share your opinion by responding to this. I would love to know your thoughts.

For those who want to practice as litigators or a disputes lawyer at a law firm, I have an amazing package we have created. We are yet to launch it. It will be similar to Master Access, but will only have courses related to litigation. Stay tuned to hear more about it over here.

If you want to train yourself on a specific area, you can take a look at our in-depth practical courses on civil litigation, criminal litigation and arbitration course (extremely relevant for a generalist litigator profile) or insolvency and bankruptcy code to learn practical legal work around these areas. The executive certificate course on corporate taxation and the Companies Act diploma (includes NCLT and SAT litigation) are relevant if you want to specialize in litigation work pertaining to a specific sector, along with compliance and other advisory-related work on that area.

The real estate law course should also be very attractive if you are planning to litigate.

I hope you find our bevy of litigation courses useful in your quest to become a successful litigator. The biggest value we offer through these courses is that you will learn super fast instead of slowly learning and waiting for your seniors to find time to tell you how to do things.

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The post From which Court should you start your Litigation Practice? Is it a Good Idea to start from Higher Courts or should you start at a Trial Court only? appeared first on iPleaders.

This article is written by Arya Mishra, a student of Banasthali Vidyapith, Jaipur. The article answers the question of whether one should highlight text or not. Arya has also explained the alternatives that can be used instead of highlighting to remember text effectively.

Introduction

There is a famous proverb by Steve Maraboli that “stop wasting your time looking for the key to happiness…. the door is open and unlocked …. Just walk through it”. It is said that each and every second is valuable for human beings and it should not be wasted by doing silly works.

In a world of fast-changing and full of information as our own, each one of us from i.e. from a school child to a college student to a working adult, everyone needs to know how to learn well. Yet evidence suggests that most of us don’t use the learning techniques that science has proved the most effective one. The worse part is that researches have proved that learning strategies we do commonly to employ, like rereading and highlighting, are among the least effective ones.

I want to ask something that How do you prepare for your examination or what method you apply to study? Do you prepare chart sheets before the exam or you use note tabs or sticky notes for each significant points to make a guide for your mind? Do you plot persistently all through the semester or totally dawdle then pack everything finally and pray God to stick everything into your mind? Despite your examination style, I’m certain that you may have depended on featuring sooner or later as an approach to rapidly recall the most significant sentences or text and various case laws by highlighting. Notwithstanding, if highlighting text is your method of study then I have awful news for you “ highlighting doesn’t really enable you to recollect that everything”. After lots of research, it was found that highlighting a text is a waste of time as it neglects to install information into your cerebrum and distract a person from studies.

For what reason highlighting doesn’t help you to remember anything?

Highlighting doesn’t help to remember anything because you just highlight the text and then leave it without focusing on it again. You do not pay attention to it. As you think that you have highlighted the text so it means you have read it and it is in your mind. And, you rarely pay attention to it. After some time your brain fails to remember that information.

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It is necessary to tell the brain what is important instead of what’s worth remembering it. There is an empirically verified principle which states that individuals have a better record when they utilise mental endeavours. Anything which is difficult to learn installs information in your memory better, research shows that learning which feels simple vanishes like snow falling on water. When you try to recover ideas from your memory you are fortifying the neural path associated with it.

Flashcard is an effective tool of study as it forces your brain to come out with different ideas, unlike highlighting does not help to enter knowledge into our brain. The teachers also encourage students to make their own outlines without looking into books with the hope that they will search the material on their own and their knowledge will increase.

We depend on highlighting as it feels easy than flashcards. As we don’t want to put efforts on our brain to recall the thing which make us feel unpleasant and just reading a highlighted text is easy.

There are four periods of learning and memory: concentrate, encoding, storage and recovery. Before your cerebrum can recollect a reality, you should focus on this reality and afterwards your mind can encode, store and recover this data. Presently consider it, when you read through case law outfitted with your helpful highlighter would you say you are really focusing on any of the actualities you feature or would you say you are progressively centred around featuring any point that appears to be significant with the purpose of finding this point rapidly by your professor while he is in a hurry? Something discloses to me that your plan is likely the last mentioned and, therefore, you start thoughtlessly highlighting. Such careless highlighting nullifies the likelihood of learning through “desirable trouble,” a rule that contends that when learning feels troublesome, your cerebrum remembers material better. highlighting is just a simple feel-great system. Your mind experiences no strenuous exertion to apply this procedure and, therefore, your brain absorbs no information.

Study techniques that help to memorize easily

There are some study techniques which require more effort but are more effective in the long run. In law school, you are asked to learn different things such as legal maxims, cases and many different and difficult words. Rather than pursuing this data and highlighting it, you read it first then try to understand it and afterwards what you understand, you should write it on a sheet of paper or on a sticky note as this will help you learn for a longer duration and this procedure makes easier for data to insert inside your mind. It was also said that learning by writing helps in remembering for a longer time. Research also says that when you pull a thought from your memory, you are fortifying the neural pathways related to it. There are certain methods also :

• In case, where there are different subjects you read it one by one. And, after that write it with a pen on a paper whatever you have to understand. And, after you have written it, match that it is correct or not. And, if it is not correct then correct it and revise daily what you have studied earlier. It will help you in remembering easily as you will read the same thing many times. It is more useful than highlighting a text.
• Another way is to make a diagram or a flowchart of the topic which you are studying and you know that our mind catches diagram and flow charts very fast and it is easy for you to remember. You can add these frameworks after each class instead of going back home and thinking about what the teacher taught today.
• In law subjects, there are many cases and it is difficult to remember all the cases. In such a situation, make a case brief or write it in points or make flow charts and write shortly what happened in the case in flow chart itself. This will also help you in remembering the case instead of highlighting the whole case.
• In case you are unable to understand any case, instead of highlighting the points start reading the sentences one by one and write in points what you understand. And, at last, read all points. Reading will enable you to understand. After you once understand it, you will be able to remember it easily.

Things being what they are, would it be a good idea for you to Dump every one of your Highlighters?

In no way, shape or form! Despite the fact that highlighting does next to no to help your memory, this strategy can really be a useful enhancement to considering whenever utilized accurately. Highlighting can be unquestionably useful if you use very little highlighting, rather than bouncing in and featuring everything that sounds great.

Accordingly, before hauling out your helpful highlighter, read the content first. This initial step is urgent in interpreting what is really significant. On the off chance that you realize what is significant, this can direct you in featuring or highlighting particular data from the content as opposed to featuring the entire page. Presently recollect that highlighting anything at all is pointless, use your highlighter whenever it is needed. As excess of everything is bad so don’t use the excess of highlighter as it distracts from the study. So, use highlighter but only when there is a great need for it.

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This article is written by Gururaj Mamdy, Student, School of Law, Christ University, Bangalore.  

Introduction

The concept of liberty in itself has raised a serious question, ‘What is the nature and limits of the power which can be genuinely practiced by society over the person?’ A question seldom stated, and hardly ever discussed, in general terms, however, which significantly impacts the pragmatic contentions of the age by its inert closeness, and is likely before long to make itself perceived as the essential inquiry without bounds. It is so distant from being new, that, in a specific sense, it has separated humanity, nearly from the remotest ages, however in the phase of advancement into which the more cultivated segments of the species have now entered, it presents itself under new conditions, and requires an alternate and more crucial treatment. The battle amongst Liberty and Authority is the most obvious component in the bits of history with which we are soonest recognizable, especially in that of Greece, Rome, and England. Be that as it may, in old occasions this challenge was between subjects, or a few classes of subjects, and the administration.

By freedom, was implied assurance against the oppression of the political rulers. The rulers were considered (aside from in a portion of the prevalent legislatures of Greece) as in an essentially opposing position to the general population whom they dominated. They comprised of an overseeing One, or a representing clan or position, who got their power from legacy or success; who, at all occasions, did not hold it at the joy of the administered, and whose matchless quality men did not wander, maybe did not want, to challenge, whatever safety measures may be taken against its abusive exercise. Their capacity was viewed as vital, yet in addition as exceptionally hazardous; as a weapon which they would endeavor to use against their subjects, no not exactly against outside adversaries. To keep the weaker individuals from the network from being gone after by countless vultures, it was needful that there ought to be a creature of prey more grounded than the rest, dispatched to hold them down. In any case, as the lord of the vultures would be no less twisted after going after the rush than any of the minor shrews, it was imperative to be in a ceaseless state of mind of guard against his mouth and hooks.

The aim, along these lines, of patriots, was as far as possible to the power which the ruler ought to be endured to practice over the community; and this confinement was what they implied by freedom. It was endeavored in two different ways. In the first place, by getting an acknowledgment of specific insusceptibilities, called political freedoms or rights, which it was to be viewed as a rupture of obligation in the ruler to encroach, and which, in the event that he infringed, particular obstruction, or general resistance, was held to be reasonable. A second, and by and large a later catalyst, was the foundation of established checks; by which the assent of the network, or of a body or something to that affect expected to speak to its interests, was made an essential condition to a portion of the more vital demonstrations of the representing power. To the first of these methods of confinement, the decision control, in most European nations, was constrained, pretty much, to submit. It was not so with the second; and to achieve this, or when as of now in some degree had, to accomplish it all the more totally, turned out to be wherever the important protest of the admirers of freedom. Thus long as humanity were substance to battle one foe by another, and to be governed by an ace, on state of being ensured pretty much usefully against his oppression, they didn’t convey their desires past this point.

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Paradox of liberty

The study of liberty in itself has provided various perspectives and possibilities of liberty, whether it is a positive obligation or a mandate of the state or a restriction of rights of certain section of the society etc. Thus the concept of liberty in itself is vast and vibrant covering different scopes and aspects. In case of positive obligations, In the polls, citizens care about and fight over public interest. Government plays a coordinating role of cooperative ventures. There are certain situations where public interest is put over a person’s liberty, such as to contribute to common defense or to testify in court or any other work for the betterment of the society. Apart from these responsibilities, there are certain basic duties such as payment of taxes, honoring contracts, giving up land for public projects(eminent domain), obey the laws of the land etc. But the police will punish a driver for running a red light even if he does not cause any harm to others. This paradox was solved as following the government rules both prevent the driver from harming himself and being a threat to the society. Thus in certain situations you have to sacrifice your personal liberty to have a larger public good.

The different concept of liberty, paternalism. Can government impose any rules and regulations on its citizens without keeping in mind an individuals rights and liberties? Should the government be imposing taxes and duties on its citizens blatantly? A persons own good, either physical or moral, is not a sufficient warrant for interference with his liberty of action. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise or even right. Their are exceptions to this understanding Society can legitimately prevent people from entering into contracts to enslave themselves, even though no one but the slave is harmed by slavery. It exemplifies a larger issue in contemporary policy: are there other situations in which people’s freedom to choose a course of action should be denied in order to preserve other choices in the future? Paternalism in itself violates norm of equal voice, keeping in mind the argument of expertise, whether experts should be given the decision making power or the general audience should have the autonomy?

What is the extent to which the government can control a person’s liberty, his rights and his behavior in the society? There are various instances where the government in present day situation has in the name of larger public good curtails a persons rights. There are various provisions in the Indian Constitution that in a way try to impose restrictions and curtail a individuals liberty. The Freedom of Religion: Certain beliefs and practices which are religious in nature are sometimes curtailed by the Apex Court by stating the reason of public policy. The case of Acharya Jagadeshwaranad Aradhuka v. Commissioner of Police Calcutta; [AIR 1984 SC 51], Anand Margi’s cult which belongs to saiviti order used to practice ‘tandav dance’, he wanted to perform tandav on the streets of Calcutta with skulls, snakes etc. The HC denied the plea, hence the petitioner pleaded that Art.25 Right to Freedom of Religion is violated and they should be allowed to do the act. Whether the act of commissioner of police to prevent these people from performing the act was right? Whether the liberty of these individuals was curtailed and was it their liberty to perform such act? The HC gave the answer that the act was not a religious denomination and it was not a essential practice and hence their act is not justified. Also the practice of fasting to death in Jainism was challenged by the state, stating it is suicide and it cannot be allowed, there was a case filed in the High Court, Nikhil Soni v Union Of India; discussing the importance of the practice under Jainism and whether the practice is violative of public policy? The judgment on the matter is yet to be out…

Conclusion

To decide the time when shades of malice, so imposing to human flexibility and headway start, or rather at which they start to prevail over the advantages going to the aggregate utilization of the power of society, under its perceived boss, for the expulsion of the hindrances which hinder its prosperity, to anchor as a significant part of the benefits of brought together power and insight, as can be had without transforming into administrative channels excessively extraordinary an extent of the general movement, is a standout amongst the most troublesome and confounded inquiries in the craft of government. It is, in an awesome measure, an issue of detail, in which numerous and different contemplations must be kept in see, and no supreme lead can be set down. In any case,the viable rule in which security dwells, the perfect to be kept in see, the standard by which to test all courses of action planned for conquering the trouble, might be passed on in these words: the best scattering of intensity steady with productivity; however the best conceivable centralization of data, and dispersion of it from the inside. Along these lines, in city organization, there would be, as in the New England States, an exact moment division among discrete officers, picked by the regions, of all business which isn’t better left to the people straightforwardly intrigued; yet adjacent to this, there would be, in every bureau of neighborhood issues, a focal superintendence, shaping a branch of the general government. The organ of this superintendence would think, as in a center, the assortment of data and experience got from the lead of that branch of open business in every one of the areas, from everything practically equivalent to which is done in remote nations, and from the general standards of political science. This focal organ ought to have a privilege to know all that is done, and its unique obligation ought to be that of making the information procured in one place accessible for others. Liberated from the trivial partialities and thin perspectives of a territory by its raised position and far reaching circle of perception, its recommendation would normally convey much specialist; however its genuine power, as a perpetual foundation, should, I consider, be constrained to convincing the neighborhood officers to comply with the laws set down for their direction. In all things not accommodated by general principles, those officers ought to be left to their own particular judgment, under obligation to their constituents.

For the infringement of guidelines, they ought to be dependable to law, and the principles themselves ought to be set around the governing body; the focal authoritative specialist just viewing over their execution, and on the off chance that they were not legitimately conveyed into impact, engaging, as indicated by the idea of the case, to the court to authorize the law, or to the bodies electorate to reject the functionaries who had not executed it as indicated by its soul. Such, in its general origination, is the focal superintendence which the Poor Law Board is planned to practice over the managers of the Poor Rate all through the nation. Whatever powers the Board practices past this point of confinement, were correct and fundamental in that particular case, for the fix of established propensities for mal-organization in issues profoundly influencing not the territories just, but rather the entire network; since no region has an ethical ideal to make itself by bungle a home of pauperism, essentially flooding into different regions, and disabling the good and physical state of the entire working network. The forces of regulatory compulsion and subordinate enactment controlled by the Poor Law Board (yet which, inferable from the condition of conclusion regarding the matter, are sparsely practiced by them), however flawlessly legitimate for a situation of a top notch national intrigue, would be completely strange in the superintendence of interests absolutely nearby. Be that as it may, a focal organ of data and guideline for every one of the territories, would be similarly important in all branches of organization. An administration can’t have excessively of the sort of movement which does not hinder, but rather helps and empowers, singular effort and improvement.

The fiendishness starts when, rather than considering forward the movement and forces of people and bodies, it substitutes its own particular action for theirs; when, rather than educating, exhorting, and upon event reproving, it influences them to work in shackles or offers them stand aside and does their work rather than them. The value of a State, over the long haul, is the value of the people creating it; and a State which delays the interests of their psychological extension and height, to somewhat more of authoritative aptitude or that similarity of it which hone gives, in the points of interest of business; a State, which predominates its men, all together that they might be more mild instruments in its grasp notwithstanding for advantageous purposes, will find that with little men no awesome thing can truly be expert; and that the flawlessness of hardware to which it has yielded everything, will at last benefit it nothing, for need of the indispensable power which, all together that the machine may work all the more easily, it has wanted to expel.    

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This article has been written by Ravi Shankar Pandey, a first-year student of Dr. Ram Manohar Lohia National Law University, Lucknow. In this article, he discusses the 1st amendment to the Indian Constitution through the insertion of Article 31B and ninth schedule along with the evolution of the doctrine of basic structure in the light of various judicial pronouncements.

Introduction

Whenever any new law is implemented in India or any amendment to existing law is made, if it does not comply with constitutional norms, is nullified or reverted.  But, this is not the same for every law which is enacted and the exception in such cases are backed under Article 31B. If any law is kept under 9th schedule, it goes unchallenged even if it violates the FRs (Fundamental Rights). But, in judgements followed, it is now well established that although there is a constitutional validity of such laws and government is entitled to place any law under the  umbrella of 9th schedule, there are also prone to judicial scrutiny if they do not comply with “basic structure doctrine” established in the landmark judgement of Keshavananda Bharati.

What is a Judicial Review?

Judicial review may be defined as “scrutiny of the decisions made by the legislature and executive, by the judiciary to check whether they are in consonance with constitutional values and ideals of equity, justice and good conscience”. This prevents the decision making bodies to act against public welfare and restricts them from making laws for their own good.

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Background

9th schedule along with Article 31B was added in 1951 through the first amendment in Indian Constitution. It was meant to enact some new laws which were important to transform India into a more egalitarian society. The amendment was the need of the hour as in the case of Kameshwar Singh v. The State of Bihar, government’s decision to classify zamindars into different categories for procuring their land was criticized by the judiciary and it was a major setback as the Court stated that doing so was a violation of Art. 14 that guarantees equal protection of laws to the citizens as such classification was discriminatory.

Article 31B states that, “none of the Acts and Regulations specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void, or ever to have become void, on the ground that such Act, Regulation or provision is inconsistent with, or takes away or abridges any of the rights conferred by, any provisions of this Part, and notwithstanding any judgment, decree or order of any court or tribunal to the contrary, each of the said Acts and Regulations shall, subject to the power of any competent Legislature to repeal or amend it, continue in force”.

Hence, when any legislation is kept under the 9th schedule, it does not matter whether it violates the fundamental rights of a person. This provision restricted the rights of the judiciary and on other hands, increased the power of the legislature. Hence, it started the conflict between the judiciary and the government.

Features of Art. 31B

• Retrospective in nature- If an act is held unconstitutional and thereafter is put under 9th scheduled it will be considered as its part since its commencement.

Jeejeebhoy v. Assistant Collector— the court stated that “Article 31B shows that it is a drastic and novel method of an amendment”.

• To protect property rights- Article 31B was inserted in the constitution for legislation governing rights relating to the property. But, in the years following, it has resulted in the insertion of other laws also for purposes other than that related to society and economics.

9th Schedule

The 9th schedule was drafted by the first government of independent India in the tenure of J L Nehru. It represents a drastic but innovative technique of amending the Indian Constitution. It is a method to bypass the judicial review and judicial scrutiny. Any act which is added under the 9th schedule gets resistant from any encroachment from judiciary even if it infringes the fundamental rights of an individual.

The result of the clash of ideology between the conservative judiciary and progressive and growth-oriented legislature and executives, it was added to cover only a few legislations under its ambit, but with the passage of time, the government used it as a blanket for many types of legislation covering over 250 Acts in the present.

Objectives

1. To implement various land reforms, after independence.
2. Abolition of Zamindari system in order to put an end to feudalistic society and to provide a pavement for socialism to take its place.
3. To immunize certain legislations which act as a blockade in bringing reforms and that have the potential to infringe fundamental rights.
4. To uphold the interests of weaker sections of the society by bringing them at par with the other sections of the society.
5. To meet the constitutional goal of establishing an egalitarian society and to reduce the concentration of land in few hands by dividing it into the farmers.

Nature and Scope of Article 31B combined with the 9th schedule

It is now an established fact that the Ninth Schedule has transformed itself to become a dustbin and house for each disputed law which is passed by the lawmaking body. Such a circumstance was not conceived at that time when the First amendment was made to the Indian Constitution. It is contended here that a right elucidation of the language of Art.31-B can adequately end this problem.

Arts.31-A (1) and 31-B are planned to work as insurance against results which could somehow or another mean lead to the breach of the constitutional rights specially, the fundamental rights granted under part 3. Enactment falling under any piece of Art.31-A (1), including the arrangements, can likewise get insurance under Art.31-B. In this association, to know further about the connection between Arts. 31-A and 31-B, Professor A.R. Blackshield’s observation is pertinent to the discourse. He considered the opening expressions of Art.31-B (Without reference to the consensus of the arrangements contained in Art.31-An) as the basic interconnection between Articles 31-A and 31-B. That gives ascend to a derivation that Article 31-B read with Ninth Schedule is particularization of Article 31-A in itself.

But sadly, the legal methodology on this issue isn’t on the above lines, due to the outcome that Ninth Schedule has become a ready weapon for ensuring presence of illegal laws based on time, subject and space.

In Vishweshwara v. State of Madhya Pradesh, the Court observed Art.31-B as free of Art.31-A. From there on, the opening expressions of Art.31-B were translated by the Court in N.B. Jeejeebhoy v. Assistant Collector, Thana by suggesting that “the Demonstrations and guidelines indicated in the Ninth Schedule would have the insusceptibility regardless of whether they didn’t pull in Art.31-A of the Indian Constitution.” The Court’s reasoning was based on the fact that “if each Demonstration in the Ninth Schedule would be secured by Art.31-A, this Article would become repetitive.” Further, they got support from the presence in the Ninth Schedule of laws irrelevant and reasoned that Art.31-B was not represented by Art.31-A.

It is submitted that this approach is quite deceptive, and the correct conclusion was stated by J. Bhagwati by an in-depth analysis in the celebrated judgment of Minerva Mills v. Union of India, when he expressed that “the Ninth Schedule of Art.31-B was not planned to incorporate laws other than those secured by Article 31-A.” In such manner, it is submitted that the right translation of the expression ‘without reference to the sweeping statement of Art.31-A’ can be understood through the accompanying method. The ambit of Article 31 is able to expand itself to cover five kinds of laws, comparing to sub-provisos a) to e) of its first clause. Presently, by giving that Art.31-B does not take away from the sweeping statement of Article 31-A, what is implied is that in spite of the fact that a law might be incorporated into the Ninth Schedule under Article 31-B, it, in no manner deprives a person of his rights that are protected under Article 31-A.

Evolution of the Concept of Judicial Review

Judicial Review plays an important part in the enforcement of the rights granted under the Indian Constitution. By acting as a cornerstone for the principle of constitutionalism, it may be justified as it upholds the principle of the rule of law and the doctrine of separation of powers. Basically, it comprises the power of the Courts to render any law or order, unconstitutional or void based on its inconsistency with the basic motto behind the law of the land.

