This is Written by Krishnendra Joshi, Research Associate, LawSikho with significant inputs from Ramanuj Mukherjee.

One is supposed to work under a good lawyer or at a good law firm to learn legal work after getting the law degree. What do you know when you just graduate? It is hard to tell a hole in the ground from your mouth when you just graduate from a law school, thanks to great Indian legal education.

And still, there is a rare kind of people who manage to start a law firm or an independent practice right out of law school. They don’t bother to work with a senior or learn the craft while being employed under someone else and still succeed.

Who are these mythical creatures? How do they pull this off? Can you imagine yourself doing it? Let’s dive into this today.

Why would anyone want to start a law firm straight out of law school?

I remember I was interning at a law firm. My boss Adv. Nitin Bhati had done a masters in law from a prestigious college in London. He had a few publications to his credit and had an impressive CV with top-notch internships.

I asked him why didn’t he apply for jobs in the big law firms? He looked at me sipping his tea and smiled, “I am not cut out for working under someone else”.

He loved the fact that he was his own boss. He was a big fitness freak, so he enjoyed the fact that his job gave him the flexibility so he could go out for long marathon cycling sessions with his tribe at his will.

The fact that he enjoys the most is that he gets all the fruits of his labour at the end of the day.

A friend of mine used to dream of working in the big fancy law firms but after a couple of internships in the law firm of his dreams, he changed his mind. He got very uncomfortable with law firm culture, the cutthroat competition, the pressure on associates to put more billable hours and the power game that exists.

He then proceeded to work very hard and took as much pre-qualification experience as possible during internships and decided to start his own law firm with his own rules and office culture after he graduated from law school.

I interviewed half a dozen lawyers who started their own law firm (usually just a one person set up to start with, but a firm like, name and a vision that goes with it) and managed to do well within a few years. They all struggled, saw a lot of hard times, but they are happy and successful people a few years down the line.

What made them do this unusual thing – starting on their own right out of law school and never bothering to work under anyone else at all?

While some like the autonomy it brings to the table, others find it simply very difficult to work under anyone due to their personality traits. Some just find it unavoidable after bad experiences they suffer while working under others and decide that there is no other way to work with dignity apart from starting on their own. There is another set of people who have a clear vision during law school and love the entrepreneurial aspect that opening their own law firm entails.

The reason can vary quite a bit, but the most common thread has been an unusual appetite for risk, a very high level of self-esteem and a desire for maximum autonomy.

Does that ring a bell for you?

What are the pros and cons of starting on your own before working anywhere else?

Autonomy is an obvious pro for starting your own law firm. The luxury of going on a vacation without applying to the HR department for leave is something any independent professional would cherish in lieu of the hours of hard work and client meetings.

However, in reality, you may not get that option at all as you begin. You may be worried about your practice, trying to find work, doing low margin work in volumes for years before you go on any vacation.

One may also feel that they do not deserve a break as they are far from success. Success takes time, and lawyers who strike out on their own very early tend to over-work. Burn out is something they have to learn to deal with.

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With autonomy, comes massive responsibility. It can be soul crushing. You are the captain of your fate, and captains rarely sleep as the ocean is usually stormy in the early years. It takes backbreaking work, tremendous tenacity and immense courage to survive this.

Ananya Banerjee says that the need for excellence is much higher as the security of a paycheck is not available. That drives the young lawyers who started on their own to work much, much harder in many different directions. If they survive the grind, they definitely mature very fast compared to their peer who are still working for someone else.

It can be a driving force to building a successful litigation practice. if you are aware of the market and know the problems people are facing, you hustle and energy would be a tremendous USP compared to old, boring, imperious law firms that do not have as much skin in the game.

Autonomy also means rapid personal development and an amazing learning curve. Such lawyers also tend to innovate to compete with more established competitors. Young lawyers with passion, drive, energy can do a lot more when they have autonomy compared to lawyers caged by seniors.

However, law practice is better done by a group of people rather than a single person. It is just too much to handle. There is no one else to cover for you especially in the initial days. There is nobody to even get an adjournment or postpone a meeting if you fall sick.

As a young lawyer who started a law firm or independent practice, you are never off the hook when it comes to answering to your clients. You will probably be working even on a vacation if you are operating as a one-man army.

It can be tough to do deal with the financial uncertainty when you don’t have regular clients who pay you steadily and you don’t know where the rent is coming from next month. This is the flipside of being your own boss, and one of the most nerve-wracking experiences for a young professional.

Starting on your own gives you flexibility with regards to working hours. You set your own schedules and timelines. That is actually a major boon for a young lawyer if you can stay disciplined nonetheless.

How can you find your own clients when you are young and inexperienced?

Finding clients is the biggest challenge for young lawyers as grey hair is given more weight when it comes to attracting clients.

Clients equate grey hair with experience. No doubt experience brings clarity but it’s not a guarantee for getting the work done. No wonder, I have heard stories of young lawyers dyeing their hair grey or keeping their head bald to appear seasoned.