Prior to studying the role of the judiciary in reviewing the laws inserted under the 9th schedule, it’s important, firstly to discuss the history and evolution of judicial review. The Arthashastra, written by Chanakya, Smritis, and, Dharmashastras may be counted as one of the earliest sources that show the existence of the judiciary. The time when they were written had the firm belief that the law is always above the rule so that the government cannot enforce a law which is tyrannical in nature. Although the King was considered as the fountain and prominent source of justice, he himself was expected to resolve all disputes based on the principle of Dharma. Even during the Mughal period, the highest judge in the kingdom used to be the King.

Similarly, in ancient Greek also, the philosophers emphasized in the welfare of people and their relation with law, and opposed every law which was unjust and tyrannical. Aristotle by interpreting the philosophies of Plato in a more practical form concluded that “the nature of the law should be in consonance with Constitutional values.

In the UK and USA, the advent of judicial review emerged much earlier in comparison to India. In Britain, it was due to Lord Coke’s instrumental role in Dr. Bonham’s case (1610) which ascertained that the Common law is always above the House of Commons. Similarly, in the USA, the judicial review was established in the case of Marbury v Marsden but the doctrine traces its origin to the Bonham case which is regarded as a social and political heritage from Britain. The judgement in Marbury derived the doctrine of judicial review from the written constitution itself and subsequently designated the constitution as the supreme law and States the need for a more rigorous statutory interpretation.

In India, during the post-independence period, due to the emergent need of enforcing the individual as well as the group rights, the concept of judicial review was considered as a necessity. In the broader scale there are mainly three aspects of judicial review, they are-

• Judicial review of administrative actions
• Reviewing Judicial pronouncements, and
• Review of the action of the legislature.

Unlike in the USA, where the nature of the judicial review is more substantial, India has a more procedural review system. In addition, Indian Judicial review has its root directly in several Articles of the Indian Constitution e.g. Article 13, 32, 131 to 136, 143, 226 and 227 etc. which is not a case in countries like the USA.

Importance of Judicial Review

Judicial review, as has been mentioned earlier, due to its inherent nature with Constitutional norms, is responsible for balancing the interests and powers of different organs of the government and in assisting in the maintenance of control by marking a boundary to limit uneven encroachment of the authorities towards a person’s constitutional rights and among themselves. It’s important to state Dr. B. R. Ambedkar’s observation on judicial review. He remarked in the Constitutional Assembly,

“If  I was asked to name any particular Article in the Constitution as the most important, it is Article 32 without which the Constitution would be a nullity- it would not refer to any other Article except this one.  It is the very soul of the Constitution and the very heart of it and I am glad that the house had realized its importance”.

Judgements after the 1st amendment

Initially after the institution of Art. 31B and 9th schedule, the court agreed with the government that such provisions are necessary for agrarian reforms and in the establishment of equality on a larger level. But, the tussle between judiciary started from the case of Golaknath v. State of Punjab (1967) and continued until landmark judgement in Keshavananda Bharati (1973).

The facts of the Golaknath case- The Golaknath family owned 500 acres of land in Punjab. But, due to Punjab Security and Land Tenures Act of 1953, they were only allowed to keep 30 acres of land with them. They challenged the act on the grounds of violation of their fundamental rights of property. The foremost question before the court was- Can fundamental rights be amended?

Judgement- the Parliament cannot curtail the fundamental rights of an individual.

1. Keshavananda Bharati v. State of Kerala– The court upheld the judgement in Golaknath and introduced a new concept of “Basic structure of the Indian Constitution” and stated that, “all provisions of the constitution can be amended but those amendments which will abrogate or take away the essence or basic structure of constitution which included Fundamental Rights are fit to be struck down by the court”.
2. Waman Rao v. Union Of India– In this important judgement, the Apex Court ruled that, “those amendments which were made in the constitution before 24th April 1973 (date on which judgement in Keshavananda Bharati was delivered) are valid and constitutional but those which were made after the stated date are open to being challenged on the ground of constitutionality and the State is only immunized for its acts before the judgement in Keshavananda Bharati. This is also known as “Doctrine of Prospective Over-Ruling” which means that ‘only what follows after is bound to abide by the rules and what has happened earlier will not be taken in the account’
3. I R Coelho v. State of Tamil Nadu-Two important questions were referred to the higher bench by the constitutional bench of 5 judges which remained unanswered in the judgement in Waman Rao. The questions were,

1.  Can an Act or the part which violates Arts. 14, 19 or 21 be included in 9th schedule?
2.  Is it mandatory that only a constitutional amendment which destroys the basic structure be struck down?

Judgement- It was held that every law must be tested under Art. 14, 19 and 21 if it came into force after 24th April 1973. In addition, the court upheld its previous rulings and declared that any act can be challenged and is open to scrutiny by the judiciary if it is not in consonance with the basic structure of the constitution. In addition, it was held that if the constitutional validity of any law under the ninth schedule has been upheld before, in future it cannot be challenged again. Thus, it put a check on the legislature to formulate laws so that they do not take away the rights of the citizen and thus settled all the dilemmas prevailing over the law under the 9th schedule.

The Doctrine of Basic Structure

The doctrine of basic structure is established on the basis of the difference between constituent power which is considered as the original power of framing the constitution and the nature of constituent power which the Parliament possess through the aid of Article 368. It is argued that by adding the words “constituent power” in Article 368, the parliament cannot be considered similar to the Constitution Assembly. It is always the Parliament which must follow the laws established through a controlled Constitution.

While evolving, the issue which was mainly examined was the issue of ‘use of the device under Article 31B to immunize the laws under ninth schedule’. In Waman Rao, the court answered in the affirmative by making the part three of the constitution inapplicable to such laws which were incompatible with basic structure doctrine and were placed under the ninth schedule. It was stated by the apex court that such act of the legislature of putting the laws violative of fundamental rights under the ninth schedule will remove the control over legislative power and will render the basic structure doctrine redundant.

In addition, it is worth mentioning that the whole purpose of the basic structure doctrine is to save the golden triangle of article 21 read with articles 14 and nineteen excluding the entire part 3 of the constitution from the effect of the laws placed under the ninth schedule.

Scope of judicial review for laws placed under 9th Schedule

Before discussing further, in one word it may be said that the scope of reviewing the laws placed under 9th schedule is limited. The first amendment was brought by the parliament after the Kamleshwar case and with the insertion of article 31B along with the 9th schedule for giving effect to agrarian reforms. The provisions inserted were made to provide immunity to the laws inserted under them from judicial encroachment.

After the first amendment, the major landmark case in which the question of immunity granted to parliament was presented before the court was the case of Shankari Prasad. It was asked that whether Article 31B read with schedule 9 was unconstitutional by excluding the scope of judicial review. It was contended that excluding judicial scrutiny for such laws will amount to a violation of Article 13(2).

The Court rejected the petition by stating that “there is a chart clear demarcation between ordinary law and constitutional law, and so, the amendments made under Article 368 are not affected by the application of article 13 (2). In addition, the parliament under Article 368, is empowered to amend the fundamental rights also and at such instances judicial encroachment is impermissible.

But, at a later stage, in Golaknath case, it was held that the parliament has no power to amend the fundamental rights including the provisions on personal property. The parliament aggrieved by the judgement in Golaknath, passed the 24th amendment in 1971, which empowered it to amend any part of the Constitution including the fundamental rights.

This stage i.e. the years following 24th amendment may be considered as the years of a tussle on the issue of power and authority between the legislature and the Indian Judiciary which followed its course until the landmark judgement in Kesavananda Bharati (24 April 1973).

In its decision in Kesavananda Bharati case, the Apex Court through its largest constitutional bench of 13 judges stated that “although the amendments made under Article 368 are Constitutional, the court is entitled to reject any of them if their nature is such that ‘they may violate the basic structure of the Indian Constitution”. The criteria would be to check whether the concerned statute has the potential to violate any article which acts as a touchstone for the whole Indian Constitution.

This case put a check on the enormous power of the parliament through the introduction of basic structure doctrine and made the judiciary more powerful. This case is also regarded as the saviour of Indian democracy.

However, when a similar matter reached the court in Indira Gandhi v Raj Narain, regarding 39th amendment by the parliament which added some controversial laws under the ninth schedule, the court held that “ordinary laws placed under 9th schedule cannot be subjected to basic structure test and only the constitutional amendments which are made through Article 368 are prone to judicial scrutiny if they are violative of basic structure.

But, even after the judgement in the Keshavananda Bharati case, the legislature tried to threaten judicial review by passing the 42nd amendment which again opened the way for amending the fundamental rights. However, this fraud which was committed by the parliament through 42nd amendment was later corrected by the Apex Court in Minerva Mills case.

In Minerva Mills, the Supreme Court struck down clauses 4 and 5 which were added to Article 368 through 42nd amendment and observed that “the donee of a limited power cannot convert his limited power into unlimited one by exercising the power that he possesses”. The doctrine of basic structure and the judgement in the case of Minerva Mills was later affirmed in many subsequent judgements including Waman Rao v Union of India, I R Coelho and M Nagaraj.

Conclusion

While concluding, it may be stated that it was some sort of deliberate attempt of the constitution framers to exclude the scope of judicial review for the laws placed under the ninth schedule. This is evident from the fact that the nature of the right to property was, from its inception, such to invite various disputes. However, the misuse of Article 31B and ninth schedule started only after the 4th amendment when few non-agrarian laws were excluded from the scope of judicial scrutiny.

But ultimately, due to the intervention of the Apex Court from Shankari Prasad to Keshavananda Bharati had ensured to put a check on the powers of the law making body by describing the basic structure of the Indian Constitution. It may be stated that when the parliament deleted the law of the right to property through the 44th amendment, it should have amended the provisions of the ninth schedule to allow judicial review. But, it didn’t happen and thus, Article 31B along with ninth schedule continued to act as a blanket of the parliament to include any law that it considers fit and proper, opening the possibility of the abuse and misuse of 9th schedule.

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This article is written by Shaantanu Krishnan, Student, School of Law, Christ University, Bangalore. In this article, the author has discussed legal issues involving the name clause of Memorandum of Association of a company. Further, the author has also compared the position of law regarding the name clause in the Memorandum of Association in the Companies Act of 1956 and of 2013.

Introduction

The name clause of the Memorandum of Associations of a company as mentioned under Section 4(i)(a) of the Companies Act, 2013 specifies the name of the concern, which can be changed under certain circumstances and procedures as specified by the law unless the company is incorporated under Section 8 of the Companies Act, 2013. The name clause plays a crucial role and involves lengthy procedures to be followed in order to merely change the name of the company. To draw a parallel between the Companies Act 1956 and Companies Act 2013 and to provide a comparative analysis between the two with respect to development or alteration in the procedure of changing the name clause under the respective Companies’ Acts. It is also has been analyzed the Companies (Incorporation) Rules 2014 for a detailed analysis of procedures and guidelines relating to the change of the name of a company.

Company Law in India

At the point when the British colonized India, they brought numerous British frameworks into India counting the control of business entities by statutory direction as a Companies Act.

The primary Indian Companies Act was proclaimed in 1850 by the English and depended on British enactment. The Indian Companies Act was at that point altered occasionally and the changes were additionally in view of improvements in British Company law. At the season of freedom, the Indian Companies Act 1913, as corrected by the Indian Companies Bill 1936, in view of the British Companies Acts 1908 and 1929, was in power. When India gained independence in 1947, the Indian Government held the utilization of a Companies Act to control business entities, however, chose to change the Indian Companies Act in force when India got independence.  

This prompted the proclamation of the Companies Act 1956, which secured the advancement and development of organizations, the control of organizations by investors, the situation of minority investors, the arrangement, states of administration, powers, duties and elements of executives and overseeing operators, organization records and review, examination and assessment of organizations by Government, liquidation of organizations and the organization and implementation of the Companies Act.

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Comparative Analysis between Companies Act 1956 and Companies Act 2013

With respect to change of name of a company, the provisions of the Companies Act 1956 are different from the Companies Act 2013 in a few ways. Alteration of Memorandum as a result of Change in Name of a company under the Companies Act, 1956 is governed under Section 20 and Section 21 of the aforementioned Act, which is as follows;

“20. Companies not to be registered with undesirable names

(1) No company shall be registered by a name which, in the opinion of the Central Government, is undesirable.

(2) Without prejudice to the generality of the foregoing power, a name which is identical with, or too nearly resembles,-

(i) The name by which a company in existence has been previously registered, or

(ii) A registered trademark, or a trademark which is subject of an application for registration, of any other person under the Trade Marks Act, 1999, may be deemed to be undesirable by the Central Government within the meaning of sub-section (1).

(3) The Central Government may, before deeming a name as undesirable under clause (ii) of sub-section (2), consult the Registrar of Trade Marks.”

And Section 21 as follows;

“21. Change of name by company

A company may, by special resolution and with the approval of the Central Government signified in writing, change its name.

Provided that no such approval shall be required where the only change in the name of a company is the addition thereto or, as the case may be, the deletion therefrom, of the word “private”, consequent on the conversion in accordance with the provisions of this Act of a public company into a private company or of a private company into a public company.”

Although Section 20 doesn’t particularly govern the procedure and aspects of law relating to change of name of a company,  it is nonetheless crucial because it lays down conditions which have to be abided by, which governs the types of names that can be given to a company.

Thus, as evident from the Section, a change in the name of a company under Section 21  and of the Companies Act, 1956 is possible by two means;

1. By special Resolutions and Permission of the government: The name of a company may be changed at any time by passing a special resolution at a general meeting of the company and with the written approval of the central government. However, no such approval is required if the change of name involves addition or deletion of the word “private”.
2. By rectification of omission in name: If by a mistake a company has registered its name which is same or similar to the name of an existing company, the company may change its name by passing an ordinary resolution and getting written permission from the Central government. In such a case, the central government in one year of the first registration or registration under a changed name can direct the company to change its name. In such a situation, the company must alter its name by passing an ordinary resolution in three months from the date of such direction.

The change of the name of the company doesn’t result in a change in the power and of the same. As a result of this change, the name legal affairs of the company are not affected. However, after the new name is registered, the legal affairs cannot be continued with the old name. This contention was observed in the case of Malhati Tea Syndicate v. Revenue Officer  

The Companies Act, 1956 was under review for a while because of the spontaneous changes to the economic and financial atmosphere nationally as well as globally.  

Thus as a result of these changes in the international environment, the Companies Act 2013 was enacted.

The goal behind the 2013 Act is fewer government endorsements and improved self-directions combined with an accentuation on corporate majority rules system. The 2013 Act delinks the procedural angles from the substantive law and gives more adaptability to empower adjustment to the changing monetary and specialized condition. Under this Act, it enables the Central Government to control the development, financing, working and winding up of organizations. It contains the component in regards to hierarchical, budgetary and administrative and all the significant parts of an organization.

The Companies Act, 2013 was consented by the President of India on 29 August 2013 and distributed in the Official Gazette on 30 August 2013.

Under the Companies Act 2013,  Alteration of Memorandum as a result of Change in Name of a company is governed under Section 13 (2) and (3) read with Section 4 (2) and (3) of the aforementioned Act, which reads as follows;

“(2) Any change in the name of a company shall be subject to the provisions of subsections (2) and (3) of section 4 and shall not have effect except with the approval of the Central Government in writing:

Provided that no such approval shall be necessary where the only change in the name of the company is the deletion therefrom, or addition thereto, of the word ―Private‖, consequent on the conversion of any one class of companies to another class in accordance with the provisions of this Act.

(3) When any change in the name of a company is made under sub-section (2), the Registrar shall enter the new name in the register of companies in place of the old name and issue a fresh certificate of incorporation with the new name and the change in the name shall be complete and effective only on the issue of such a certificate.

And Section 4 (2) and (3) are as follows;

(2) The name stated in the memorandum shall not—

(a) be identical with or resemble too nearly to the name of an existing company registered under this Act or any previous company law; or

(b) be such that its use by the company—

(i) will constitute an offence under any law for the time being in force; or

(ii) is undesirable in the opinion of the Central Government.

(3) Without prejudice to the provisions of sub-section (2), a company shall not be registered with a name which contains—

(a) any word or expression which is likely to give the impression that the company is in any way connected with, or having the patronage of, the Central Government, any State Government, or any local authority, corporation or body constituted by the Central Government or any State Government under any law for the time being in force; or

(b) such word or expression, as may be prescribed, unless the previous approval of the Central Government has been obtained for the use of any such word or expression.

In a basic reading of Sections 13 (2) and (3) read with Section 4 (2) and (3), it is obvious to notice that, with respect to change of name of a company, Section 13 (2) and (3) establishes the consequence of name change of a company while Section 4 (2) and (3) lays down the criteria to keep  in mind while naming or re-naming a company.

Comparing the provisions relating to change of name of a company in the 1956 and 2013 Act, the 1956 Act, in Section 20 (2) (ii) restricts a person from naming a company which would violate a registered trademark or a trademark which is subject of an application for registration, of any other person under the Trade Marks Act, 1999.

This particular provision in the Companies Act 1956 isn’t included in the Companies Act 2013 and the Companies Act 2013, governs the criteria for a name of a company in a different manner by the way of delegating power to the central government to notify the general public by rules comprehensively laying down criteria or the same.

One such example of this is the Companies (Incorporation) Rules of 2014, under which Rule 8 and Rule 9 which talks about undesirable names and reservation of name respectively.

Rule 8 goes on to comprehensively cover what all can be covered under the garb of undesirable (which also includes identical) names such as, the plural version of words, type and case of letters (including punctuation), misspelt words, either intentionally or not will not conflict the properly spelt name of another company.

The element of trademark violation of under Section 20 (2) (ii) of the Companies Act 1956, has been included in the Companies (Incorporation) Rules 2014 in Rule 8 (2) (ii).

With respect to reservation of a name, the Companies Act 2013 under Section 16 incorporates Section 22  of the Companies Act 1956, with certain notable changes such as the change in time period within which the company has to comply with the direction of the Central government to change its name from 3 months to 6 months.

Conclusion

Drawing a parallel between the Companies Act 1956 and Companies Act 2013, it can be concluded that the Companies Act 2013, unlike Companies Act 1956 divides the procedure into two parts by prescribing guidelines to be followed while renaming a company separately in Section 4 (2) (3) of the Act and the Companies (Incorporation) Rules 2014, while the Companies Act 1956 laid down how the change has to be done with respect to procedures to be complied with.  

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This article has been written by Ravi Shankar Pandey. He is a 1st-year law student from Dr. Ram Manohar Lohia National Law University, Lucknow. In this article, he explains the development of Constitutional tort in India, its origin and application under the purview of some landmark judgments.

Introduction

Vicarious liability is the liability that lies upon a person for an act done by someone else. It comes into play often in master-servant relationships. Constitutional Tort is generally a judicial instrument by which the state can be held vicariously liable for the acts of its servants.

It’s the legal action to get legal remedy in the form of damages when any of the constitutional rights are violated.[1] The only exception lying is that it cannot be made liable if the act is done in exercise of sovereign (government) functions.

The origin of Constitutional law may be traced back to the time when the common medieval saying of “Res Non-Potest Peccare” i.e. ‘the king can do no wrong’ (as the king was considered the son of God) started losing its acceptance in the eyes of the public. After the 18th century, with the advent and emergence of new democracies and industries, it became important to take acts done with state’s authority under judicial scrutiny so that, those who suffered from such acts may get justice in due course.

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Evolution in India

As there is no legislation which specifies the vicarious liability of the state for the torts committed by its servants, it is under Article 300 of The Constitution of India, 1950 by which enumeration of the right to file a suit comes from.

Art. 300 gives the right to the public to sue the state. While it came into force after the implementation of the Constitution in 1950, similar provisions were also there in Government of India (hereafter GOI) Act of 1935 under article 176 which has similar provision as in GOI Act of 1915 and of 1858 under Articles 32 and 65 respectively. Article 65 of the GOI Act of 1865 read, “All persons and bodies politic shall and may have and take the same suits, for India as they could have done against the said Company.” [2]

As the Government succeeded the company in administration i.e. East Indian Company, the liability of the government similar as it was with the company before 1858.

Article 300

Suits and Proceedings [4]

(1) The Governor of India may sue or be sued by the name of the Union and the Government of a State may sue or be sued by the name of the State and may, subject to any provisions which may be made by the Act of Parliament or of the legislature of such State enacted by virtue of powers conferred by this Constitution, sue or be sued in relation to their respective affairs in the like cases as the Dominion of India and the corresponding Provinces or the corresponding Indian States might have sued or been sued if this Constitution had not been enacted.

(2) If at the commencement of this Constitution,

(a) any legal proceedings are pending to which the Dominion of India is a party, the Union of India shall be deemed to be substituted for the Dominion in those proceedings; and

(b)  any legal proceedings are pending to which a Province or an Indian State is a party, the corresponding State shall be deemed to be substituted for the Province or the Indian State in those proceedings.

A general reading of part 1 of the Article tells about suing the state and other dominions by their name in the same way as they have been if the constitution had not been enacted. Part 2 talks about pending legal proceedings against the state and provides to substitute dominion of India with Union of India and province with Indian State respectively in clauses (a) and (b).

Landmark judgements on Constitutional Tort

1. P & O Navigation Company v Secretary of State for India– This was the first case in which the Sovereign immunity of the state was debated. There was a piece of a funnel made up of iron which was being carried by some workers on a Government’s steamer, which in its way hit plaintiff’s horse-driven carriage. Plaintiff sued the Govt. for damages due to negligence on the part of the servants employed by the govt.

Held- “The Government cannot be held liable when the injuries are caused while carrying out sovereign functions but is liable when the acts of the servants are non-sovereign functions”.

2. Nobin Chunder Dey v Secretary of State– When the Plaintiff pleaded for damages for refusal of Government to give him licence to sell liquor and drugs, it was held that it was out of sovereign functions of the state and thus, is out of reach of tortious liability. Since this decision, the distinction between sovereign and non-sovereign functions is the foremost criteria that are looked into by the courts in their judgements.
3. Rajasthan v Mst. Vidyawati– The facts were that in this case- a Government jeep hit a pedestrian who eventually died of an accident. The plea of Sovereign immunity was rejected but it was held that the government cannot be held liable for the “Act of State” under Article 300. Compensation of Rs. 15000 was given. The Hon’ble Supreme Court stated that “in the modern era, the liability of State is not limited to Sovereign functions, but is socialistic and is related to the welfare of the people and thus, the old immunity of State functions is irrelevant”.
4. Kasturi Lal v State of Uttar Pradesh– The police seized the gold which belonged to the Plaintiff. The head constable later misappropriated the gold and flew with it to Pakistan. The Court did not take account of the judgement in Vidyawati case and ruled in favour of the State stating that the act was sovereign in nature. It was held that the law established in P & O Navigation is still good law. The court was not pleased as it could help the Plaintiff with its ruling. Through this judgement, in addition to disapproving the law in Vidyawati, it was also added by the Court that the state is not liable when the tort is done in statutory power by its servants.
5. N. Nagendra Rao v State of Andhra Pradesh– It was held that the ratio of Kasturi Lal is applicable in rare cases only where the statutory authority to carry out certain functions are delegated. In any civil society, the state cannot be allowed to play with the rights of the citizens and take the plea of sovereign function and thus, it cannot be treated above and against the rule of law.
6. Devaki Nandan Prasad v State of Bihar– In this landmark ruling, the Apex court laid the foundation of new reasoning in matters involving constitutional tort and compensation. In this case, the plaintiff who has been denied his pension, without much discussion, was allowed to recover exemplary damages of Rs. 25000 for being harassed by the defendant deliberately.
7. Rudal Shah v State of Bihar– In this case, the petitioner had filed a case against the state for his illegal imprisonment for 14 years and asked for compensation and rehabilitation cost. The question presented before the Apex court was whether the court can award monetary damages under its jurisdiction as given in Article 32 or not.

The court gave the answer in affirmative by stating that monetary damages under article 32 may be granted and thus gave a judgement that proved to be a giant leap in the cases involving both constitutional tort and compensation.

The judgement formulated two landmark rules by holding that:

1. Civil liability can arise when constitutional rights are violated.
2. Civil liability can also emerge when there is a violation of personal liberty.

8. Saheli v Commissioner of Police– In this judgement, the ratio in Vidyawati was revisited and upheld by its application. When a child died by police assault and beating, the compensation of Rs. 75000 was granted and the Delhi Administration was allowed to recover the same from the officials which were responsible for the incident.
9. Common Cause, A registered society v Union of India– In this judgement, the court ruled that when there is a violation of fundamental rights of the person, the remedy for him is available under public law despite the fact that there is an optional remedy in private law also. The distinction between damages and remedies given in private and public law were evaluated and this judgement opened the way for the development and growth of public law torts increasing State’s liability.

Growth of remedy under Constitutional Tort

The principle established in Rudal Shah established and crystallized the concept of constitutional torts. The court did not follow a rapid formulation of law but instead stick to the case by the case evolution as per the need. In Sebastian Hongray v Union of India, when two persons whisked away by the Sikh regiment were found missing, a writ petition of habeas corpus was filed by a JNU student under Article 22. The court issued a command to the respondents i.e. UOI, State of Manipur and Commandant, Sikh Regiment. In the events followed in the course of the inquiry, the Court discovered that the respondents misled the inquiry and committed wilful disobedience. In the subsequent judgement, the Court awarded the exemplary damage of 1 lakh each to the wives of both the individuals who had disappeared after they were taken into custody, ignoring the common consequences of imprisonment and fine in such circumstances.

The doctrine of constitutional tort has grown in many steps. Some of the established principles are as follows:

1. Doctrine to Entertain Appropriate Cases

The court in Bhim Singh v State of J & K states that the court will entertain only appropriate cases but it did not elaborate more on the qualification criteria for a case to be called as an appropriate case. The case was related to the illegal detention of an MLA so that he cannot attend the proceedings of the house. His wife filed a writ of habeas corpus under Article 32 of the constitution.

• The decision of detention was held violative of Article 21 along with Article 22 (1). Although at the time of judgement the MLA was free, still the court chose to grant exemplary damage by monetarily compensating. The court observed, “when a person comes to us for the remedy for violation of his constitutional and legal rights, and the court finds it as an appropriate case, it may award exemplary damages”.And, the court awarded Rs. 50000 to Bhim Singh.

The trinity of cases i.e. Rudal Shah, Sebastian Hongray and Bhim Singh ensured state’s liability for compensating a person who is illegally detained by it thus, violating his right to life and personal liberty.

• In MC Mehta, there was a reiteration of appropriate cases doctrine but in more elaborative manner, the court stated that “an appropriate case may be considered as a case when there is a gross and potent infringement of a person’s right in a manner whose magnitude may shock the court”. In addition, it was stated, “the decision of qualification of a case as appropriate or not is inclusive and not conclusive and the court is free to decide on the question based on the facts and circumstances of each case separately based on its merit”.
• The role of High Courts in awarding compensation was recognised by the Apex Court in the case of State of Maharashtra v Ravi Kant S Patil where a person was paraded on the street with handcuffs without any justification, the Court awarded compensation of Rs. 10000 by the police officer himself and directed the government to make an entry into the policemen’s service record that he violated a person’s right without any valid justification. However, in appeal, the Apex Court upheld the judgement but ordered the government to compensate instead of compensation from the officer himself and also directed to avoid making an entry in the official records. This was a contrary step from the law in Saheli v Commissioner of Police when the recovery was allowed by the officer himself. However, in this case, HC’s role under Article 226 for providing compensation was recognised and helped the High Courts to enjoy the authority vested in them for providing damages in future.

2. Constitutional Tort and the end to Sovereign Immunity

Although, with the cases like Bhim Singh and Rudal Shah the law of constitutional tort was evolving, the Courts did not take recourse to the law in Kasturi Lal. The decision in Kasturi Lal was neither reiterated nor overruled.

The claim of damages in every case of infringement of fundamental rights was obvious in every judgement, but there was no refinement of the doctrine of fixing the liability or dealing with the provision of remedy. There was a demand by legal scholars that unless the law in Kasturi Lal is discussed, the arrangement of providing compensation in breach of fundamental right will only be understood as a provision on an ad-hoc basis.

• The Hon’ble SC in the case of Nilabati Behera v State of Orissa clarified the law after passage of one decade of judgement in Rudal Shah. Nilabati Behera was a case which came before SC through PIL and was related to the custodial death of a 22-year-old boy whose body was discovered lying on the railway track on the day after he was sent for police custody. The court directed the State to pay Rs. 1.5 lakhs to the mother of the victim. In addition, there were many observations made by the court. Some of those are as follows:

1. The Court clarified the observations in Rudal Shah that “a remedy under Article 32 or 226 may be denied if the claim presented before the court is controversial in facts and that monetary claims are allowed under Article 32 and 226”. The Court stated, “the remedy under both the articles is precise and available in all the cases distinctively, in addition to an alternate remedy, if there is a violation of fundamental right”.
2. The liability under private law and liability of state under violation of fundamental rights by the State was distinguished and the Court observed “even though the defence of sovereign immunity and exceptions to strict liability may apply in cases dealing under private law, they are not applicable when the case is relating to infringement of rights by the State under public law. The award of compensation is a recognised remedy under Article 32 and 226 and the Court must remember the distinction while entertaining both types of cases”.
3. The provision of compensation from the State in the event of an infringement of fundamental rights is an inherent remedy under the constitution. The question of sovereign immunity is not even a question to ask by the State to prevent itself from providing damages to the victim and is alien to the idea of guaranteeing fundamental rights to every citizen of the country.

In addition, it is the only practical mode available for remedying the victim and thus it provides a justification for exemplary damages in monetary form. The court further stated, “the enforcement of fundamental rights by taking recourse to the provision under Article 32 and 226 is the law in Rudal Shah and thus, it provides a basis for subsequent decisions”.

• Even though in the majority of cases which deal with constitution tort, the remedy has been provided for infringement of article 20 and 21, there are some exceptions too. In the cases of Assam Sillimite Ltd. v. India and Gajanan Vishweshwar Birjur v. India, there was a violation of other fundamental rights.
• In Assam Sillimite case, the compensation was provided for infringement of article 19(1)(g). The dispute was over the cancellation of the lease without giving any chance of hearing. The act was also not in line with the principle of natural justice.

In Gajanan Vishweshwar case, the honourable Supreme Court quashed the order of seizure of some books, when the concerned authority was not able to provide a satisfactory answer on grounds of confiscation under section 111 of the Customs Act. Rs. 10000 was awarded as compensation as the act of administration was held to be resulting in violation of petitioner’s right under article 19 (1)(a) of the Indian Constitution.

3. Compensation for Constitutional Tort under SLPs (Article 136 of the Indian Constitution)

Supreme court faced heavy criticism for awarding damages under article 32 but not under article 136. It was argued that a plea for compensation under article 136, if not higher in merit, is at equal footing with that of article 32.

However, this was not always a case. In State of Haryana v Smt. Santra, when the sterilization failed and the woman gave birth to a baby, the suit for compensation was allowed as an SLP and the Supreme Court rejected the defence of sovereign immunity.

The Court held ” the contention regarding vicarious liability of the doctor of the government hospital cannot be accepted as a case of negligence on the part of the doctor only. As the operation was done in a government hospital, the theory of sovereign immunity is not applicable”.

The court also referred to the cases of N. Nagendra Rao v Union of India, Common Cause, and Achutrao Khodwa which was related to sterilization operation.

4. Defence of Sovereign immunity in Civil Law Proceedings

The apex Court differentiated the remedy under public law, civil law and private law in the landmark judgement of Nilabeti Behera. It was concluded that although the defence of sovereign immunity applies to cases of private law such as tort, it does not apply to compensation resulting under Articles 32 and 226.

The case of C. Ramakonda Reddy v State of AP may be considered as a landmark judgement in this regard. The High Court of Andhra Pradesh pronounced a highly prognostic verdict in this case which was later affirmed by the Supreme Court. In this case, due to the negligence of the prison authority, one of the accused died due to the entry of an outsider into the jail premises which planted a bomb in order to kill the deceased, one of the accused person.

The incident took place due to misfeasance and malfeasance of the defendants i.e. the State. The damage to the plaintiff was calculated to be Rs. 10 lakhs. Subsequently, the State denied its liability and contended that it is not to be sued for its sovereign functions which were, in this case, the maintenance of the jail. The judgement was declared in State’s favour.

In the appeal, the HC observed, “the right to life cannot be defeated by the archaic defence of sovereign functions and when the person is denied his right to life and liberty, it is not a valid argument that the deprivation was due to the state carrying out its sovereign functions.”

Observing the facts, the Court awarded the compensation of Rs. 1.44 lakh and stated that it is the only way to enforce Article 21 in such cases. On the later stage, the judgement of the High Court was affirmed by the Apex Court and the appeal was dismissed.

5. Supreme Court’s approach on Constitutional Tort Issues

The Apex Court always took recourse to the extent of enforcement of fundamental rights in order to answer on the remedy for the constitutional tort. The analysis was divided on the substantive basis of the compensation if there is a gross violation of the fundamental rights. As Chief Justice of the United States John Marshall remarked ” the Government of  the United States has been always witnessed as the government of laws and not of man”, in India also the same was the case when the government’s using constitutional provisions and by applying the defence of sovereign immunity kept on violating the fundamental rights.

The court in Rudal Shah opined ” the plaintiff has the right to compensation if there is a violation of their fundamental rights along with penalizing the authorities which acting in the name of public interest, use their powers as a shield to prevent themselves from scrutiny.

At a later stage, after awarding compensation in Devki Nandan case for deliberate and motivated harassment of the plaintiff, the court established the doctrine of appropriate cases in Sebastian Hungry and Bhim Singh. Subsequently, in MC Mehta, the complete doctrine of Constitutional Tort was established along with the introduction of deep pocket theory.

However, due to the sole focus of law formation on public law and judicial pronouncements, it is hard to find a jurisprudence of further developments. Thus, there was an attempt to incorporate a separate clause under Article 13 as 13A coming just before the fundamental rights dealing with the right to compensation for violation of fundamental rights. It was suggested that this will help in increasing the liability and act in consonance with Article 32.

Ultimately, the award of damages by the hands of the judiciary is indeed a creative concept introduced in India but fails at certain stages due to the absence of well-defined criteria.

Conclusion

While concluding, it may be stated that the doctrine of Constitutional Tort is a creative jurisprudence evolved by the Courts in spite of the fact that the criteria employed had faced various criticism in the past. The Apex Court must evolve a scientific criterion for future cases. The “voting right model” of the United States may be adopted for measuring the damages in Constitutional Tort actions to prevent the victim from a legal injury to their rights.

[1] https://www.law.virginia.edu/news/2012_fall/jeffries_qa.htm

[2] https://www.legalcrystal.com/act/133617/government-of-india-act-1858-complete-act

[3] https://indiankanoon.org/doc/1415462/

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This article is written by Anshika Gubrele, second-year BA LLB student at Bharati Vidyapeeth New Law College, Pune. In this article, she discusses why Bride Burning takes place in India highlighting its causes and remedies. The author also lays emphasis on the dowry system that is still prevalent in Indian society and is the main cause of bride burning. Further, she discusses the causes of the dowry system, laws related to the prohibition of the dowry system and the remedies that can help in the eradication of such heinous crimes from the country.

Introduction

Indian society has been stigmatized by many social and legal problems. One of such problems is the dowry system that still prevails in the society. Though such practice is condemned by law still it is a custom that is performed in various parts of India. The biggest problem that arose because of such practice being followed in society is the problem of bride burning – a heinous crime that is being committed in India by many families when they fail to get the demanded dowry by the bride’s family. The cases of bride burning have increased steadily in Indian society. Despite many judicial efforts to eradicate the evil practice of dowry taking, the cases of bride burning are still at an alarming rate.

Dowry system – The main cause of Bride Burning

The concept of dowry has been misconstrued in today’s time and is not the same as originated in Ancient India. Earlier dowry was given by the bride’s family voluntarily as a token of gratitude towards the groom and his family symbolising the purity of the ritual.

But now it has become an exploitative practice of extorting a certain amount of cash price or jewellery or any electronic equipment by the bride’s family to the groom’s family. Further, it can be understood as an unnecessarily performed evil practice against the bride in which she is treated as inferior to the groom and in order to satisfy all the conditions and demands of the groom, the bride’s family provides him and his family all the things they have asked for. They are provided with lavish gifts and other expensive items. All their demands should be at the top priority for the bride’s family no matter whether they are able to afford them or not. This is clearly an injustice towards the females because there is no logic in the concept of treating her as an inferior just because she is a girl. But the injustice done to her does not end here. If the in-laws or the husband is dissatisfied with the cash or other things or in the case failed to get the things they expected to get, then in such conditions, the bride is victimised to inhuman treatment and domestic violence. Not only this she is inhumanly burnt alive just after a few days of marriage by her in-laws who do this just out of greed so they can forcefully get money from her family. But the question here is – Is this justified? We all might agree on the same answer – No, it’s not. Then why such crimes are emerging in our society and the biggest question is why such systems are being accepted?

Why the dowry system still prevails in India?

The dowry system is still prevalent in India because of many reasons. Some of the causes that give rise to such evils and still provoke them to take place can be –

• The social structure – Indian society is structured in such a way that men are always placed above women. Rather men are considered to be superior in every aspect. They are often considered as a second-grade citizen who can only contribute to household work. Thus such a system often gives rise to atrocities against women which is also evident in the form of dowry system that is still being practised.

• Customs and Traditions – Indian society is marked with various customs and traditions. Dowry in the past years has become a tradition been followed by everyone no matter what is the financial condition of the family.

• Illiteracy – Illiteracy is one of the biggest factors responsible for the emergence of such a system in society. Lakhs of women are not sent to schools because of reasons such as poverty and superstitions that education will make them independent and will take away from them their qualities to become a “good wife.”

• Social status of women – Women are never considered as standing on par with men in many parts of India, today also despite their achievements and progress which is leading them even ahead of men. Where women are treated unlike and not the same way as men, such systems often emerge due to huge differences.

Bride Burning – a heinous crime

Bride burning also referred to as Dowry death is the most heinous crime that is still being committed in India. When the bride’s family fails to provide adequate dowry asked by the groom and his family or are dissatisfied by the dowry given to them, then is such situations, the bride is ill-treated and shockingly she is even burnt alive. India is witnessing a high number of such cases where a newly married woman is brutally killed in such a way.

Statistics of bride burning in India

According to recent reports, nearly 8000 women die every year from bride burning. In the year 2010 – 8391 dowry death cases were reported across India,  which means a bride was burnt every 90 minutes, according to statistics recently released by the National Crime Records Bureau. More than a decade earlier this number was 6995, but increased to 8093 dowry deaths in 2007 and kept on increasing till 2010 with total 8,391 bride burning cases.

Source – brideburning.wordpress.com/statistics/

Laws dealing with Bride burning cases

With a perspective to eradicate or reduce dowry death cases, the Indian Government passed legislation regarding the same. The increasing number of cases was the main cause to frame laws in such a way that would prohibit dowry demands leading to a reduction in the bride burning cases.

• Dowry Prohibition Act,1961

The Dowry Prohibition Act, 1961 was an initiative taken by the government in order to prohibit the dowry demands across the country. According to the act, any person offering or accepting dowry will be penalised with imprisonment up to five years and with fine up to Rs.15000 or sum equal to the demanded dowry. The act was further subjected to amendments in 1984 and 1986 respectively in order to remove the ambiguities in relation to certain terms used in the act and make the provisions stricter and effective.

• Indian Penal Code,1860

Section 304B – Dowry Death

Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have caused her death. Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.

Section 498A –  Husband or relative of husband of the woman subjecting her to cruelty

Whoever being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also liable to fine. The cruelty can be either mental or physical torture which drives the women to commit suicide or to cause serious injury, danger to life or health.

• Criminal Procedure Code(CrPC)

Section 176(1) provides inquest by the executive magistrate and section 174(3) (Cr. P. C.) provides as follows:

When (1) The case involves suicide by a woman within seven years of her marriage (ii) The case relates to the death of a woman within seven years of her marriage in any circumstances raising a reasonable suspicion that some other person committed an offence in relation to such woman, or (iii) The case relates to the death of a woman within seven years of her marriage and any relative of the woman has made a request in this behalf, the police officer will forward the body for autopsy to the nearest medical officer.

• Indian Evidence Act(IEA)

 Section 113 A, Indian Evidence Act (IEA). Presumption as to abetment of suicide by a married woman:

When the question is whether the commission of suicide by woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and her husband or such relative of her husband had subjected to cruelty , the court may resume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.

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Remedies

• Stringent laws and speedy trials – Several laws have been enacted in order to eradicate the rigid practice of dowry system in India. The laws prescribe strict punishments and penalties such as the Dowry Prohibition Act which penalises a person taking dowry with imprisonment as well as fine. Speedy trials will also help in providing quick justice to the victims and punishing the culprits without any delay.

• Enforcement of laws – It is not sufficient just to enact laws to eliminate such an evil system from society. Proper enforcement of the laws is also necessary at the same time. Authorities must ensure that there are proper investigation procedures taking place so that no offender is left free from being punished. After so many legislations were enacted still we can see that there are demands of dowry and death cases because of it. Thus the government needs to strengthen the policy implementation system to see a rapid change in the society.

• Social Awareness and Education – Making people socially aware and giving them education regarding the do’s and don’ts will help in tackling such situations easily. Campaigns must be started by the government to spread awareness as such an initiative will help in reducing the number of cases taking place every year. The girl child must be empowered through education. She must know to take a step for herself instead of suffering silently and become a victim of such heinous crimes.

• Change of mindset – There is a strong need for changing the mindset of people in a country like India where people believe that a woman is inferior to a man, where they believe that a girl is a burden on her family and after marriage, she needs to comply with everything said by her in-laws. She, being a woman does not have any rights of her own or her personal views regarding something just because she is born as a girl! Thus people with such opinions still exist in society. Thus there is a strong need for reforming such an orthodox society still prevalent in India.

Conclusion

Indian society has been loopholes which give rise to inhuman behaviour against others. The rigidity in the social structure often leads to many differences among people. Gender inequality is one of the causes or can be understood as a loophole which directly confers men with social powers and persuades others to treat women unlike and inferior to men. This results in cruel and evil practices such as dowry system and bride burning coming into the light.

Due to the significant increase in bride burning cases, the Government made efforts to combat and eradicate such systems prevalent in society. Several laws have been enacted in order to punish the offenders and provide justice to innocent victims who are generally newly married women. Despite laws being framed and enacted accordingly, there are still such cases knocking the doors of courts. Thus there is a need for an efficient mechanism which ensures that such atrocities and violence against women are curbed from society so that they can lead a better life even after marriage.

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This article is written by Puru Rohatgi, Student, School of Law, Christ University, Bangalore.

Introduction

The United Nations was formed by numerous diplomats in 1945. When they met to form the UN, setting up of a global health organization was one of the main things that they discussed. World Health Organization’s (WHO) constitution was formed soon and it came into effect on 7th April 1948. The IHR (International Health Regulations) 2005, is an agreement between all the countries to work collectively for global health security. It consists of rights and obligations for these countries in agreement regarding surveillance, assessment, public health response, health measures and many more subjects. A proper legal framework to support all the IHR policies is required in every country.

Health economics explains the relationship between health and the resources that are needed to promote it. These resources are both monetary and non-monetary in nature. The issue that arises in this context is that how does the law regulate the optimum utilization of these finite resources for the infinite needs of humans?

Health economics in Development conveys two meanings: that the science of health economics itself has been developing during the period covered, and continues to do so; and that the application of health economics contributes to development, broadly defined, both by improving health and by reducing the waste of resources devoted to health care. As to the first, health economics is a relatively young sub-discipline, roughly 40 years old and expanding rapidly. In 1982, the Pan American Health Organization (PAHO) sought to hire an economist with 10 years’ experience in health issues in Latin America. That was a novel departure for PAHO, and it was resisted by a number of staff members trained in public health and deeply suspicious of economists and their ways of thinking. Moreover, there was probably no one alive who could meet the job requirements then. By the end of the century, the situation was quite different: PAHO not only employed several economists but promoted and published studies of the relations between health and development. This change of attitude reflects the growing realization that economic thinking is not inimical to the ethical concerns of health professionals, and that the expansion of health economics as a field of inquiry has made it steadily more relevant and more useful to health organizations. As to the second, there is increasing evidence that improvements in health, far from being a pure consumption good or even a luxury, often represent valuable investments in people’s capacities to learn and to work, and are sometimes essential to rescue people from poverty or prevent their impoverishment.

Why healthcare professionals need to know about health economics?

When a physician is actually practicing medicine there seems to be no room or need for economic understanding. In fact, it might get in the way, when what the doctor wants is to concentrate on the patient before him or her and bring to bear all his or her medical knowledge, which is typically much more detailed – and certainly more important at the moment of diagnosis or treatment – than what an economist typically knows or thinks about. And doctors have been treating patients, well or badly, for centuries without troubling themselves with economic concerns.

Economics perhaps has no place in the surgery, the consulting room or the laboratory, but that is not what matters. In each of those settings, resources are being used and a production process is underway, supposedly for the benefit of a consumer – and the use of limited resources to produce goods and services for intermediate or ultimate consumers is what economics is primarily about. How those resources are themselves produced, how they are combined, who choose what to produce with them, who will pay for them, and what all that costs, create the setting in which the physician operates. Almost everything that happens prior to the encounter between the health care professional and the patient is relevant to the economist, even if the latter is kept outside of the medical practice itself. Is there is something the health care professional ought to know of health economics, it concerns those prior steps, including many of the factors that bring the patient to his or her attention in the first place.

There are at least three reasons why a health care professional might disregard this argument and suppose that economics has nothing useful to offer his or her profession. One is the fact that health economics is a relatively new sub-discipline. Today health economics has become steadily more important as more and more of health care is financed by insurance and the costs of it have risen. Economists are quick to “invade” fields they find interesting, and the practitioners of those subjects may take time to notice that they have become of economic interest.

A second reason is a mistaken supposition that economics is nothing more than accounting, and while accounts must be kept in medical practice as in other professions, the logic of the accounting is no different and the accountant has no special insights to offer. Much of economics does, in fact, depend on proper accounting: the creation of national accounts of income and product, starting more than a half-century ago, is the precursor of today’s effort to create national health accounts to show where the funds spent on health come from and where they go. But the interpretation of those flows doesn’t follow only from their magnitude, but from economic theory about how doctors, patients, and financial agencies behave.

A third, even more mistaken reason, is summarized in the attitude that “health is not a business”, or should not be one. Some doctors, and public health professionals in particular, often find it hard to accept that health care is financed, produced and delivered in a constellation of markets – as though markets or “business” were intrinsically inimical to human health. This argument usually rests on the claim that health care is a basic right or a basic need, and therefore too important to be left to markets. But food, which is a much more basic necessity than health care, is produced and delivered in markets, and there is nothing wrong with that. The question in the case of health care, is whether those markets work in socially desirable ways or whether they lead to situations in which some people cannot afford needed care, or the wrong kinds of care is produced, or at too high cost, or something else goes wrong. Economics is, to a large extent, the science of how markets operate, so it is extremely relevant to markets in which failure may be a matter of life and death.

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Why public role in healthcare matters?

Health care in about 1990 cost at least 1.7 trillion dollars, or about 8% of world income, making it one of the largest industries in the global economy. On average, 60% of this is public spending. If this spending is excessive or otherwise inappropriate, the consequences for the economy and for health outcomes could be substantial. Governments also provide a large share of health services, sometimes as large as the share in spending, and often intervene in various ways in the private health care market. Since most health care is a private good, it is surprising that so much of it is provided, financed or regulated by the state. In contrast to what happens in many other sectors of the economy, this substantial public role is most pronounced in high-income countries which are generally very market-oriented; the state usually finances a smaller share of health care in poorer countries. Besides consuming large resources, many health systems are regarded as inefficient or inequitable or both; they are often described as in “crisis” as needing reform, or as having failed. If the supposed failures of health systems are real, they might be caused by misguided public intervention so they could be corrected by a smaller or different public role and a greater reliance on private markets. Or governments might intervene for sound reasons, to correct or compensate for failings in those markets; that is outcomes would be even worse if left entirely to the private sector. It is relatively simpler to conclude that governments should do certain things and should leave others to private activity, but often there is a variety of possible solutions and no obviously best approach. Theory doesn’t always provide clear answers, and the empirical evidence is incomplete, extremely varied and difficult to interpret.

Economic analysis of World Health Organization’s policies

The policies laid down by the WHO represent a serious impending issue that must be addressed in the present in order to avoid irreversible and adverse economic consequences. The economic aspects associated with World Health Organization and its policies are:

1. Information Asymmetry in the Public Sector. Asymmetric information is a situation in which a buyer and a seller possess different information about a transaction or exchange. There are three major ways in which information asymmetry can occur – between doctor (health care professional) and health care system (administrator); between patient and health care system; and between patient (public) and doctor. In the first case, doctors have a better understanding of legitimate demands, while administrators have an understanding about supply and cost of available resources but know little about a chosen intervention’s effectiveness. In the second case, patients try to avoid the high costs of paying health care premium. Similarly, there is often a lack of information and understanding of available public programs. In economic terms, the benefit of gathering useful information about such programs is generally undervalued compared with its cost. Lastly, patients know more about their health and the symptoms than the doctor, but they may not express it properly – be it reluctantly or intentionally. On the other hand, doctors know more about the cases and effects of available treatments but may not be able to communicate them properly to the patient. Such issues are normally worse in the public sector, where patients are generally poor and uneducated. Not just in health care centers set up by WHO, even in terms of the implementation of the new policies and frameworks of WHO, there exists information gap. This is quite evident as the WHO are more aware of their policies than the public at large.
2. Associated Higher Transaction Costs. Such information asymmetries add to agency costs in terms of monitoring, structuring and bonding contracts among agents and principals with rebelling interests. There are two aspects to this. Private firms’ motive is to increase their profits, so their expenditure on agency costs is limited. But on the other hand, public agencies do not receive clear signals about the agency cost of such information asymmetry because of unspecified social functions and complex sources of subsidies. Unsurprisingly, many public health care facilities do not maintain clear and detailed patient records. Doctors maintain an information advantage that puts them on a higher pedestal to pursue their own interests. As a whole, in such area of information asymmetry, the expenses of WHO increase on both useful and unnecessary things. This explains the concept of transaction cost in the implementation of policies by the organization too.
3. Abuses of Public Monopoly Power. In addition to the above accountability and information problems, when the public health care centres (set up by the WHO in around 150 countries with more than 7000 employees) enjoys a monopoly, people who work for it are given a wide scope of abusing this power – extraction of rents and lowering of quality. Often monopoly suppliers reduce output and quality while raising prices. This leads to inefficiency or a net deadweight welfare loss to consumers who have sacrifice the intake of other goods. Also, monopoly suppliers have strong incentives to lower expenditure through decreased output. The executives at these public centres often receive huge social benefits and other perks. All these monopoly issues lead to a failure of critical policy formulation.
4. Failure of Critical Policy Formulation. The market often does not lead to welfare-enhancing production and allocation of a number of health care goods and services. These include public goods (policymaking and information), goods with large externalities (disease prevention) and goods with stubborn market failure (insurance). While the WHO is busy producing healing services, the above three areas are frequently neglected. Also, when most funds are spent on poor public productions, lesser or no resources are left for strategic purchasing of services for the poor.
5. Cost and benefit analysis. It is the aim of every organization to increase their profits while reducing costs. Awareness of the cost effects of health results and understanding of cost behaviour is serious at all levels of health care. ‘Cost’ is the value of resources used to produce something. Financial cost is the measure of loss in the monetary form when something is consumed. It represents how much money was paid for the provision of service, in our case by the WHO. Economic cost, on the other hand, expresses the full cost accepted by society and are grounded on the opportunity cost. Economic costs must include the prices of all the goods and services that are provided for free by donors or volunteers and also those that are subsidized. While examining the cost-benefit analysis for WHO, the cost of implementing the policies should be equal to the benefit derived from the customers.

Conclusion

Health policy responds to many factors, some of them political and some quite ideological, in addition to the economic circumstances that constitute a crisis or the adjustment to one. That alone makes it difficult for health policy to change quickly and sensibly if a crisis arises.

The World Health Organization aims for a disease-free economy all over the world. Amongst the 150 countries, where it has set its health care centres, most of them are developing economies. Here, it is analyzed how information asymmetry and other economic aspects are directly or indirectly connected with the legal policy frameworks of WHO with respect to the legally binding instrument of international law, the International Health Regulations of 2005. The IHR doesn’t just assist the countries to work collectively in the interest of the livelihoods of disease-prone people, it also avoids the needless interference with international trade and travel.

IHR essentially plays a dominant role in providing a legal framework to the World Health Organization’s policies, as to whether they are being efficiently implemented or not. From this analysis, we can infer the significance of economics in the contemporary world.

References

1. Principles of Health Economics For Developing Countries by Willian Jack
2. Stephanie Wels’ article on “What Is Health Economics?” (https://www.jhsph.edu/departments/international-health/global-health-masters-degrees/master-of-health-science-in-health-economics/what-is-health-economics.html) 
3. International Health Regulations (IHR) (Legal) (http://www.who.int/ihr/elibrary/legal/en/) 

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This Article is written by Anshika Gubrele, a second-year BA LLB student at Bharati Vidyapeeth New Law College, Pune. In this article, she discusses the position of women in Indian society post Independence. The author also highlighted the constitutional provisions of India safeguarding women’s rights and interests and also the other measures adopted by the government to ensure women’s right to equality and providing them with equal opportunities in order to enhance their status in the society.

Introduction

If we trace the pages of history nowhere men and women were treated alike and assigned the same status. Women have been always fighting for their rights and position in society.

They have several times urged for equality so that they can lead a life exactly on par with men. If talking about the women’s status in Independent India, then it has been surely improved. The structural and cultural changes in India have brought into many opportunities for women in the fields of education, employment and politics.

Such changes ultimately lead to a reduction in the exploitation of women as they have been granted equal status as men. The improvement in the status of women can be analysed in the light of major changes that have been taken place since Independence in the areas of legislation, economic sectors, social and cultural life and so on.

Constitution and legislation for women’s upliftment

Constitution of India guarantees equal status to all citizens of India including women under article 14  and does not distinguish or discriminate between a man or a woman. Moreover, article 15 empowers the government to make special provisions for women. Women are free to participate in all the religious, cultural, economic and political activities.

Furthermore, they have been entitled to vote and are provided with other special benefits. The constitution protects women against exploitation and ensures that they are been given equal rights and opportunities being it any field.

Legislations safeguarding women’s interests

• The Hindu Marriage Act 1955 – The act provides women with equal rights to divorce and remarry. Also, the act prohibits polygamy, polyandry and child marriage.
• The Hindu Succession Act, 1956 – The act provides women with the right and claim over parents property.

• The Hindu Adoption and Maintenance Act, 1956 – It provides a childless woman with the right to adopt a child and a divorced woman with the right to claim maintenance from her husband.
• Special Marriage Act, 1954 – It provides women with the rights to intercaste marriage, love marriage and is only permitted for the girls above 18 years.
• Dowry Prohibition Act, 1961 – It protects women from exploitation by declaring taking of dowry an unlawful activity.

Women in the field of Education

After Independence, the educational rights of women were promoted and they were made aware of the value of education. The ratio of women pursuing higher studies and taking education improved gradually since then. The government provided several benefits to women such as scholarship, loan facilities, hostel facilities etc. who wished to go out to pursue higher education. By getting such benefits a large number of women are able to pursue higher education today.

Separate schools and colleges have been established for women alone. Separate universities have been also established which are among the prestigious universities today and admits the girls obtaining merit ranks. There are many engineering and medical universities in India specially for girls which provides them with a great quality of education and help in enhancing their careers.

Women in the Economic and Employment fields

The number of working women has also steadily increased. Women have been recruited in all posts such as teachers, doctors, nurses, advocates, police officers, bank employees in all major cities of India. Since 1991 women have been recruited into 3 wings of armed forces that are military, air force and naval force.

Awareness of Women regarding their rights

Women in Independent India have maximum rights but many of them are not conscious about their rights. Uneducated women have a lack of awareness of their rights. According to a study conducted by Prof. Ram Ahuja, it can be concluded that the level of awareness of rights depends upon these 4 aspects –

• Individual background of women
• The social environment of women
• The economic base of women
• Subjective perception of women

It can be also concluded that the majority of women are happy in their family life and leave important decisions to their menfolk discretion. They are not completely free from the hold of the traditional customs practised in society. Still many are being exploited, they are completely dependent on their spouses. Hence bringing about more and more legislation in order to ensure better opportunities to women is of no use unless there will be a big change in the Indian society and people’s attitude towards women and women’s role in society.

Strategies for Women development

The national document which was prepared by the Government of India with an objective of enhancing and widening opportunities for women highlights the importance of 3 strategies –

• Obtaining greater political participation of women – The document mentions that 33% of seats must be reserved for women in order to obtain effective participation in the field of politics.

• Income generating schemes for women – A per the document, income generating schemes must be introduced. Some of the schemes are – IRDP, Jawahar Rozgar Yojana and TRYSEM.

• Increasing Female literacy level – The government believed that proper coordination between governmental and non-governmental organisations will help in improving the literacy rate of women which will further help in making them self-reliable.

Empowerment of women and the 73rd Constitution Amendment Act, 1993

The 73rd Constitutional Amendment Act, 1993 was undertaken especially to give constitutional status to Panchayati Raj system and introduce it on a uniform basis. But apart from this it also plays a specific role in women empowerment. The framers of the 73rd constitutional amendment believed that the social and economic conditions of women could not be improved without granting them political power. The new Panchayati Raj was an effort to empower women at least at the village level.

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One-third reservation of seats for women

The 73rd amendment has made an effort to provide women with some special powers in all the 3 tiers of Panchayati Raj. As per the act, ⅓ of seats are reserved for women in addition to the seats reserved for SCs and STs. It was indeed a bold step. The rural women will also be now able to exercise some political power and play a role in decision making for village affairs.

A brief assessment of the 73rd Constitution Amendment Act

The act has not brought about miraculous changes as expected. Though it has brought awareness on the part of women but to an extent only. Following drawbacks have been found after analysing the impact of the Act’s implementation –

• Illiteracy – Due to illiteracy in rural areas women are unable to assert themselves at different tiers of Panchayati Raj. On the contrary, they are forced to work according to the wishes of male members.

• Corrupt bureaucracy – As our bureaucracy is highly corrupt, it becomes very difficult for women to progress and achieve something in such circumstances.

• Non-availability of women – It is very difficult to find out an adequate number of women who are qualified and are aware of the rights as most of the women are illiterate and ignorant about their rights in the rural areas.

Factors facilitating the empowerment of women

According to Doshi and Jain, women are empowered by women emancipation, education, communication, media, political parties and general awakening. Some social, economic and political factors facilitate the empowerment of women are listed below –

• • Acknowledging women’s rights – Society should recognise that women are equally entitled to the rights and opportunities as men.
  • Freedom to take decisions and make choices – Women must have the freedom to take important decisions of life such as when to marry, the number of children they should have and so on.
  • Access to education and employment – Women can become stronger only with educational and economic power, mere expectations cannot help. Conditions must be created in such a way that women can easily get access to education and later on get employed. It will ultimately make women independent and self-reliable.

• Opportunities for political participation – Women must be granted political power and must be free to take part in the administrative process.

Reasons behind the need for empowerment

In a developing country like India where women are treated as a second-grade citizen and inferior to men, women empowerment is justified. Following are the main causes on account of which government decided to take such an initiative for women –

• Education or literacy – Among the other counties in the world, India is counted as one of the countries having a maximum number of illiterate people. Women are more illiterate as compared to men. Earlier they were denied going to schools and have education but now conditions are much more stable. Still, illiteracy is the biggest weakness of women. Providing them with educational facilities means empowering them so that they can enjoy their rights and contribute to the progress of the nation.

• Health problem of women – Poor health conditions of women is also a hindrance in their progress. The main reason for such health conditions is the traditional importance given to a male child neglecting the presence of a female child which leads to less care given to her. Another reason is that women are always taught to be shy and submissive. This often makes women tolerating thus, they prefer to avoid complaining about something and rather suffer silently.

• Economic Exigencies of women – Indian women are economically weak since education was not given to them for years and property laws were also not in favour of them. They were dependent on men financially as all economic power used to be in the hands of men. Thus women require economic power to stand on their own legs on par with men.

• Atrocities against women – Women on all walks of life have been discriminated against men. They become victims of atrocities in a number of ways as there are cases of sexual harassment, molestation, kidnapping, dowry harassment and so on

Thus women require empowerment of all kinds in order to protect themselves from all such atrocities and to preserve their purity and dignity.

Rights and protection to women given under the Constitution of India

The Indian Constitution attempts to provide equal opportunities to women, protect their rights and ensure justice to them through the following provisions –

• • Right to Equality– Constitution ensures equality to all its citizens including women (Article 14).
  • The Constitution ensures that no discrimination shall be made against any person on the basis of caste, class, creed, sex, race and place of birth [ Article 15(1)].     
  • No discrimination shall be made on any grounds of discrimination including sex for providing employment opportunities. [Article 16].
  • The State shall take the responsibility of providing maternity benefits to women employees [Article 42].
  • Providing harmony and fraternity to people doing away with all customs in respect of women.
  • One-third reservation of women in the panchayats – There must be separate seats reserved for women in the panchayats with separate seats for women SCs and STs [Article 243 D (3)]
  • One-third reservation for women in the presidential posts of the Panchayats – Reserving women seats for all posts at all the levels of panchayats (Gram Panchayat, Thaluk Panchayat and Zilla Panchayat) [Article 243 D(4)]
  • One-third reservation in Municipalities – Separate seats for women in all the town municipalities.[Article 243(T) 3].

• One-third reservation for women in the presidential posts of Town Municipalities

Conclusion

It can be concluded from the above discussion that women’s status in Indian society has radically changed since Independence. Government after realising the situations of women and their worse position in the society took huge initiatives to bring about a change and improve the social, economic and political conditions of women. It cannot be said that the measures taken have been completely implemented in the society as still customs and traditions are given much more importance in a country like India, still, a gradual change has been experienced by the women over these years and they have become much more independent and aware in today’s time.

The post The Position of Women in Indian Society After Independence appeared first on iPleaders.

This article is written by Anushka Ojha, a student at ICFAI University, Dehradun, gives an overview of the history and present scenario of the labour law. The article deals with the need for the labour law, factors of the labour law, trade union, labour law and constitution, Acts under labour law, different plan and policy, government schemes and related practice area.

Introduction

Labour law is the area which commonly deals with the relationship between trade union and industries. Labour law is concerned with the rights and responsibility of labours, and also this law gives them the right to form a union.

Why is trade union necessary? Some group of employees find a union beneficial since employees have more power when they negotiate in a group rather than individually, a union can negotiate for better pay, increase workplace safety, more convenient hours. However, the unions have not limitless powers because labour law has set the standards of working condition and wage policy.

Labour law is generally used in the reference of employment that deals with the trade union, labour law is used for workplaces where the legal relationship is directly between the employer and employee.

History

This law arose during the industrial revolution as when the relationship between two categories i.e. employer and employee and employer and workmen, was changing from small scale production to large scale production, as workers were in search for better working condition and had the freedom to join a labour union.

The United Kingdom took the initiative of this tradition for freedom of employers and workers and to improve their mutual relationship and regulations.

Over the late 18th century and the mid of the 19th century, the foundation for modern labour law was slow as some of the more terrible aspects of working conditions were steadily improved through legislation. This labour was highly achieved through the regular pressure from social reformers. 

Present day scenario

Nowadays, the flexible labour market policies gained legitimacy in the climate of economic liberalism to promote the efficiency and productivity of any labour and protect from harassment.

At present, the labour ministry is in the process of seeking the approval of union cabinet for the amended wage code bill after it’s vetting by the Parliamentary Standing Committee.

The code on Wages bill was introduced on August 10, 2017, and then after referred to the Standing Committee. The Ministry has decided to remove specific provisions in the law, drawing criticism from trade unions.

With the recommendation of the Second National Commission on labour the Ministry have formulated four wages code, industrial relation, social security, occupational safety, health and working conditions by amalgamation, and simplify the provision of the existing central laws.

The labour ministry said that the government has also taken many more steps for the labourers and their employment. The ministry is also working on the code of social security and welfare, a preliminary draft of this code was placed on the website of the ministry on March 16, 2017. The ministry added the ‘Fixed Term Employment Workman’ for all sectors Standing Order Act, 1946.

The fixed term employment aims are to give flexibility to the employers to face the challenges of the globalisation and other aspects too. This would be beneficial for workers as it gives the ‘FTE Workman’ the same directive benefits as that of regular workers in a quick manner. This would also decrease the exploitation of contract workers as the employer would directly hire a worker without any mediator in the form of contract for a fixed term.

Need for labour legislation

• The relationship between employer and employee is one of the partnerships for the maintenance of productivity of the national economy.
• The community as a whole or as an individual is under an obligation to protect their employees and to provide them with a healthy environment for their employees.
• The individual employers are weak, they cannot bargain to their employers for the protection of their rights, so as such legislation will provide them with the security of their work.
• To increase the bargaining power of labour, the legislation encourages the formation of the trade union.
• To avoid various industrial disputes.
• To protect women and children from working in a hazardous situation.

Factors of labour law

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I. Employment

Employment is considered as a basic concept of labour law. Prior to the great depression and World War II, the great emphasis was upon the prevention or reduction of unemployment rather than upon long-term employment policy as part of a comprehensive scheme to promote economic stability and growth.

The new approach arises with the changes in the political outlook and economic thought. The approach has found expression in the legal provision that establishes employment policy as the general policy. To this end, legislation has established the necessary framework for forecasting labour needs. This legislation gives freedom from forced labour equality of treatment in employment and occupation, and unemployment benefits in a broader sense.

II. Individual employment relations

It involves certain aspects of promotions, transfer, some dismissal procedure and compensation. If we go into history, the labour law is defined as the law of a master and servant. This is completely a contractual relationship in which one party is agreed to serve another party and was bound to obey all the orders in return master has to pay the wage and grant some protection to workers.

As the law developed the implications of statutory provisions such as termination of employment, dismissal procedures and compensation, minimum wages, conditions of work, and social security rights, it began to limit freedom of contract.

III. Wages and remuneration

Law on wages and remuneration covers such elements like forms and method of payments, the protection against the unlawful deduction and other abuses, minimum wage arrangements the determination of wages, more benefits etc. The concept of wage regulation is to restrain social evil, which is suppressed by these policies. Wage policies are designed to promote economic stability.

In Hydro Engineers Pvt. Ltd vs. Workman, the Supreme Court held that there was no reason to interfere with the minimum wage fixed by the tribunal. The Supreme Court agreed with the tribunal and said that in prescribing a minimum wage rate the capacity of the employer need not be considered. The reason for the same is that the state assumes that every employer must pay the minimum wage before the employer and must not run an enterprise employing workers if it is unable to pay the minimum wage.

IV. Conditions of work and fulfilment of their basic needs

The condition of work involves the working condition, working hours, rest periods, vacations, the prohibition of child labour and regulation of employment of youth concerning with the various provisions regarding the employment of women. The provisions regarding the women and child are to protect them from evils of the industry. These factors essentially deal with the admission of employment, night work, excessive work, but all these providers will be modified after the 20th century.

The protection of child labour has increased with the growth in education rate. Child labour is decreasing in the industrialized sector. And, the employment opportunities for women employee become more varied. There are laws giving them legal guarantees for equal pay and equal employment. Also, there has been the introduction of laws which provide for the maternity protection and facilities to enable women to work while maintaining her family.

Case law protecting the rights of labour

Randhir Singh v. union of India

In this landmark case, the court in view of article 14, 16, 19, and 39(d) had observed that equal pay for equal work is not one of the substance the court in case opined that construing articles 14 and 16 in the light of the preamble and Article 39(d) the principle equal pay for equal work is general principle from that article and may be completely applied to cases of inappropriate scale of pay based on not any kind of classification.

Amita v. union of India

In this case, the Supreme Court held that the expression matter relating to appointment and employment contained in Article 16(1) includes all matter in relation to both prior and subsequent to the employment which is incidental to the employment and forms part of terms and conditions of such employment.

Badrinath v. Government of Tamil Nadu

In this, the Court held that the right to be considered for promotion by the departmental promotion committee is a fundamental right guaranteed under Article 16 provided a person is eligible and is the zone of consideration but the consideration must be fair and according to the established principle governing service jurisprudence.

Trade union and their relations with the industry

The trade union is also known as a labour union in the United States. It is the organizations of labours to enhance and modify their work life. A trade union generally negotiates with employers on behalf of their members, advocating for better working conditions, compensation and job security. The union play an important role in industrial relation and relation between employee and employer.

I.Strikes and lockouts

Strikes and lockouts are the last actions taken by employees and employers to ensure that both will get what they demand. These are said to the last centre after the conciliation measures.

A Strike occurs when employees refuse to go on work while the employer refuses to agree on the demands of employees. Lockout happens when employers bars employees from working with the aim of getting employees to adjust with their demands as well.

The Industrial Dispute Act gives the peaceful room for strikes and lockouts that take place in industries, causing no harm to society, mischief to other public areas and industrial areas.

II.Collective bargaining

Collective bargaining is a negotiation process where employees negotiate with an employer when certain issues arise. The employees rely on a union member to represent them during the bargaining process, and the negotiations often relate to regulating such issues as working conditions, employee safety, training, wages, and layoffs.

Employees covered by collective bargaining often have better working conditions, higher wages, and better benefits packages than employees who are not members of a labour union. For example, union workers are more than 18 per cent more likely to have affordable health insurance, and 22 per cent more likely to have pension coverage.

Wage advantages by collective bargaining basically benefit the earners of middle and lower wages. Participating in labour unions and collective bargaining benefits employees by decreasing the wage differences that exist between male and female employees.

III.Conciliation, Arbitration and Adjudication

Conciliation

Conciliation is the alternative of out of the court dispute resolving process. Like, it is also a voluntary process, flexible process. The parties reach an amicable dispute settlement with the appointed conciliator who acts neutral as a third party. The third party can be an individual or a group of people.

Conciliation is characterised by the following features:

• The conciliator tries to resolve the dispute between the parties.
• The conciliator persuades the parties to think over the matter with the resolving approach.
• The conciliator persuades the parties to reach over the solution never imposes his point of view.
• If the matter is not resolving or the case is on other factor or should be transferred to tribunal or labour court, then the conciliator may change his approach.

Conciliation machinery consists of:

• Conciliation officer

In the Industrial Dispute Act, Section 4 provides the appropriate government to appoint the appropriate person as it thinks fit for the conciliation proceedings. The appropriate government means in whose the jurisdiction of the dispute falls. While the commissioner, additional commissioner or deputy commissioner is appointed as a conciliation officer for the appointment of 20 or more persons at the state level from the central level.

Commission office is appointed a conciliation officer in the case of the central government. The conciliation officer has the power of the civil court and the conciliation officer has to submit the report within 14 days from the procedure starts. The judgement given by him is binding upon the parties.

• Conciliation board

If appointed conciliation officer, under the Industrial Dispute Act, is unable to resolve the dispute then the appropriate government can appoint a conciliation board. But the conciliation board is not a permanent institution like a conciliation officer. It is a body consisting of one chairman and two or four-member nominated in equal numbers by the parties.

Arbitration

Arbitration is a process in which the parties voluntarily agreed to refer their dispute to a neutral third party known as an arbitrator. Arbitration is a little different from conciliation. In arbitration, the arbitrator gives his judgement on the dispute, but in conciliation, the conciliator disputing parties has to reach a decision.

The arbitrator does not enjoy any judicial power, the arbitrator listens to the parties and then gives his judgement and that judgement is binding upon the parties. The government publish the judgment within the 30 days from the date of submission and it became enforceable after 30 days.

In India, there are two types of voluntary and compulsory arbitration:

• Voluntary arbitration

In this, both the conflicting parties appoint a neutral third party that is the arbitrator and refer the dispute to that arbitrator but the voluntary arbitration is not successful because its judgement is not binding upon the parties.

• Compulsory arbitration

In this kind of arbitration, the government can force the parties to go for compulsory arbitration. And also, disputing parties can refer their dispute for arbitration, and the judgement given to the parties is binding upon them.

Adjudication

The ultimate remedy for the settlement of the unresolved dispute is its reference to adjudication by the government. The government can refer this dispute to adjudication with or without the consent of the parties. When the dispute is referred to with the consent of the parties, then it is voluntary adjudication. When the government itself refer the dispute to adjudication then it is compulsory adjudication.

Three tier machinery for the adjudication can be given as follows:

1. Labour court

Under section 7 of the Industrial Dispute Act 1947, the appropriate government by notifying in official gazette can appoint a labour court for resolving the disputes. The labour court consist of one independent person, who is a presiding officer or has been the judge of the High Court or has been district judge or additional district judge for not less than 3 years or has been presiding officer of Labour Court not less than 5 years. The Labour Court deals with the matters specified in the second schedule of the Industrial Dispute Act.

These deals with :

• The application of the Standing orders.
• Discharge or dismissal of workers, including reinstatement or grant of relief to workmen, wrongfully dismissed.
• Withdrawal of any statutory concession or privilege.
• Illegal strikes and lockouts.

2. Industrial tribunal

Under section 7(a) of the Act, the appropriate government may constitute one or more tribunal for the adjudication of the industrial disputes, it has wider jurisdiction.

The matters that come within the jurisdiction of an industrial tribunal

1. Wages, including the period and mode of payment.
2. Compensatory and other allowances.
3. Hours of work and rest periods.
4. Leave with wages and holidays.
5. Bonus, profit sharing, provident fund, and gratuity.
6. Classification by grades.
7. Rules of discipline.
8. Rationalisation.
9. Any other matter that can be prescribed.

3. National tribunal

It is a body consisting of one man adjudicating body appointed the appropriate government by notifying in the official gazette for adjudication of an industrial dispute of the national matters. The central government if it thinks fit, appoints two or more assessor to assess national tribunal. When the dispute is referred to National Tribunal, then no labour court or industrial tribunal can adjudicate the dispute.

Labour Law and Constitution

Factories Act, 1948

The Factories Act was enforced to amend the laws regarding the factories and for those who are working in the factories. It applies to the whole of India, where 20 or more workers are employed. The aim of the act is to safeguard the interests of workers and protects them from exploitation and discrimination. This Act gives the standards with regards to safety, healthy life, working hours of the workers.

According to Section 2(m) of the Factories Act, factory means any premises where ten or more persons are working in any manufacturing process with the aid of the power and twenty or more persons working in the manufacturing process without the aid of the power.

Industrial Dispute Act, 1947

It is formulated to make the provision for settlement of disputes in the industry. The objective of the Industrial Disputes Act is to secure the industrial peace and harmony by providing machinery and procedure for the investigation and settlement of industrial disputes by conciliation, arbitration and adjudication machinery which is provided under the statute. This law is only applicable to the organised sector.

As per definition, under 2(k) of the Industrial Dispute Act, an Industrial dispute means any dispute or difference between employer and employee or between employers or workman or between two workmen. The issues might be connected with the employment, with non-employment, with the conditions of employment or with the conditions of any labour.

Authorities under the Industrial Dispute Act

• Labour courts and tribunal in India- Industrial Dispute Act provides for the constitution of labour courts and tribunals for the adjudication of disputes. The labour court and tribunal are constituted by the appropriate government by notifying in the official gazette.

• National tribunal- The Industrial Dispute Act provides that the central government may constitute a national tribunal The tribunal might work for adjudication of an industrial dispute, which in the opinion of the central government may involve the question of national importance.

• Working committee- A working committee is constituted by the employer of an industrial establishment on a special order issued by the appropriate government where the number of workmen employed is one hundred more. The committee consists of a representative of the workman and employer.

• Conciliation officers/boards of conciliation– The Conciliation Officer is appointed by the appropriate government. He/she is entrusted with the duty of resolving the disputes.

• Court of enquiry- It is constituted by the appropriate government for enquiring into the matter related to the dispute.

Sexual Harassment of Women at Workplace Act, 2013

In the recent era, the incidents of the crimes are increasing against women. It is essential that women are aware of their laws and rights and the employers are aware of their laws which prevent sexual harassment at the workplace. So that Sexual Harassment of Women at Workplace Act, 2013 was enforced.

The basis of this lies on the judgement of the Vishaka v. State of Rajasthan. In this case, the court ruled that action resulting in violation of one’s right to gender equality and life and liberty are the violation of his or her fundamental rights, under article 19(1)(g) of the Indian constitution which provides right to practise any trade, occupation.

Maternity Benefits Act,1961

The main object of this Maternity Benefit Act to provide the security to the dignity of the motherliness by providing the full benefit to the child and mother. For this concern, the maternity benefit act is enforced.

This act applies to every factory, industry, any working place where ten or more people are employed. Infringement of this act incurs imprisonment of three months which can be extended up to one year. a fine of 2000 to 5000 is imposed.

Minimum Wages Act, 1948

Minimum Wages Act, 1948 is central legislation focused at the fixation of minimum wage rate, in this industry there highly possibility of exploitation of employees in the industries. The aim of this act is to achieve social justice to the workman who is employed.

The term minimum wages means the fixing of the rate of wages by process or by supplicating the state authority. Minimum wages consists of basic wage and allowances for the cost of living, for the basic necessity. The minimum wage act has a force of law the employers are strictly prohibited for paying the wage below the wage rate. the obligation of the employer to pay the said wage rate is absolute.

Payment of Gratuity Act, 1972

It is a type of retirement benefit. It is a payment made with the intention of helping the employees after retirement. It was held in case Indian Hume Pipe co. ltd v. Workman that the general principle underlying gratuity scheme is that by service over a long period the employee is entitled to claim a certain amount as a retirement benefit.

The Payment of Gratuity Act is passed by the Indian Parliament on 21 August 1972. The act enforced on 16 September 1972. This act is extended to the whole of India but extended in Jammu and Kashmir. it applies to those organisations with 10 or more persons are employed on any day of the preceding 12 months.

Eligibility for Payment of gratuity

Under Section 4 of this Act, payment of gratuity is mandatory. Gratuity is payable to the employee after the termination of employment after he has rendered his continuous service in the single organization which is not less than 5 years. Termination can be due to following reasons:

1. Superannuation
2. Retirement or Resignation
3. On death or disablement due to disease

Note: The completion of 5 years is not mandatory in case of death or accident in such cases mandatory gratuity is payable.

Different Plan and Policy and Development of Labour Policy

First five-year plan

In the First Five Year, the main attention was given to labour problems on two matters: the welfare of the labourer class and the country’s economic stability and workers’ right to form an association, union, organisation and collective bargaining were get attention.

In order to maintain relations between employers and workers, the Planning Commissions recommends certain norms and standards. Works Committees were recommended for the settlement of differences.

Second five-year plan

Code of discipline in the industry was accepted voluntarily by all the employers of the organization and workers which have been in operation since the middle of 1958.

The code has laid down specific obligations for the management and workers with the object of good cooperation between their employees at all levels. As a result of this new concept, such improvement occurs in industrial relations.

The code provides that every employee shall have the freedom and right awards to join a union of his own choice.

During the Second Five Year Plan, two steps were undertaken. Firstly, workers participation in management was spread. Joint management councils were established. The Council has to bring mutual consultation between employers and workers over important issues which affect industrial relations.

Secondly, educational planning for workers is implemented. This scheme comprises training of teacher- administration and worker teachers. This scheme has helped to raise the self-confidence of workers and has increased their ability to take advantage of protective labour laws.

Third five-year plan

Labour policy was plan according to long term need of a planned economy, India’s labour policy is to achieve full employment and increasing the standard of living of labourer, this plan is subject to the requirements of further development and interest of all the sections of society, in particular, the satisfaction of the basic needs of all its members.

Fourth five-year plan

The labour policy in the Fourth Five Year Plan was evolved with two basic concepts:

(1) The relationship between workers and employers is kind of a partnership.

(2) The employees are under obligation to protect the well-living of employees. Greater emphasis was placed on collective bargaining.

Fifth five-year plan

The labour supply matters contained in the Fifth Plan increase in the labour force about 18.26 million hence the plan is oriented for various employment opportunities

The sixth and seventh five-year plan

The labour policy adopted in the Sixth Plan was for the achievement of the following objectives:

1.  To establish pleasant employers and workers.
2. To speed up the rate of industrial development and to create opportunities for employment.
3. To raise the living standard of workers in general and the weaker section.

From time to time, suggestions have been given for the review of the working of labour policy. Since independence, the industrial scene has undergone various changes. The scenario of the working class has changed in several respects.

Special labour laws applicable to the following sectors of industry

Journalists

Working Journalists and Other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955 brought into existence to regulate the working conditions of the working journalist and ensure wage stability and employment.

The Working Journalist Fixation of Rate of Wages Act, 1958 which was another Act enforced to provide for the fixation of rates of wages in respect of working journalists and for matters connected therewith.

Cinema Workers

The Cine -Workers and Cinema Theatre Workers (Regulation of Employment Act, 1981 was brought into existence. This act provides regulation for the working conditions of the cine- worker or theatre worker. This act extends to the whole of India. It shall come into force by the central government by notifying in the official gazette.

Railways

The Railways Labour Act, 2005 regulating the hours of work and rest of the Railway workers called Railway servants. And, any orders issued thereunder they were inconsistent with revised rules have been repealed and revised rules called “The Railway Servants (Hours of Work and Period of Rest) Rules, 2005.

Mining Industry

The Mines Act, 1952 was enforced as the mining and mineral sector needs special attention so that it can be utilized and not exploited for personal needs. The Mines Act governs the regulation of mines and minerals.

Steps were taken by the government in labour law sector

• Draft labour code on social security

The draft of the labour code on social security and welfare, 2017 was placed on the ministry website on 16th March 2017, for the comments of the stakeholder, the revised draft is prepared.

The employers, workers, trade union, are invited to give their suggestions and comments on this draft if there are any suggestions on this revised code it is submitted to the undersecretary of the Ministry of Labour.

About social security

Social Security means a program that requires the government to create a fund or system which can be used to make payments to people who are unable to work because of circumstances. Essential features of Social Security are that it is compulsory by law, administered by the government and it has provisions of rights and enforcement.

The right to social security has been treated as a human right by the United Nations. The ‘Social Security adopted by the International Labour Organization (ILO) in 1952 also prescribes minimum standards for benefits in the important areas of social security. India has not yet confirmed this convention. It is high time that now the Country moves towards providing the minimum standards of social security to all its citizen.

Social security coverage extension in the BRICS.

Its objectives are:

• To enhance international visibility and facilitate knowledge sharing on Social Security Reforms in the BRICS Country.
• To highlight major challenges and innovative responses to extending social security coverage in the BRICS countries.
• To facilitate the promotion and implementation of the international social security standards for social security administration in the BRICS country.
• Characteristics and opportunities.
• The five BRICS countries have enjoyed significant and sustained economic growth over the last two decades.
• There also have been fast-moving cultural changes in family structures from rural to urban organizations.
• The BRICS share a political will to extend social security coverage.

• Schemes implemented by government

PM shram yogi maan- dhan

Government of India has launched a pension scheme for unorganised workers namely Pradhan Mantri Shram Yogi Maan-dhan (PM-SYM) to secure old age protection for Unorganised Workers.

The unorganised workers regularly employed as, street vendors, home-based workers, mid-day meal workers, audio-visual workers and related to different professions whose monthly income is Rs 15,000/ per month or limited and apply to the age group of 18-40 years. They should not be included in the New Pension Scheme (NPS), Employees’ State Insurance Corporation (ESIC) scheme or Employees’ Provident Fund Organisation (EPFO).

Aam aadmi beema yojna

The employees in the unorganized sector form about 93% of the whole workforce in the country. The Government has been performing some social security standards for certain professional groups. Numbers of the workers are still without any social security. Realizing the demand for social security for these workers, the Central Government has launched a Bill in the Parliament.

Grant in aid on child and woman labour

Grant in aid on child labour

Funds under Grants-in-Aid Scheme are approved directly to NGO for the removal of Child Labour in areas not covered by NCLP Scheme. Under the scheme, willing companies are given financial support of the Ministry of Labour on the direction of government to the extent of 75% of the project cost for the improvement of children. Willing organizations have been getting funds under the scheme. recently, about 70 intentionally agencies are being served.

Grant in Aid on Women Labour

The Ministry was running a Grant-in-aid Scheme for the well-being of women labour. This Scheme, was proceeding the Sixth Five Year Plan, was governed throughout willing organizations by giving grant-in-aid to them for the following objectives:

Regulating the working women and training them about their rights/duties, giving Legal aid to working women. Workshops, classes, etc. aiming at raising the general consciousness of the society about the problems of women labour.

Under this Plan, Willing Organizations were given funds by way of grants-in-aid to carry the action-oriented schemes for the benefit of women labour. Schemes associated with information formation of campaigns for women labour under this Scheme. The aim of the Scheme was information generation among women labour, in the matter of minimum wages, wages etc. to distribute notice on different plans of Central/State Government Offices ready for the benefit of women labour.

National Child labour project

The National Child Labour plan was passed by the Cabinet on 14th August, throughout the Seventh Five Year Plan Period. The plan was formulated with the primary aim of well improving the children. Removing them from employment.

Plan schemes for DGMS

• To decrease the danger of accidents in mines by risk estimation and administration techniques.
• Classification of mines having the immense risk of accidents and arrange a Risk Management Plan for such mines of the plans.
• Distribution of mine knowledge through multiple reports, technological instructions, electronic information as well as other general things.

Plan scheme of DGFASLI.

• Upgradation of various workrooms of CLI & RLIs by the purchase of high accuracy and art instruments and types of equipment to perform as National Referral Laboratories on functional safety and health.
• Guiding the Occupational Safety, Health environment and Work environment in industries.
• Building up the plan for the enforcement in systems in the major parts.
• Verification of a system for finding and distribution of information on OSH.
• Improvement of professional abilities of officers of DGFASLI & State Factories Inspectorates.
• Development in Occupational Safety and Health in vessel Breaking Industry.
• Generating information on industrial safety and health in different areas of the market by training.

Related practice area

Employment Law: Labor law fixes measures for employer and employee in a manner at the workplace and can perform an important role in many employment law cases.

Wage and Benefits Law: Wage and benefits matters look to labour law to define minimum wage.

Education Law: Teachers, professor simultaneously with other state government employees, are enough to be union members than other professions. Agreements contracted with teachers’ unions usually have an important impact on education policy.

Conclusion

In the developing economy, the demand for skilled labour is increased, for regulating them labour law was introduced and it regulates their wage, safety and heals, working hours, family security, right to form a union for resolving their disputes and many more. Labour law differs from the earlier branches of the law.

Labour law’s historical past has been in some situation and inspired by society and go with the flow of political change, its development is so fast, and it is expanded on a world scale. The development of labour law is free from any limitations. There is not any situation where the labour law is losing its significant position.

While some of the new protective legislation, mainly targeted for the safeguard of females workers, shedding their value.

The tendency of labour law is for approaching more general legislation including a broader scope of subjects and usually dealing with matters related to the disputes, and contracts. It is useful to minimize the adverse effect which usually happens after the closing of the industry, or retrenchment of workers, it gives the social security to the labourers. There is also a scheme “Voluntary Retirement Scheme”(VRS). This is the most common method to reduce the excess labour load. It is also named as a golden route to retrenchment. This scheme does not create pressure on the workers to voluntarily get retirement, it is upon them to decide, the government introduced it in both the public and private sectors.

Labour law gives many opportunities for the attorneys, they are hired by the trade unions formed by the labours or by the corporation that hires union employees.

The post An introduction to labour law in India appeared first on iPleaders.

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

Taking the decision to build a career in litigation requires courage and determination. It is a difficult journey.  

One of the questions people have when they set out to build a career in litigation is about backup plans. What are their backup options, if, for some reason, a career in litigation does not work out? Or simply, if they choose to shift to a different career, what are their alternatives? Does the prior litigation experience count in their favour, or is it irrelevant?

Let us take a look at the options available for litigators in a law firm and in the in-house legal department of a company.

Some of you may also be interested in becoming a judge, which we will discuss in a separate article.

Dispute resolution team of a law firm

Law firms are frequently looking to hire experienced litigators to head or work in their dispute resolution practice. Dispute resolution is subdivided into different kinds of sub-practice areas, so if you are not senior enough to head the entire dispute resolution practice area, you still have the opportunity to manage a team.

For example, you could handle insolvency and bankruptcy work, or white-collar crime work, and have a team of 3-5 litigators who report to you.

                                                  Click Above

From time to time, law firms commence a new litigation practice around an emerging area or diversify their existing litigation practice. For example, a law firm which primarily performed investment disputes-related and arbitration work for its corporate clients may intend to hire a litigation partner to handle work around money laundering, black money act, or Fugitive Economic Offenders Act, 2018 etc.

If you want to work in a law firm, therefore, business focussed specialized litigation experience is very useful because of that reason.

For example, if you have specialized experience in regulatory litigation, such as before SAT, TDSAT, NCLAT or APTEL, that is highly attractive to a law firm for lateral hire.

Why is your experience as a litigator valuable for a law firm?

• As a litigator, you have built a practice from the ground level, which means you are familiar with building something from scratch. Therefore, it is understood that you will be able to help a law firm in building a new practice area from scratch, as you are familiar with the challenges during different stages of creation and growth of a new practice area.
• Successful litigators are used to taking a high-level of accountability for their actions. While they cannot guarantee successful outcomes, their effectiveness and success depend on the degree to which they can take accountability for a client’s case. They do not depend on multiple disclaimers and exceptions in their advice or their argumentative work. As their advice is very direct, clients appreciate it.
• A lot of commercial law firm advice is limited to identification of the applicable law and delegated legislation (rules, notifications and circulars), its interpretation and identification of available case law to clarify any grey areas. However, a lot of strategic advice may not have clear answers. In fact, regulatory authorities may not act as per the correct interpretation of the law. In this regard, litigators find it easier to plan a few steps ahead and accommodate the subsequent strategy if a few things go wrong along the way. By way of an example, an Income Tax Officer may use a provision of the Income Tax Act in a very different way for assessment from the instructions of the Supreme Court on the topic. A litigator is able to factor these events in advice or strategic work pertaining to the clients. For this reason, a litigator’s advice can potentially be more end-to-end, richer and holistic.
• A litigator’s inputs are relevant not just for the dispute resolution practice, but for the transactions and the advisory team as well. A legal opinion, a contract or an innovative legal structure for a large transaction is often reviewed from a dispute resolution perspective as well, to ensure minimal litigation or regulatory risk. Inputs suggested by litigators at this stage are indispensable. This is one of the reasons why most law firms want to build a litigation team in-house, that is, to improve the overall quality and superiority of their transactional and advisory work.
• Litigation work is very technical and high-margin work, and least likely to be adversely affected by technological or market developments which may, to some extent, render corporate lawyers redundant. For example, the growth of in-house legal has taken away a lot of work from law firms in the last 10 years. Use of sophisticated AI in due diligence and contract drafting has led to less lawyers billing for these tasks. In comparison, even though litigation-work and justice delivery has scope for automation, the work of a litigator is not so easily dispensable.  

If you join a firm with some experience as a litigator, you may have a certain level of freedom and flexibility to build new practice areas within the firm. You may also have the opportunity to move in with your juniors or hire new people in your team, which can be very exciting.

The opportunity to build your own team within a law firm affords a different kind of perspective and work satisfaction. While you enjoy the benefits and stability of a law firm job, your prior experience enables you to retain the freedom to customize your working style to a significant extent, which is not a privilege that is regularly enjoyed in a law firm.  

However, whether or not a law firm gives you such opportunities will depend a lot on your prior organisation building experience as well as a reputation as a litigator which would often define your ability to attract clients within a law firm’s business development ecosystem.

In-house litigation teams in companies

Indian companies are expanding globally, and with the increasing complexity of the regulatory framework in India, the size of their in-house legal teams is increasing. The in-house legal team of some companies and banks is often larger than a law firm. For example, the Tata Group employs around 700 lawyers, Mahindra & Mahindra has around 60 lawyers in the parent company and more than 400 lawyers at the group level. ICICI Group’s banking, insurance, securities and venture business employs around 300 lawyers according to publicly available data.

For these companies, the volume of litigation work can be huge. Sometimes a large company may be dealing with tens of thousands of ongoing litigation at a time. These companies divide their in-house legal teams into litigation and other verticals. Further, if a company is operating in a heavily regulated or litigation-prone sector, such as banking, insurance, tobacco, liquor, media and entertainment, infrastructure, it is likely to have a separate in-house litigation vertical within the in-house legal team. Mahindra is an example of this (see Livemint article here).

Do you know the volume or scale of litigation work in these companies? As per the Hindu Business Line article here, Hemant Kanoria, a promoter of the SREI group, an Indian conglomerate with a global presence across multiple industry sectors, stated that more than 500,000 crores are locked up in infrastructure disputes.

Can you imagine the experience of creating strategies for the entire company or the group to work on disputes of such high value and importance?

Now that you recognize the opportunity for a litigator in an in-house legal team of a company, you might want to look more at the advantages of being a litigator.

Several litigators who subsequently moved into the in-house team of a company shared the following advantages in their new role, which arises from their prior litigation experience:   

• An in-house counsel with prior litigation experience has a key role to play in the development of the in-house strategy for work which involves complex structuring or litigation risk. This part of the exercise requires extensive involvement with the promoters and the key business heads. It is a business strategy-related exercise. Based on this strategy, law firms are briefed for the execution of follow-on transactional and structuring work.
• An in-house counsel with a litigation experience plays a crucial role in the formulation of national and international dispute resolution and enforcement strategy with the board and the management, in litigation-prone sectors.
• A litigator with prior experience is highly capable of working effectively with lawyers from different jurisdictions and forums across the country and ensure a high quality of output from them. If someone in this role does not have prior litigation experience, he or she may not be able to effectively control the case strategy or obtain favourable outcomes. Also, the costs incurred may be much higher.
• Some in-house counsels with litigation experience say that court-related work gives them the ability to think on their feet and make quick decisions, which is highly relevant for formulation of strategy in industries which are rapidly developing. It also enables them to have a lot of clarity about their advice.
• Sector-specific or forum-specific experience can come in handy too, so play to your strengths. For example, if you have worked as a tax lawyer, you will have significant advantages in working with a company like ITC, which has a lot of tax disputes. If you have recovery litigation-related experience, working at a bank may be beneficial. If you have experience of securities litigation, working at a stock brokerage may be lucrative.
• Indian lawyers have a lot to contribute to the global expansion of Indian companies into other regions such as the Middle East, Africa, South-East Asia, etc. Insights acquired from the experience of dealing with Indian regulators and the legal system are useful in handling disputes-related scenarios offshore as well, especially in countries where the legal system has developed from the common law and which do not have the best international law firms to advise, or where approaching these firms is not cost-effective for the Indian promoter.

Thus, irrespective of whether you work in a law firm or as an in-house counsel in a company, your prior litigation experience is the secret ingredient that sets you apart, in comparison to your peers.

The opportunity to transition into a career at a law firm or as an in-house counsel is available early in your career, say, after 2-3 years of experience or even, later on, say, after 7-10 years or afterwards.

In order that you are able to benefit from new opportunities in your career, you will need to ensure you develop a personal brand of your own and cultivate professional relationships with partners at law firms, general counsels and even with headhunters. Also, keep in mind that the law firm or company acting on the other party’s side may also be a potential recruiter in future, so treat them with respect and dignity, while taking care of your client’s interest. We address a lot of these issues in online classes for learners who have taken up the Lawsikho Master Access, a Lawsikho Diploma or an Executive Certificate Course.  

If you want to explore a career in litigation, you can take a look at a course on civil litigation, criminal litigation and arbitration (extremely relevant for a generalist’s profile) or insolvency and bankruptcy code to learn practical legal work around these areas. The executive certificate course on corporate taxation and the Companies Act diploma (includes NCLT and SAT litigation) are relevant if you want to specialize in litigation work pertaining to a specific sector. If you are interested in more than one or two courses, remember that the Master Access may provide you unlimited access (see the terms on the page) and a significant discount over the per course price you will pay, if you enrol in the courses individually.  Master Access is currently not open for subscription. Keep an eye here to know when we will launch it again.

We are going to launch an attractive package for lawyers who are looking to do only litigation courses. Again, keep an eye on this space.

The post What are the Backup Career Options for a Litigator? Can you switch to a Law Firm or an MNC? appeared first on iPleaders.

This article on ‘Termination of Guardianship under Hindu Minorities and Guardianship Act, 1956’ has been written by Nishant Vimal, a 3rd-year student from Symbiosis Law School, Hyderabad.

Introduction

Every natural guardian has an obligation to act for the best interest of his child and he is required to take care of his child and property. This includes taking care of the interests of the child, fulfilling his needs such as educational, medical and etc. It also involves proper upbringing of the child and making decisions for the benefit of the child and his property.

Section 13 of the Hindu Minorities and Guardianship Act, 1956 states about the welfare of the child and hence gives a right to the court to terminate the guardianship of any person if the appointment is not made for the welfare of the child which is of paramount consideration.

End of Guardianship

Guardianship can be ended in a situation when either the guardian has witnessed some unforeseeable circumstance or the court feels that the guardianship was not in the welfare of the child, which is prohibited under Section 13 of the Hindu Minorities and Guardianship Act, 1956.

Factors to consider before ending the guardianship

Any guardianship can be ended but the judges are required to consider the following before coming to any conclusion and pronouncing the decision:

• The child’s best interests

The person asking to end the guardianship must be able to prove to the court that ending the guardianship is in the child’s best interest.

In a landmark case in which the court had to decide the custody of a girl child Thirty Hoshie Dolikuka v. H.S. Dolikuka (1), an eleven-year-old girl lived with her father. The mother alleged that the father fragmented the thinking of the child in a way that caused the daughter a lot of psychological strain and a nervous breakdown. The father was firm on the idea of having the guardianship and custody of the child, and on the contrary, the mother wanted to remove the child from the custody of the father.

The mother wanted to continue sending the child back in the boarding school. As the mother was working, she had the means to earn and stated that she will be able to meet the required expenses of the boarding school.

The Hon’ble High Court gave an unpopular judgement where they gave custody to the father as the mother was working and she will not be able to devote a lot of time for the child’s interests and admitting her into a boarding school can affect her mentality. Although the father was also working, the court observed this and pronounced the judgement.

However, the Hon’ble Supreme Court intervened and overruled this judgement of the High Court stating that whether a woman is working or not is an irrelevant aspect to consider while giving guardianship and custody to anyone. The court cannot judge her ability to take care of the child based on this. The Court held that the mother should have custody of the daughter until the time she attains the age of 16 years. The working status of the mother does not affect and should not affect any court’s decision by giving guardianship and custody of a child to her and hence, this became an established principle that this aspect is not to be considered in deciding the question of guardianship and custody.

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• Parent’s wishes

If the parent of the child wants the custody of the child back and wants to live with the child again, the court and judge shall make sure that the parent has:

• Proper Residence

It is important to make sure that the parents can keep the child in a stable place to ensure mental peace for the child.

• Sufficient means to earn

Court has to ensure that the parents have a reliable source of earning a livelihood and income to support the child so that he gets all the educational facilities in order for his growth.

The welfare of the child is always the paramount consideration, but in some situations, the court has to consider the aspect of the economic well-being of any of the parties.

In the case of Bhagyalakshmi v. K Narayana Rao (2), the court prioritized on the economic well-being of the fathers and gave custody and guardianship rights to them. There were 3 children who were taken away by the mother who left the husband. 3 years later, the father filed in for the custody of all the children.

The learned judge observed that the mother was dependent on her aged father and did not have sufficient means to earn. This resulted in a fear of the children being helpless after the death of the mother’s father and then they will be devoid of all facilities that are needed for the welfare of the children. They also observed that the elder son would receive the best advice from the father and the daughters would get the best care from him. The court came to the conclusion that the father could provide them with physical comfort and all necessary educational facilities.

A similar feat was repeated in the case of Jaswant Kaur v. Manjit Singh (3), wherein, the father was given the custody of the child based on his economic well-being. In this case, the mother gave birth to the child at her parent’s house and the child remained in their custody. The father sued the maternal grandparents for custody when the boy was ten. The court granted custody to the father, viewing the minor’s welfare as including the child’s material as well as his spiritual well-being. The father was better off financially, whereas the mother’s father was in debt.

• Is “fit” or has been sufficiently rehabilitated

Court has to ensure that the parents are fit to take the child under their guardianship and custody. Under Section 19 (a) & (b) of the Guardians and Wards Act, 1890, it is important to ensure that the husband and the father of the child are fit to be a guardian. They shall make sure of that fact that the parents have recovered from their earlier decision of giving the child into the guardianship of another.

In the case of Jijabhai Vithalrao Gajre v. Pathankhan and others (4), it was held that a father may be declared unfit, because he may not be well in economic aspect not, or he could be a person with an unsound mind, or might not ensure physical comfort to the child, or is separated with the mother of that child and has been living separately for a brief period of time without taking any interest in the custody or guardianship of the minor, or if he has remarried.

• Provide all the necessary facilities

The welfare of the child is of paramount consideration and the court has to ensure that the parents will provide with all the educational facilities, physical comfort and etc.

• Child’s wishes

Once the child has attained the age of 12 years, he or she can require the court to consider his wish of living in a particular place which may not necessarily be with the guardian.

How can the guardianship be ended?

There are many ways in which the guardianship can be ended:

• If the child attains the age of 18 years

Upon attaining the age of 18, if the child can maintain himself, the court may allow the removal of a guardian who was appointed to take his care or his property.

• The child decides to marry

In a given situation, if a girl child decides to marry, the husband will be her rightful guardian. If the husband is a minor, his guardians will be the guardian of the girl child as well. If a male child marries while in his minority, the guardians of the girl child will become his guardians as well.

• The child is adopted by adoptive parents

In a given situation, if the child is adopted by any couple other than the biological parents, his guardians will be the adoptive parents from the date the adoption is in effect.

• If the child dies before attaining the age of 18 years

Guardianship over a child is ended if he dies before attaining the age of 18 years.

• The court ends the guardianship

This can happen in any case where the child who is over the age of 12 years asks the court to end the guardianship. Also, of the parents of the guardian decide to take the custody of the child back, they can approach the court stating valid reasons in order for the removal of the guardian.

• If the Guardian decides to resign.

A guardian can end his guardianship over a child by resigning. For this, a notice is to be served to the people who should be notified about the end of guardianship like any near relatives of the child. Or to simplify this step, the notice can be given to all those who were notified about the guardianship of that person over the child. The person resigning needs to go through a court hearing wherein he is required to prove that it was for the benefit of the child that he shall resign.

If the judge and the court feel that there is a better alternative available at that time, then he or she will be replaced by another guardian which also will be appointed by the court itself. If the court finds no alternative available, the court has the discretion to make the child a dependant in a juvenile court.

Grounds for Disqualification

Court has the power to end the guardianship of any person as prescribed in Section 13 of the Hindu Minorities and Guardianship Act, 1956. There certain grounds that are necessary to be considered before the removal of the guardian which are stated below. If the guardian:

Ceases to be a Hindu/ Apostasy

If a person who is appointed as a guardian discontinues to carry on as a Hindu and decides to convert to any other religion or just stops following the Hindu religion and becomes an atheist, he will be stripped of his guardianship rights and the child will be sent to another person who the court may deem to be fit for the guardianship.

This is done because as per the essentials of guardianship under Hindu Minorities and Guardianship Act, 1956, it is said that the guardian of any Hindu child should be a Hindu, and any person of any other religion is not entitled to get the guardianship of the Hindu child.

The term ‘apostasy’ means the changing of one’s beliefs from one religion to another which is different from his previous beliefs.

In the case of Vijaylakshmi v. Police Inspector, 1991, it was held that when the father converts to be non-Hindu then mother shall be the natural guardian.

However in some cases, the judiciary in India focuses on the principle that India is a secular country, side-lined the aspect of religion in the case of Raj Kumar Gupta v. Barbara Gupta (5).

In this case, there was a child of a Hindu male and a Christian female. After their separation, the wife left the home along with the 3-year-old child and father later filed for the custody of the child.

The court answered in the favour of the Christian wife and allowed to give the custody to her as any child with a tender age and in this case, the child had been living with the mother for a brief period. The court opined that the phrase ‘if he ceases to be a Hindu’ does not mean non-Hindu, and stated that when a parent has never been a Hindu as was the situation, in this case, Section 6 of the Hindu Minorities and Guardianship Act cannot be invoked.

Renounces the world/ Civil Death (Sanyasi)

If a person who is appointed as a guardian decides to renounce the world and step out of all his duties, rights, obligations by giving up his belief in the world and wants to lead a holy life. It is when the person decides to disconnect from others in the world. The renounced order of life is known as sannyasi. If a guardian decides to part ways from all desires, liabilities, he is removed from his position as a guardian and his guardianship rights come to an end thereof.

The term ‘Civil Death’ stands for the end or termination of all civil rights of a person. In the context of guardianship, it stands when the guardian decides to give up all his civil rights and wishes to live a holy life.

Adverse interest for the child

The welfare of the child is of paramount consideration while giving guardianship and custody of a child to any person. In order to maintain this, the best interests of the child are to be taken into consideration.

If there is any motive on part of the guardian, which showcases any such interests which may harm the child or harm the property of the child. If the guardian takes any decision that may cause any injury to the property of the child, this will be called as a violation of the clauses of the guardianship agreement.

Every guardian needs to act in a way that enhances the growth of the child or his property. Such an interest which is contrary to the interests of the child will result in the removal of the guardian.

On the assumption that the guardian is an officer of the court because he is appointed by the court for the welfare of the child, the court can impose a duty upon the guardians to ensure that the interests of the child are never placed second fiddle to anything, and if there is any violation of this thing, they can call upon the guardians to protect the purpose of guardianship.

Therefore, it is said that he is bound to these duties and if there is any violation, the court can opt for his removal and devoid him of his guardianship rights. These principles were laid down in the case of Re Mansfield Estate (6) and Crawford (7)

Welfare of the child is to be given paramount consideration and his wishes have to be given priority and in the case of P.Senthil Kumar vs R.Sunitha, the court found it unnecessary to take guardianship and custody of the child away from the mother, as the father had not shown any interest in the welfare of the child and court observed that the child will only become a victim of the conflict between the parents if the father was given the custody and guardianship of the child.

Uses the property of minor for his personal use

A guardian is required to act for the best interests of the child, and he is required to get approval for any expenditure.

If a guardian has dealt with the property of the child without his knowledge and which is not for the benefit of the estate of the child and which may be for his own use like repayment of loan or etc., this will be a violation of the terms agreed upon during the guardianship agreement and he is bound to make all the decisions for the benefit of the estate of the child.

Any decision on the property of the child which may be for his personal use will result in his removal as the guardian. Any alteration on the property without court permission is also under this ground unless the child authorizes it afterwards. Any unwarranted borrowing of property by the guardian will result in his removal as guardian.

For example, if a guardian has property A and B under his supervision which is owned by the child. If he gives that property on the mortgage to in order to generate funds for his repayment of a loan he took for his car. This will be a use of the property for personal use and hence, will be a ground for his disqualification as a guardian.

Procedure to end the guardianship of the person

There are certain forms that are to be filled

Like:

• • Petition for Termination of Guardianship.
  • Notice of Hearing on guardianship or custody.
  • The order that terminates all the guardianship rights (Caption present at the box at the top is to be filled).
  • Any other requirement of forms.

Note: Court clerk or Help centres in the court can be consulted to ensure that one has all the forms as per requirement.

Review of forms

There are help centres or the court facilitator which provides assistance to people involved in guardianship cases, they also can review all the forms to see if all formalities are done so that there are no problems for the parties because of unfilled forms which can cause them trouble.

Copies of the required forms are necessary

This is done to ensure that the parties have a surplus number of copies of their forms to provide to the court and to keep for themselves. The minimum requirement will be 3 as the court will ask for the original form and a copy of it and the opposing party is to get a copy of that form. 

Filing of forms is necessary

All the required forms are to be filed. The court clerk is in charge of filing all the forms which will require payment of the filing fee which can at times be waived off. The clerk may keep the original and provide one with the other copies with the stamp “Filed”.

Notice is to be given to the persons interested at the end of guardianship

All the people who were notified of the appointment of a guardian shall be given a notice about the possible end of guardianship. The notice is to be given 15 days prior to the hearing of the end of guardianship.

If any relative who has expressly agreed to the removal of the guardian is required to sign the ‘Consent to Termination’ and ‘Waiver of Service’ and ‘Notice of Hearing’ on the back side of the petition filed for the hearing. After obtaining this, notice shall not be served to this person who has done the above-said formalities.

Presence in the court on the date of the hearing

Order Terminating Guardianship is to be filed and the court will begin the haring for the end of guardianship. If the court orders to terminate the guardianship, this form will be signed by the judge and it is to be filed thereafter.

Conclusion

Guardianship is a concept where a guardian is appointed to take care of a person who is a minor, which means that the person is below the age of eighteen years or any person who is incapable of taking care of himself or handling his own affairs and hence requires any assistance, support and supervision. Then, under such a situation a guardian is appointed to take care of his body and his property.

There are situations when the guardian does not perform his duty towards the child or his property or does not wish to do so, guardianship can be terminated in these situations. Court permission is needed before the end of guardianship to ensure that the child is not isolated. This article has laid emphasis on the different factors which are to be considered before ending the guardianship rights, various ways in which it can be ended and the grounds on which the guardianship is ended.

There are certain observations made by the author that the courts should consider while deciding on a question of guardianship and custody of the child:

1. A child who is of tender age (below the age of 5 years) may require the mother’s company and would require her care.
2. All the natural guardians have a natural right to have the custody and guardianship of the child but the mere presence of this right will not enable them to get the custody and guardianship.
3. A wife who has committed any “matrimonial fault” like desertion, adultery will not be instantly disqualified from being a guardian of a child and she can be given the custody of the child because the aim of the court where the question is of guardianship and custody is not to punish the guilty but to ensure the welfare of the child and so that his interest is valued.
4. Any parent cannot be granted custody only on the ground of economic superiority; although it is be given proper consideration.
5. Courts must take into account the wishes of a child who is capable of expressing them.
6. A mother cannot be denied custody solely on the ground that she is working.
7. The child shall not be made to be a victim of the issues that are present between the parents.

There is no such prevailing principle that governs the end or termination of guardianship or which regulates the removal of guardian from his duty. These are certain observations made by the judiciary in India that is to be noted every time there is a question of ending the guardianship. The author has listed down various observations to the best of his knowledge made by the different courts in India which are binding on other courts, but as the society is dynamic, there can be new suggestions to this list and there can also be various alterations to this list.

References

1. AIR 1982 SC 1276.
2. AIR 1983 Mad 9.
3. AIR 1985 Del 159.
4. AIR 1971 All 248.
5. AIR 1989 Cal 165.
6. 206 Pa. St. 64.
7. 91 Iowa 744.

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This article has been written by Diva Rai, 1st year student, Symbiosis Law School, Noida. In this article she discusses coercion and duress, unlawful detaining of property, compulsion of law, effect, causation and nature of threats.

Section 15 defines coercion as committing any act forbidden by The Indian Penal Code, 1860 or unlawful detaining of property, or threatening to commit these acts. Coercion invalidating a contract need not proceed from a party to the contract or be immediately directed against a person whom it is intended to cause to enter into the contract. It includes unlawful detention of property.

Coercion and Duress

Coercion under this Act is much wider than what was duress in the English law. It includes unlawful detention of property, may be committed by any person not necessarily a party to the contract, and may be directed against any person, even a stranger, and unlike duress, causing of immediate violence or unnerving a person of ordinary firmness of mind are not necessary under the Indian law.

Act Forbidden by the Penal Code

The words act forbidden by the Indian Penal Code, make it necessary for the court to decide in a civil action, whether the alleged act of coercion is such as to amount to an offense. In Ammiraju v Seshamma, a question arose as to whether a release executes by a wife and son in consequence of a threat of committing suicide had been obtained by coercion within the meaning of this Section. Wallis CJ and Seshagiri Aiyar J answered the question in the affirmative, holding that the word forbidden was wider than the term punishable, and that though a threat to commit suicide was not punishable under The Indian Penal Code, 1860 it must be deemed to be forbidden, as an attempt to commit suicide was punishable under the Penal code (s 309).

Threat of Bringing Criminal Charges

The mere threat of bringing a criminal charge does not amount to coercion, as it is not per se forbidden by the Penal Code. But the threat of bringing a false charge with the object of making another do a thing was coercion, for although threatening another with criminal prosecution was not per se forbidden by it when the threat related to a false. In Kishan Lal Kalra v NDMC, the plaintiff had claimed that he had surrendered the possession of the disputed site not voluntarily but under a threat that if he did not so, then he would be arrested and detained under The Maintenance of Internal Security Act, 1971. It was held that the receipt obtained by the defendants was by exercising pressure, duress and coercion.

Under the language of the Section as it stands, a threat to commit an offense under any law other than The Indian Penal Code 1860, may not amount to coercion. Recognizing this, the Law Commission of India had recommended a wider expression to include penal laws other than the Indian Penal Code 1860. It has been held that an agreement to refer matters in dispute to arbitration entered into during the pendency and in fear of criminal proceedings could not be avoided on the ground of coercion, though the agreement may be void as opposed to public policy within the meaning of s 23. Refusal to withdraw a prosecution, unless a bond was executed for the amount due, was not covered by this Section, nor a threat of a strike.

A deed of retirement from partnership was challenged on the ground that it was obtained under threat/coercion and it was signed in a police station. It was held that this could only be regarded as a voidable contract, but since it was not avoided immediately and the retiring partner had also accepted the benefit as such, so the same was valid.

Unlawful Detaining of Property

Consent can be said to be caused by coercion if it is caused as a result of unlawful detainment of property, or threat to do so. A refusal on the part of a mortgagee to convey the equity of redemption except on certain terms is not an unlawful detaining or threatening to detain any property within the meaning of this Section. Where an agent, whose services were terminated, detained accounts to obtain his release, the release was induced by coercion. Where in order to realize fine due from a son, the government attached the property belonging both to him and his father, payment then made by the father in order to save the property from being sold was held to have been made under coercion.

To the Prejudice of any other Person- In Ammiraju v Seshamma, where the threat by a husband to commit suicide caused the wife to release the property, it was held that the wife was prejudiced. The possibility of the husband leaving the wife and the child uncared for was sufficient in the eye of law to furnish a ground of prejudice.

Proof of Coercion and Burden of Proof

The defendant relying on the defense of coercion should set out all the facts constituting these invalidating circumstances. A suspicion or mere probability is not sufficient to support a plea of coercion. In a contract made between parties where duress was not the sole reason for entering into a contract, there is no burden on the party threatened to show that but for threat, no agreement would have been made. Such an agreement was void (under the English law) unless the party who made the threats could show that the threats contributed nothing to the other party’s decisions to enter into a promise.

The burden of proof does not lie on the innocent party to show that but for the threats, no contracts would have been signed. It is for the party using the alleged threats to establish that the acts of alleged threats or unlawful pressure contributed nothing to the consent of the other party to the contract.

Power of the Court Under the Specific Relief Act 1963

Where the terms of the contract or the conduct of the parties at the time of the making of the contract, though not rendering the contract voidable, gave the plaintiff an unfair advantage over the defendant had entered into the contract under circumstances which make it inequitable to enforce specific performance.

Coercion under Section 72

The definition contained in this section is for the purpose of considering whether the consent to a contract was free under s 14. It does not govern the meaning of the term as used in s 72 of the Contract Act, where every kind of compulsion would be covered, even if it did not measure up to the definition under s 15.

Compulsion of Law

The compulsion of law is not coercion under this Section, and the contract is, in the eyes of the law, freely made. In Andhra Sugars v State of Andhra Pradesh is a case of the eligibility of the sales tax on ‘sale’ of sugar, the cane growers were not bound to accept it under the Andhra Pradesh Sugar Act 1961. This was held to be an agreement not caused by coercion, undue influence, fraud, misrepresentation or mistake. The contract was neither void nor voidable but was valid under s 10.

In Vishnu Agencies v Commercial Tax Officer, a question arose whether cement supplied under the orders of the Cement Control Act of West Bengal was a sale, and the court held that it was no less a contract because it lacked volition, or was made under compulsion. So long as mutual assent was not totally absent, it was a contract.

Under statutory regulations relating to the supply of sugarcane, sugar factories are compelled to enter into an agreement with the cane growers on various terms and conditions including the price fixed by the state known as State Advised Price. Although the price may not be to the liking of the sugar factory, yet s 15 is wholly inapplicable. It is well settled that even a compulsory sale does not lose the character of a sale. The state has regulatory power under the statute to fix the price of sugarcane. Such sales do not attract the element of coercion as defined under s 15.

The mere fact that the contract has to be entered into in conformity with and subject to restrictions imposed by law does not per se conformity with and subject to restrictions imposed by law does not per se impinge on the consensual elements in the contract. The compulsion of law is not coercion and despite such compulsion, in the eye of the law, the agreement is freely made.

Duress

Under the English law, actual or threatened violence to the victim’s person has long been recognized to amount to duress, but duress may consist of actual or threatened imprisonment as in Cumming v Ice, now also includes wrongful threats to property or threats to seize goods, and wrongful or illegitimate threats to his economic interests, where the victim has no practical alternative but to submit. In Lynch v DPP, Northern Ireland all five members of the House of Lords rejected the notion that duress deprives a person of his free choice, or makes his act non-voluntary.

Duress does not deprive the victim of all choice, it leaves him with a choice of evils. A person acting under it intends to do what he does but does so unwillingly. Duress deflects without destroying the will of one of the contracting parties. Though earlier cases have requires that the duress must negate true consent and render the victim’s actions non-voluntary, later cases have applied the test of whether the victim had a practical choice.

Effect on Contract

A contract obtained by means of duress exercised by one party over the other is at very least voidable and not void, but if it is voluntarily acted upon by the party entitled to avoid, it will become binding on him.

Causation

It is sufficient that a threat to the victim’s person was a reason for the victim entering into the contract, and it was not necessary for him to show that he would not have entered into the contract without the threat, and the other party could show that the threat had not influenced the victim. In Barton v Armstrong, there was a struggle for power between A and B over L Ltd. and A had threatened B on various occasions with death if L Ltd did not agree to pay a sum of money and purchase his shares. The evidence showed that B was frightened by those threats, but they had not influenced him in executing a deed on behalf of L Ltd. B sought a declaration that the deed was secured under duress and was void.

The Privy council held that if a person threatens another with unpleasant consequences and if the other does not act in a particular manner, he must take the risk that the impact of his threat may be accentuated by extraneous circumstances for which he is not, in fact, responsible. They further held that A’s threats may have been unnecessary, but it would be unrealistic to hold that they played no part in making B decide to execute the documents even if A had made no threats and exerted no unlawful pressure to induce him to do so, the threats and unlawful pressure, in fact, contributed to b’s decision to sign the documents and recommend their execution. The Privy Council made the declaration that the deeds in question were executed by B under duress and were void so far as the rights or obligations inter se of the parties to the deed were concerned.

Nature of Threats

Not all threats are improper or illegitimate. A threat to commit a crime or tort is improper. A threat to break a contract may not amount to duress on the ground simply that the victim was influenced by the threatened action. Something more than commercial pressure is required. A threat to prosecute would be lawful if the charge is known to be false, and the false, and the threat is for an improper motive, but a threat to institute civil proceedings cannot amount to duress.

A threat to carry out something within one’s rights is not duress unless coupled with unreasonable demands. It has been observed in CTN Cash & Carry Ltd v Gallaher Ltd, that though in certain circumstances, a threat to perform a lawful act coupled with a demand for payment may amount to economic duress, extending such duress in commercial context would have far-reaching implications, and would introduce a substantial and undesirable element of uncertainty in the commercial bargaining process, in the sense that it would enable bona fide settled accounts to be reopened when parties to commercial dealings fell out.

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This article has been written by Diva Rai, 1st year student, Symbiosis Law School, Noida. In this article she discusses Section 21 of the Indian Contract Act.

Introduction

There may be two kinds of mistake- mistake of law, and mistake of fact. The exact demarcation between law error and factual error is often blurred and hard to determine. For example, the position is even less clear where the parties have to act on the interpretation of private written document rather than an enactment or statutory regulation. Illustration- building a written contract is considered a matter of law, the erroneous construction of a will has also been treated as a matter of law. A mistake of law may be of ordinary law, foreign law or of private rights.

A contract is not voidable because it was caused by a mistake as to any law in force in India, but a mistake as to a law not in force in India has the same effect as a mistake of fact. Section 21 provides that a mistake of law in force in India does not make a contract voidable, but a mistake of foreign law is to be treated as a mistake of fact. Illustration– A and B make a contract grounded on the erroneous belief that a particular debt is barred by the Indian Law of Limitation, then the contract will not be voidable.

Principle

The general language of this Section represents the current doctrine at the time when the contract Act was made, namely, that relief is not given against the mistake of law. A person cannot go back upon what he has deliberately done or excuse himself from liability of wrongful act or offense, merely because he alleges that he acted under a misrepresentation of law. It is his business to know, by taking professional advice or otherwise, so much law as concerns him for the matter he is transacting. No other general rule is possible, without offering enormous temptations to fraud. But this doctrine in question is not without rather large qualifications. A mistake of law does not universally or generally invalidate transactions in which it occurs.

On the other hand, the UNIDROIT Principles equate a mistake of fact with that of law. This is justified on the ground of the increasing complexity of modern legal systems, especially when in cross-border trade, a number of legal systems may be involved. Under the Principle, mistake is an erroneous assumption relating to facts or to law existing when the contract was concluded.

Mistake as to Law

In AM Appavoo Chettiar v SI Rly Co [1], while mistake was as to the general law is no law for relief, it was stated, “ if the mistake of law is such a kins that it is mixed up with certain facts relating to a particular individual…that…a combined effect of a party’s view of the law and facts, he made a mistake at the time of entering the transaction as to the nature of his pre-existing private right, it may be said that such a mistake is not a pure mistake of law”.

The existence of particular private rights is a matter of fact, though depending on rules of law, and for most civil purposes, ignorance of civil rights- a man’s ignorance that he is heir to such and such property, for instance, is ignorance of fact. In Cooper v Phibbs [2], it was seen that a man’s promise to buy that which, unknown to him, already belongs to him is not be made binding by calling his error as to the ownership a mistake of law.

Applying the principle of this Section, where a mortgage bond provided that if the mortgagor failed to redeem the mortgaged property within eight years, the mortgagee should be the owner of the property, and the mortgagor is unable to redeem, executed an absolute transfer of the property to the mortgagor of the equity of redemption subsequent to the date of the transfer was not entitled to redeem. Even though the mortgagor might have been ignorant of his right to redeem the mortgage, notwithstanding the clause in the mortgage precluding him from doing so. This was held in Vishnu Sakharam Phatak v Kashinath Bapu Shankar [3].

An erroneous belief that the widow forfeits upon remarriage the rights of an occupancy tenant under the NWP Tenancy Act, to which she has succeeded on the death of her first husband as his heir, is a mistake of law. This was held in Sabihan Bibi v Madho Lal [4], and a contract grounded on such belief was held not voidable, though the mistake may be common to both parties. In Ghanshyam Bholaram Tamoli v Girija Shankar [5], the erroneous belief that the tribunal under a Debt Conciliation Act had jurisdiction over a non-agriculturist was held to be a mistake of law.

The Privy Council held in Seth Gokul Das Gopal Das v Murli and Zalim [6], that an erroneous belief that a judgment-debtor was bound by law to pay interest on the decretal amount, though no interest has been awarded by the decree, was a mistake of law; it was not a belief as to a matter of fact essential  to the agreement within the meaning of s 20. That such a mistake is not a mistake of fact, but one of law is abundantly clear from this case. The Lordship stated, “There was, no doubt, a mistake of law on the part of the defendants is supposing that execution could be issued for interest upon the amount decreed from the date of decree to the date of realization, no such interest having been common not only to the plaintiff and the defendant but also to the Court which made the order of attachment”.

In Ram Patti Devi v Board of Revenue [7], it was stated that if the law does not permit the alienation of sirdari interest, the same cannot be permitted merely because the alienation was under a mistake of law and the purchaser had paid full value for such interest under that mistake. Misrepresentation, especially willful misrepresentation, of a matter of law, may be ground for avoiding a contract under subsection 17 or 18.

Mistake of Fact

Failure to do so is a ground for avoidance in contract law. However, it should be added that the court has never clearly defined the distinction between factual errors and law errors. Illustration- A agrees to buy from B a certain horse. It turns out that the horse was dead at the time of the bargain, though neither party was aware of the fact. The agreement is void.

In Waugh v Bussell, where a written contract contained a mistake apparent on its facts namely “one pound” for “one hundred pounds” the contract was construed in accordance with the real intention. Such cases are dealt with by courts by rectifying or reforming the contract so as to express the true intention and where this is not possible by directing the cancellation of the contract.

A common error is used to refer to cases where the parties are genuinely agreed but mistaken as to some fundamental facts relating to the agreement, for example where the parties are unaware that there was no subject of their agreement. Traditionally, such errors are referred to as mutual error. That apart from the term common error may refer to the frequent occurrence of the error rather than the fact that it affects both parties to the agreement. In such a case, perhaps the term’ bilateral’ might be more appropriate.

In State Industrial & Investment Corporation of Maharashtra Ltd v Narang Hotels (P) Ltd. [8], the State Industrial and Investment Corporation of Maharashtra entered into a contract with the defendant to grant subsidies for the establishment of a hotel project under the Central Industrial Subsidy Scheme and advanced a sum of Rs. 6,59,700/-. The plaintiff corporation subsequently sought to cover the same with the interest on the ground that the defendant and the plaintiff committed an error of law in interpreting the Central Subsidy Scheme and assumed that the hotel industry was an Industrial Unit. The court held that there could be at least two views on interpretation and roof burden on the complainant to prove they made payments as a result of an error. Since the burden was discharged, the complainant was unable to seek a refund or refuse to pay the balance.

Mistake as to Foreign Law

As regards the second clause of the section, Indian jurisprudence has adopted the rule of the common law that foreign law is a matter of fact, and must be proved or admitted as such, though the strictness of the rule about proof has been somewhat relaxed by the Indian Evidence Act, 1872. Accordingly, the statement of finding of any foreign law on which the court proceeds in a given case is no more binding on the court in any future case, even apart from the possibility of alteration in the law in question, than any other determination or assumption as to matters of fact.

Relationship of Contract

In Pravin s/o Jethalal Kamdar v State of Maharashtra [9], the plaintiff sold the property to the government after permission was denied to him under s 27(1), of the Urban Land (Ceiling and Regulation) Act 1976, to sell the same to a prospective purchaser. The Supreme Court later struck down this section in Bhim Singhji v Union of India [10]. The plaintiff thereafter sought repossession of the said property. The government alleged inter alia that the sale being effected under a mistake of law, was not affected. It was held that s 21 would not apply, because, although the sale was effected, it was done under compulsion, and in pursuance of the pre-emptive right enjoyed by the government under that Act.

Sections 21 and 72

Section 72 enables a refund of monies paid under a mistake, including a mistake of law. But where a contract is the result of mistake of law of both parties, any sum of money paid under the contract falls under s 21 and not s 72. In Dhanya Lakshmi Rice Mills v Commissioner of Civil Supplies [11], the petitioner had paid monies to the government as administrative charges for obtaining permits, of which it claimed a refund under s 72 of the Contract Act, pleading mistake of law. While refusing relief, the Supreme Court stated, “if a party under mistake of law pays to another money which is not due under a contract or otherwise, that is to be paid. When there is a clear and unambiguous rule of law which entitles a party to the relief claimed by him, equitable considerations cannot be imported. A contract entered into under a mistake of law of both parties falls under s 21 and not s 72. If a mistake of law had led to the formation of a contract, s 21 enacts that the contract is not for that reason, voidable. If money is paid under that contract it cannot be said that the money was paid under a mistake of law, it was paid because it was due under a valid contract, and if it not been paid, payment could have been enforced.”

Thus, there is no conflict between s 72 on the one hand and ss 21 and 22 on the other. A contract made under a mistake of law of parties falls under s 21 and not under s 72 of the Contract Act and s 72 deals with cases where money is paid by a mistake or under coercion. A contract giving a person the right to pluck and gather kendu leaves was not void on the ground that there was a mutual mistake as to the law by which the tenants have the right to gather the leaves and sell to whomsoever they pleased, and this law was known to both sides. This governed by s 21 and not by s 72.

Performance of Subject Matter

The performance of the subject matter can be classified as two types. They are:

Physical Impossibility: When the subject matter is destroyed the contract becomes impossible to perform and it amounts to the physical impossibility of performance and the contract is void.

Legal Impossibility: When a war like situation arises between two trading countries then it becomes legally impossible for the countries to perform the contract and it becomes void.

References

1. AIR 1929 Mad 177.
2. [1861-73] All ER Rep 2109.
3. (1887-88) ILR 11-12 Bom. 115.
4. (1907) All WN 197.
5. AIR 1944 Nag 247.
6. (1878) ILR 3 Cal 603
7. AIR 1973 All 288
8. AIR 1995 Bom 275
9. AIR 1996 Bom 280
10. 1985 AIR 1650
11. 1976 AIR 2243

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This article has been written by Diva Rai, 1st year student, Symbiosis Law School, Noida. In this article she discusses Section 17 of the Indian Contract Act, which defines fraud in contracts.

Definition of Fraud

Fraud implies and involves any of the following acts committed by a contracting party or his connivance or his agent with the intention of deceiving or inciting another party or his agent to enter into the agreement.

• The suggestion, as a fact, of that which is not true by one who does not believe it to be true.
• The active concealment of a fact by one having knowledge or belief of the fact.
• A promise made without any intention of performing it.
• Any other act fitted to deceive.
• Any such act or omission as the law specially declares to be fraudulent.

Mere silence as to facts likely to affect the willingness of a person to enter into a contract is not fraud, unless the circumstance of the case is such that, regard being had to them, it is the duty of the person keeping silence to speak, or unless his silence, in itself is, equivalent to speech. Illustration–  A sells by auction to B a horse, which A knows to be unsound, A says nothing to B about the horse’s unsoundness. This is not fraud in A.

Section 17 describes fraud and lists the acts that amount to fraud, which are a false claim, active concealment, promise without the intention of carrying it out, any other deceptive act, or any act declared fraudulent. To constitute fraud, the contracting party, or any other individual with his connivance, or his agent, or to induce him to enter into the agreement, should have performed such acts. The parties have no duty to speak about facts likely to affect the consent of the other party to the contract, and mere silence does not amount to fraud unless the circumstance of the case shows that there is a duty to speak or silence equivalent to speech.

Fraud and Misrepresentation

The main difference between fraud and misrepresentation is that in the first case the person making the suggestion does not believe it is true and in the other case he believes it is true, although in both cases it is a misrepresentation of fact that misleads the promisee. This was held in Rattan Lal Ahluwalia v Jai Janider Parshad. Under common law, fraud will not only render the contract voidable at the option of the party whose consent is so obtained but will also give rise to an action for damages in respect of deceit.

If a decree is found to have been obtained by fraud, an application moved, even belatedly, would be maintainable. The court has inherent jurisdiction to grant relief on such an application and even principles or res judicata would not apply. Fraud is a conduct either by letter or words, which includes the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letter. Indeed, innocent misrepresentation may also give reason to claim relief against fraud.

Ingredients of Section 17

When analysed s 17(1) shows the following ingredients:

1. There should be a suggestion as to a fact;
2. The fact suggested should not be true;
3. The suggestion should have been made by a person who does not believe it to be true; and
4. The suggestion should be made with intent either to deceive or to induce the other party to enter into the contract.

Representation

A representation is a statement of fact, past or present and is distinct from an opinion statement, although a statement of opinion may be considered as a statement of fact in certain circumstances. The fraudulent misrepresentation must be material in order to allow the representative to prevent the agreement, i.e. such that it would have affected a reasonable man in choosing whether to enter into the agreement or not. In Lillykutty v Scrutiny Committee, a false certificate was obtained in order to take unfair advantage. It was held that fraud vitiates every solemn act. Fraudulent acts are not encouraged by the courts. Any action by the authorities or by the people claiming a right/privilege under the Constitution of India which subverts the constitutional purpose must be treated as a fraud on the Constitution.

False Assertion without Belief in its Truth

To prove a case of fraud, it must be proved that representations made were false to the knowledge of the party making them. The statement must be false in substance and in fact. Positive knowledge of falsehood is not a criterion. In order to constitute fraud, it is necessary that the statement was made by the person concerned with knowledge of its falsehood, or without belief in its truth. Even mere ignorance as to the truth or falsehood of material assertion, which, however, turns out to be untrue, is deemed equivalent to the knowledge of its untruth, as also where the representor suspected that his statement might be inaccurate, or that he neglected to inquire into its accuracy. In Jewson & Sons Ltd v Arcos Ltd, giving a false impression and inducing a person to act upon it, was considered fraud, even if each fact taken by itself would be literally true.

Reckless Statements

Proof of absence of actual and honest belief is all that is necessary to satisfy the existence of fraud, whether the representation is made recklessly or deliberately; indifference or recklessness on the part of the representor as to truth or falsity of the representation affords merely an instance of absence of such belief. Statements made without belief in the truth would include statements made recklessly. Misrepresentation as to title made by vendors recklessly or with gross negligence cannot escape the charge of fraudulent misrepresentation.

Ambiguous Statements

Where the representer makes an ambiguous statement, the person to whom it is made must prove that he understood that statement in the sense that it was in fact false. The representor will be guilty of fraud if he intended the statement to be understood in that sense, and not if he honestly believes it to be true, but the person relying on it understands it in a different sense. Once it is held that the representation was fraudulent under this clause, the exception in s 19 is of no avail, and the question whether the person alleging fraud had or had not the means of discovering the truth with ordinary diligence, is immaterial.

Active Concealment

Mere non-disclosure of some immaterial fact s would not per se five a right to recission unless it is further found that the consent has been secured by practicing some deception. Where the seller sold property already sold by him to a third person, his conduct amounted to active concealment and fraud, and the buyer could recover the price despite the agreement that the seller could not be responsible for a defect in title.

Promise without Intention of performing it

Making a promise without the intention of performing it is fraud, though not so under the English law. To bring the case within this clause, it must be shown that the promisor had no intention of performing the promise at the time of making it, and any subsequent conduct or representation is not considered for this purpose.

Silence as Fraud

Silence about fats is not fraud per se. Unless there is a obligation to talk or if it is equal to expression, mere silence is not fraud. This rule has two skills. First, suppressing portion of the known facts may mislead the assertion of the remainder, although literally true as far as it goes. In such a case, the declaration is substantially incorrect, and fraudulent is the willing rejection that makes it so. Secondly, commercial use may impose a obligation to disclose specific flaws in products sold or the like. In such a situation, failure to mention such a defect is equal to an statement that there is no such defect.

Duty to Speak

There is no general duty to disclose facts that are or might be equally within the means of knowledge of both parties. In Bell v Lever Bros, the company agreed to pay large compensation to two employees, the subsidiary company directors, whose services were being dispensed with. After paying the money, the company discovered that the directors had committed breaches of duty, which would have justified their dismissal without compensation. The House of Lords held that the directors had not these breaches in mind, and were under no duty to disclose them.

No Fraud

If the party alleging fraud had the facts before it or had the means to know them, it could not be said to have been defrauded, even if a false statement has been made. Further, a contract cannot be merely on a trivial and inconsequential mis-statement or non-disclosure. In Janakiamma v Raveendra Menon, where the plaintiff was aware of the contents of the Will of her father, the partition of property on the death of the father and mother was not set aside on the ground of fraud of not disclosing the contents of the Will; and no fresh partition was ordered.

Evidence and Burden of Proof

In a great majority of cases, fraud is not capable of being established by positive and tangible proof. It is by its very nature secret in its movements. It is, therefore sufficient if the evidence given is such as ay lead to interference that fraud must have been committed. In most cases, circumstantial evidence is the only resource in dealing with questions of fraud. If this were not allowed, the ends of justice would be constantly, if not invariably, defeated. At the same time, the interference of fraud is to be drawn only upon an intentional wrongdoer. Being a restitutionary remedy, all actual losses flowing from fraud are recoverable, even if they could not have been reasonably foreseen; subject to the rule of mitigation by the defrauded party. Nor would the damages be reduced on account of contributory negligence.

Effect of Fraud

A contract, consent to which is obtained by fraud, is voidable under s 19. The party deceived has the option to affirm the contract and insist that he be put in the position in which he would have been if the representations were true, or he may rescind the contract to the extent it is not performed. Upon rescission, he is liable to restore the benefit received by him under s 64 and may recover damages. The measure of damages recoverable is essentially that applicable to the tort deceit, ie, all the actual loss directly flowing from the transaction included by the fraud, including the heads of consequential loss, and not merely the loss which was reasonably foreseeable. Where a document, which was intended to be in favor of a particular person but, as a result of fraud of the defendant, conveyed to someone else, the transaction would be also voidable under s 19.

Damages for Fraud

Where a contract is induced by fraud, the representee is entitled to claim rescission, or damages or both. He would have a remedy by way of such suit, even if restitutio in integrum is not possible as in Indranath Banerjee v Rooke. In Firbank’s Executors v Humphreys, the damages for fraudulent misrepresentation, under the general rule, were arrived at by considering the difference in the position the plaintiff would have been in, had the representation been true and in the position he is actually in, in consequence of it’s being true.

The principles applicable in asserting damages for fraudulent misrepresentation have been stated by Lord Browne-Wilkinson in Smith New Court Ltd v Scrimgeour Vickers (Asset Management) Ltd:

• The defendant is bound to make reparation for all the damage directly flowing from the transaction;
• Although such damage not have been foreseeable it must have been directly caused by the transaction;
• In assessing search damage, the plaintiff is entitled to recover by way of damages the full prize faced by him, but he must give credit for any benefits which he has received as a result of the transaction;
• As a general rule, the benefits received by him into the market value of the property acquired at the date of the transaction, but the general rule is not to be inflexible applied where to do so would prevent him from obtaining full compensation for the wrong suffered;
• The plaintiff is entitled to recover consequential losses caused by the transaction;
• The plaintiff must take all reasonable steps to mitigate the loss once he has discovered the fraud.

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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 institution of suit by or against the government or public officers. In addition to this, the article provides an analysis of numerous subtopics associated with Section 79, Section 80 and Order 27 of Civil Procedure Code.

Abstract

Under the Civil Procedure Code, the subject of suits by or against public officers in their official capacity has been recognized under Section 79, Section 80 and Order 27 of CPC. Firstly, it should be understood that Section 79 of CPC is a procedural provision and hence, it does not deal with rights and liabilities enforceable by or against the government [1]. But at the same time, it declares a mode of the procedure when the cause of action arises. On the other hand, Section-80 of CPC is not a procedural provision but a substantive one [2], the rules involved in it and working of Section 80 will be discussed further. Lastly, Order 27, includes under its ambit various rules and subjects like that of recognized agents, attorney general and the procedure to be followed while the suit is being filed by or against the government or public officers in their official capacity. This article tries to analyze the three sections in detail and provide an overview of the same in a clear-cut way.

Analysis

Section 79 and 80 are defined as follows under the Procedure of Civil Code-

Section 79- This Section defines the concept of suits by or against the government: Whenever a case is filed against a government or if it is filed by the government, the plaintiff and the defendant who will be named in the case will be as provided under:

• Whenever the case is instituted by or against the central government, the Union of India will be represented as the required plaintiff or defendant respectively.
• Whenever the suit is filed by or against the state government, the state government will be required to act as the plaintiff or the defendant.

Section 80- This section deals with the concept of Notice. According to this Section, there exists no onus for the institution of a suit against the government without issuing a notice regarding the same, this includes the state of Jammu and Kashmir. With respect to institution of a suit against a public officer with respect to the act done by him in his official capacity, there is again a need for issuance of notice regarding the same. Further, the notice should be served two months prior to the institution of the suit and it should be made sure that such a notice was delivered or left at the office of:

• Whenever the case is against the central government, and it does not relate to the railways then, the notice should be delivered to the secretary of the government.
• Whenever a case has been instituted against the central government and it relates to the railways then, the notice is to be served to the general manager of that railways.
• Whenever the case is instituted against any of the state governments then, the notice is to be served either to the secretary to that government or to the collector of the district.

Scope of Section 79

For the purpose of better understanding of Section 79 of Civil Procedure Code, there arises a need for further fragmentation of the Section into various subtopics like that of the jurisdiction of Section 79 and the institution of suit against the railways which will be looked into in the next part of this article.

Section 79

Section 79 lays down the procedure whereby the suits are brought by or against the government but at the same time, it does not deal with the rights and liabilities enforceable by or against the government body [3]. In the case of Jehangir v. Secretary of State [4], an important observation was made which was that this section gives no cause of action but only declares the mode of the procedure when the cause of action arises.

Jurisdiction

Under Section 79, only the court within whose local limits, the cause of action arose, has the jurisdiction to try the suit and otherwise it cannot. In the case of Dominion of India v. RCKC Nath & Co. [5], it was held that words like ‘dwell’ or ‘reside’ or ‘carry on business’ which are mentioned in Section 18, 19 and 20 of code, do not apply to the government [6].

Suit against Railway

If the railway is administered by the union of India or a State, then any suit to enforce a claim against railway administration can be brought against the Union of India or State, and this may not include making the railway administration a part of the suit. But on the other hand whenever there is a requirement for a suit for freight for carrying goods, then such a suit can be instituted by the Union of India, and this was held in the landmark case of Union of India v. RC Jall [7].

In the case of Secretary of State v. Rustom Khan [8], there was a significant observation made regarding the liability to be sued, under Section 79 of CPC. No suit could lie against the East India Company in respect of the act of state or acts of sovereignty, and therefore no suit in respect of such acts would be competent.

Section 80

This part of the article will include under its ambit the detailed analysis of Section 80 of Civil Procedure Code, and for the purpose of better understanding, the subtopics are to be studied by breaking them down under the Section of nature and liability, contents of the notice, effect of non-compliance and waiver of notice.

Nature and Object

The object laid down by this Section is- there should be an opportunity conferred on the part of the Secretary of the State or the Public officer to reconsider his legal position in order to make amends or settle down the claim if so advised. This can further be done without litigation or afford restitution or without recourse to court of law [9]. Whenever a statutory notice is issued to public authorizes, they are required to further take notice in all seriousness and they are not required to sit over it and force the citizen to the redundancy of litigation.

Contents of the Notice

Notice under Section 80, is required to contain the following aspects: name, description, residence of the plaintiff, the cause of action and lastly the relief which the plaintiff claims. Also, the notice is required to convey to its recipients, sufficient information to enable him to consider the claim, which was held in Union of India v. Shankar Stores [10]. The above-mentioned particulars should be given in such a way that, it enables the authorities to identify the person giving the notice.

Effect of Non-Compliance

Non-compliance with the requisites of this Section or any omission in the plaint which is required would result in the rejection of the plaint under Order 7, Rule 11.  If the suit is against a public official and a private individual, and no notice is served on the public officer, the plaint is not to be rejected but the suit is carried on with the name of the public officer struck off.

Waiver of Notice

As the requirement of the notice is just procedural and not substantive, and as it is for the benefit of the public officer or the government, it is open to government and public officers to waive it. If the defendant wants to rely on the invalidity of the notice, it is for him to raise a specific issue on the point, this was held in the case of Lalchand v. Union of India [11].

Order XXVII

1- Suits by or against the government- It should be noted that in any suit by or against the government, the plaint or the written statement should be signed by such a person, as the government by general or special order, appoint in this behalf. State of Rajasthan v. Jaipur Hosiery Mills [12], in this case, it was held that the sanction to sign must be prior to the institution, and if not complied with this, the signing shall be by an incompetent person, and further, issuing of a retrospective sanction will not preserve the defect.

Government pleader is an agent under the order 27 of CPC. The government pleader acts as an agent for receiving processes issued against the government. Also he is the only person to intimate the court that he is representing the government and no stamped power of attorney or vakalatnama is required for the same [13].

Lutfar Rahman v. State of West Bengal [14]. In the aforementioned case, it was held that when a person other than the government pleader wants to act as an agent, it is possible only when the government agent intimates the Court that the former is acting under his directions. Rule 5 of Order 27, has been discussed in the next segment of this article.

2- Attendance of person being able to answer the questions related to suits against the government- The court may, in any case where government pleader is not accompanied by person on the part of the government and if he is able to answer the questions relating to suit, the court may direct the attendance of that person [15].

Comments and Suggestions

The amendment made in Section 80 is seen as that of a significant one, as it has acted as an added advantage while dealing with the case, clause (2) and (3) were added to Section 80 by the amendment of 1976. Sub Clause (2) has been inserted to permit the institution of the suit without notice, but it must be accepted only after giving a reasonable opportunity of showing cause in respect of relief claimed [16]. Sub-section (3) on the other hand prohibits the dismissal of a suit where the notice has been served but suffers from certain technical deficiencies.

It should also be taken into consideration that there exist various instances where there were widespread abuse and misuse of the concerned section by the government and public officials in order to dispose of the litigation on the grounds of technicality, and this aspect of the provision should be given more attention in order to overcome the negative aspects which exist in it. Moreover, sub-section (3) was included in the Section in order to offer a better clarification that no suit against the government or a public officer can be dismissed merely on the grounds of existence of defect or error in the notice.

Conclusion

Hence, all the three provisions which bring to light the various procedures and rules involved in the suit by or against the government or a public officer have been discussed and analyzed in detail. It can be said that the applicability of these sections must be determined by the law as it stands [17]. Further, if the procedure lay down by the rule in these sections is not followed, then the court is to proceed with the footing that there is no appearance of government pleader on behalf of the public officer. And lastly, the rules laid down in Order 27 are to be strictly abided by while filing a suit.

In addition to all the above-mentioned aspects, the sections regarding suits by or against the government and public officers also specify the procedure to be followed while filing of a writ and also what steps to be taken when there is permanent suit on appeal or if there is a revision.

There is also mention of the nature and applicability of Section 80 of the civil procedure code, and this section drags its attention towards the matter whether the serving of notice is a mere formality or is it a mandatory aspect under the section. Lastly, the section also deals with the aspect of what acts come under the arena of official capacity.

References

1. Ankit Vardhan, Suits by or against Government (Section 79 – 82 CPC), Legal Bites – Law and Beyond (August 2, 2017, 12: 10 PM), https://www.legalbites.in/suits-by-or-against-government-section-79-82/.
2. Namrata Shah, SECTION 79, 80 OF CODE OF CIVIL PROCEDURE 1908, Aaptaxlaw  (JUNE 7, 2016, 11: 30 AM), http://www.aaptaxlaw.com/code-of-civil-procedure/section-79-80-code-of-civil-procedure-suits-by-or-against-government-notice-section-79-80-of-cpc-1908-code-of-civil-procedure.html.
3. AIR 1930 All 225 (FB)
4. (1903) ILR 27 Bom 189.
5. AIR 1950 Cal 207.
6. Devika, Section 79 CPC detailed, The SCC Online Blog (October 5, 2018, 10: 10 AM), https://blog.scconline.com/post/2018/10/05/order-27-rule-5-cpc-mandates-the-court-to-ensure-disputes-concerning-public-undertakings-are-resolved-amicably-arbitrator-appointed-therefor-sc/.
7. AIR 1958 MP 425.
8. 68 IA109 AIR 1941 PC 64.
9. Adarsh Gill, Code of Civil Procedure 1908 section 80,  LegalCrystal (MAR 03, 2011, 2:45 PM), https://www.legalcrystal.com/cases/search/name:code-of-civil-procedure-1908-section-79.
10. AIR 1974 Ori 85.
11. AIR 1960 Cal 270.
12. AIR 1997 Raj 10.
13. Mulla, Code of Civil Procedure (Abridged) 390-406 (ed 523)
14. AIR 1954 Cal 455.
15. AIR 1980 P&H 318.
16. 3 Justice M.L. Singhal, Suranjan Chakraverti, Bholeshwar Nath,  Civil Procedure Code 412-35 (ed 347.05).
17. 7 C.K Takwani, Civil Procedure with limitation Act, 1963 426-37 (ed 347.05)

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This article is written by Namrata Kandankovi, student of Symbiosis Law School Pune. The author of this article has discussed in brief, various aspects regarding joint tortfeasors, modification of law with respect to joint tortfeasor and applicability of the law of torts.

Definition

When a tort is committed by several persons, all the persons involved in it become joint tortfeasor. In addition to this, all persons will be responsible for the same tort and will be deemed to be joint wrongdoers in the eyes of law.

Now, at this point, it becomes important for one to understand that in order to establish the wrong committed by joint tortfeasors, there must be some connection between the act of one alleged tortfeasor to that of the other.

Sargent L.J words regarding this can be quoted as follows – “There must be a concurrence in the act or acts causing damage, and not merely a coincidence of separate acts, which, by their conjoined effect, cause damage.”

For Example– In Palghat Coimbatore Transport Co. V. Narayana– There was a collision between two buses which resulted in the death of one of the passengers, further in a suit filed by the representatives of the deceased under Fatal Accidents Act, it was held that the owners of both the bus companies would be liable.

With regard to joint tortfeasors, the following three prepositions can be taken into consideration-

Circumstances under which joint liability arises

Agency- The concept of agency provides that, whenever one person employes, authorises or procures another person to commit a tort, the law takes into account the wrong of both of them and eventually, both the principal and the agent become jointly and individually responsible for the actions of the agent.

Arneil v. Paterson – In the aforementioned case, two dogs at a concert which belonged to different owners, attacked a flock of sheep and injured many of them. When a suit was brought against the owners of the dogs, one of them put forth a claim that he would be liable only for one-half. But it was finally held that both the owners will be liable for the whole damage, as each of the dogs occasioned the whole of the damage.

Vicarious liability- Vicarious liability is a concept in law, whereby, the liability is assigned on a person who did not commit the wrong but has a superior legal relation with the person who actually committed the wrong. The situations of vicarious liability mostly arise in case of employee and employer relations. In the case of vicarious liability, both, the person who commits a tort and the person vicariously liable for the wrong are deemed to be joint tortfeasors.

Joint or common action- In the law of torts two or more persons are said to be joint tortfeasors if they act jointly in the tort or a same suit of action is followed if one defendant has incited another to commit the tort.

There are two principles involved in joint or common action which will be discussed under

Accessory Liability– In the context of English common law, liability for participating in another’s tort is considered to be a form of joint liability, but at the same time, it is ambiguous whether procurement is a concept which is different from that of a common design or if it is a subset of it. Considering it on a whole it can be concluded that the law favours procurement as a subset of law rather than taking it as a form of common design.

In support of this, a judgment was given in the case of  CBS Songs Ltd v Amstrad Consumer Electronics plc whereby it was held that procurer is a joint tortfeasor only if he shares the design of the primary tortfeasor.

Tort of Common Design–  In the case of Fish & Fish Ltd v Sea Shepherd UK, it was taken into account that in order to establish accessory liability on a person, two elements are necessary to be proved, which are, one- the defendant acted in a particular way and this was the reason which led to the occurrence of the tort by the main actor. Two, the main actor would have further done so in pursuance of a joint plan or “Common Design”. There is no established test for determining the common liability and it varies from one case to another depending upon the facts and circumstances of the case.

The nature of joint tortfeasor’s liability

There are various circumstances involved when it comes to liability of joint tortfeasors:

1. The nature of liability of joint tortfeasor always acts in the advantage of the plaintiff or the injured party and lays down numerous provisions by the way of which justice can be served to the plaintiff. It is always at the discretion of the injured party or the plaintiff to either sue one of the many joint tortfeasors for the whole damage caused to him or to make all the tortfeasors liable for all the damage incurred by him.
2. Defendants who are jointly liable for a tort have an inherent liability on them up to the full amount of the judgment awarded to the plaintiff. A successful plaintiff, on the other hand, has an option of either collect the entire amount from one defendant or to take it from all of them collectively. Illustration- If there are two defendants A and B, and in an aforesaid suit against them, Defendant A is found to be at 60% fault and defendant B is found to be at 40% fault. Now if C is the plaintiff in this case, C has the discretion to either collect the entire amount from A or B or to collect the amount in regard to each person’s liability.
3. The second aspect dealing with the nature of liability of tortfeasors throws light on the release of tortfeasors. It formulates that the release of one tortfeasor would result in the release of all tortfeasors. The reason behind such nature of liability is the “Cause of Action”. The cause of action in torts is always one and indivisible, and release of one person from that cause of action results in the release of all joint tortfeasors who were held liable. Furthermore, the intention of the parties has no role to play in the release of the tortfeasors. Further, a mere agreement to not to sue a particular wrongdoer has a completely different perspective and can be variedly different from the release of the tortfeasors.
4. The third aspect draws the attention of the plaintiff or the injured party towards the bar placed on him in regard to the “Future Course of Action”. Put in simple terms, the third aspect can be explained as follows – When a judgment is passed or obtained against one or more tortfeasors, it would place a bar on the injured party to further initiate any suit against any particular tortfeasor or all of the tortfeasors collectively.
5. However, this was the situation earlier, the recent developments in the area of joint tortfeasor have come up with a view that judgment obtained against one tortfeasor is no bar to initiate an action against another tortfeasor for the same cause of action. But at the same time, it is a well-established principle that the sum recoverable through the way of damages cannot exceed the amount of damages which was awarded by the first judgment. This particular modification in the law of torts was brought by The Law Reform (Married Women and Tortfeasors) Act 1935.
6. One of the loopholes involved in the case of joint tortfeasor is that it can make a defendant end up paying damages which are disproportionate to his liability in the suit. Such instances come to light in case of insured and uninsured defendants. If any one of the defendants in the suit has a deeper pocket or larger insurance policy then he may be under an obligation to pay most of the damages even when he was not a primary defendant.

Contribution between joint tortfeasors

This section of the article would carry forth the discussion on the loophole involved in the liability between the joint tortfeasor, whereby one of the defendants may be forced to pay the whole share, even if he has a secondary involvement in the tort.

1. The concept of contribution between the joint tortfeasor lays down that a tortfeasor who is forced to pay the disproportionate amount to the injured party has no right to claim such a share from other or other parties.
2. This particular principle is based on the maxim ‘Ex Turpi Causa Non Oritur Actio’, this maxim lays down that, No action arises from an illegal cause. More detailed meaning of the maxim can be quoted in the following manner- A person who suffers damage at the hands of another, but in addition, he himself has acted in an unconscionable manner should be deprived of any remedy which the law would have otherwise provided.
3. In an English case, Everet v. Williams – Where the plaintiff and the defendants were partners in highway robbing and by the way of it collected 2000 pounds, and then when the plaintiff filed a suit for the share of the sum, the court dismissed the suit on the grounds of it being Scandalous and Impertinent.     

Merryweather v. Nixon

1. This was a landmark where it was laid down that, in common law, a wrongdoer cannot maintain an action for contribution against another wrongdoer, even when the one seeking contribution would have satisfied the full claim of damages. And this rule is popularly known as Merryweather v. Nixon Rule.
2. The facts of this case involved the following – M and N conjointly destroyed the machinery which belonged to R, eventually, R brought an action against both and obtained a claim of 840 pounds by way of the judgment delivered in his favour. The whole amount was levied on M, who again sought contribution from N for half of the amount by filing a suit against him. The court laid down that M could not recover.
3. The rule of Merryweather v. Nixon existed and had wide applicability but it existed with several exceptions to it and these exceptions will be discussed in detail in the forthcoming segment of the article.

Exceptions to the rule in Merryweather v. Nixon with regard to contribution between wrong-doers

The application of the well-established rule was later limited to the course of time where the cases specifically revealed willful and conscious wrongdoing by the defendant, and the exceptions regarding this rule are listed as under:

1. The rule was not applicable in cases which involved negligence or where there was an unintentional breach of law.
2. Not applicable in cases of Indemnity, where one man employed another to do certain acts, provided the acts were not unlawful in themselves by the way of their existence, for the purpose of asserting a right.
3. Not applicable where there exists a right of contribution between the directors or promoters of a company who are jointly liable for the misrepresentation contained in the prospectus.  This aspect is covered under section 62 of Companies Act 1956.
4. Taking into consideration admiralty action in case of collision, it can be said that, whenever such actions are involved, the damage caused by a vessel by collision with another vessel will be borne equally by both the vessels.

Abolition of the rule in Merryweather v. Nixon

The case of Merryweather v. Nixon was decided by the King’s Bench in 1799 by Lord Kenyon, C. J. It was a Court of Common Law as distinct from a Court of Equity. But it later stood abolished by The Law Reform (Married Women and Tortfeasors) Act, 1935. This act provides for the following:

• In contrary to the previous law, the tortfeasor can now recover contribution from other tortfeasors who is also liable in respect of the same tort, it may be either jointly or otherwise.
• While recovering the amount from the tortfeasor, it is essential to make sure that the amount is just and equitable and in addition to this, it has a regard to the extent of the defendant’s liability to the aforesaid tort.
• The court has discretion in any given case to exempt a tortfeasor from the liability to contribute.

Whether the rule in Merryweather v. Nixon applies in India?

Prior to the abolition of the rule of Merryweather v. Nixon, the courts in India had a conflicting opinion regarding the applicability of the rule. There have been numerous cases where the rule of Merryweather v. Nixon was followed in India. It was freely applied by the courts where the parties knew or ought to have known that they were indulged in wrongdoing.

In contradiction to this, the High Courts of Allahabad, Calcutta and Nagpur had stringently held that the rule does not have any applicability in India. The rules laid down and followed by these courts was that a tortfeasor would have every right to recover compensation from the other joint tortfeasor who was also liable for the same tort.

Considering the present scenario, it can be said that the rule in Merryweather v. Nixon, which does not comply with Justice, Equity and Good Conscience, which was further abolished by the court of England and was rightly rejected from being applied in several courts in India.

Conclusion

The article has covered under its ambit, numerous concepts, case laws and provisions related to the concept of the joint tortfeasor. It showcases the rigid and reasonable use of tort law and through the way of which there can be justice served in the interest of the society. There have been changes and modifications brought in the tort law regarding the liability of joint tortfeasors, in order to make it come in line with the changes evolved in the society over the passage of time. Further, wherever there was wrong being done on the part of the defendant with regard disproportionate to claim of damages by the plaintiff in case of joint tortfeasors, such provisions have been keenly dealt with and there have been modifications made in order to serve and protect the interests of the defendants.

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