Sarvesh Giri, a lawyer based out of Mumbai, told us that his international clients only want to get quality work done, and for them age is just a number. However, it’s the Indian clients who are more concerned about your age than your calibre.

It’s not impossible to find work though. If a budding lawyer can plan well in his college days. He can very well achieve it. Take, for example, Sarvesh who did as many as 30 internships with international and Indian lawyers and potential clients during his college days in a span of 3 years.

He would volunteer for work, started freelancing, interned under a senior lawyer, learned the ropes all by himself. Later when he started his law practice, the professional relationships that he made during his internships helped him to land his clientele.

Another Delhi based lawyer stressed the importance of doing as many internships during your law school as possible if you are clear that you want to start your own law firm straight out of law school. He was a student of DU Law Centre evening batch, so he pursued internships during the day and maximised his time and professional development.

A few lawyers are a part of networks like ISKON, Toastmasters, BNI etc, and through such networks, they start getting referrals and start finding work in the initial days.

Some lawyers get referrals through school and college alumni networks too. For some, their relatives, family and friends refer them.

Getting referrals has more to do with your interpersonal skills rather than legal aptitude. For example, managing expectations well other than delivering quality work makes a big difference like explaining to them how the case is proceeding at every stage, replying to their emails or WhatsApp messages timely adds that extra zing in your relationships with your clients which can help you earn more referrals.

Here is a step by step guide you can use for marketing yourself to potential clients as a lawyer. Believe it or not, it is possible to find legal consulting work even while you are in college.

How are you going to build your brand and reputation?

Brand building is a continuous process. Your brand should reflect the value you generate. Making a website, writing research papers, blogging, organizing events, writing books and even teaching definitely helps you in the process.

There are lawyers like Jay Sayta who managed to tremendously well by starting our their own practice right out of law school thanks to their extremely well known blogs. The blog had put Sayta’s name on the map even before he graduated. That kind of branding really helps.

Doing pro bono work is another great way to build a brand. Senior lawyers call it enlightened self-interest. I know lawyers who deploy this strategy very effectively. For example, if you do pro bono work for poor people, the marginalised, helpless animals or even entrepreneurs who are not yet funded, you may not make money but you earn tremendous good will. Many people want to help you and promote you because they can see your work and they wish to promote you.

Very good ways to strengthen you blog will be to contribute your knowledge for free in the public domain, in the form of blogposts, videos, whatsapp circulations, and even free helplines or free events that educate your potential clientele.

Here is more about how to build your brand as a lawyer.

Should you specialize or do whatever comes your way?

There are two schools of thought here. Nitish Banka, a Delhi based lawyer took up consumer cases, to begin with. Taking up small civil matters definitely helps to boost your confidence. He accepted whatever came his way, which kept the lights on and him on his toes, helping to learn new things on every turn.

On another hand, Sushanth Samudrala, a technology lawyer who is passionate about technology, stressed on the fact that specialising ultimately should be your focus.

It helps to create your own niche and sets you apart from the growing crowd of lawyers. Someone specializing in shipping law, for example, will get known in a niche shipping industry rather quickly than say a civil lawyer taking up random, miscellaneous cases. It may be counterintuitive, but building a brand in a small, specific niche is easier as Jay Sayta’s success demonstrates.

However, be open to take whatever matter comes your way, because while you do not want to be known as the lawyer who takes whatever is in front of him, you can quietly take some to keep the rent money in your pocket. However, do not build your brand as a generalist lawyer, it does not help usually to do so.

To learn more about specialization, read this article by Ramanuj.

What are the other major challenges you will face?

Finding your first client can be challenging. Litigation is a jealous mistress. Money is hard to come by in the initial years. Even if getting one or two clients is not difficult, it is difficult to build a steady stream of clients and a predictable flow of revenue.

For Divyam Agrawal, a Delhi based lawyer, family support to set up his practice is his biggest safety net. Having a side hustle helps. I know a lawyer, who set up a small cafe in the same business centre in which he had his office to generate a stream of income for himself. A Nasik based lawyer arranges her own art exhibitions. These things definitely help. Building a law practice is a long term game. You need to survive in the game long enough, that’s most of the equation. If you last long enough, you will figure out the rest and things will begin to fall into place.

So focus, focus and focus more on survival and longevity of your practice.

The managing partner of a major Delhi law firm told me stories about how he used to organize parties for pocket money even after starting his law firm, as he struggled to find clients in those initial years. Another one told me how he used to had to ask his wife every time for money to buy petrol for his scooter. They now run law firms that employ in excess of 50 lawyers and have turnover upwards of 10 Cr.

So focus on surviving, whatever it takes. If you can keep the candles burning at your law practice by doing a side hustle for a few hours every week initially, it is totally worth it. Just be careful that you do not get totally distracted.

Try and see if you can help more established lawyers with some of their caseload or matter, without becoming attached to their chambers or law firms.

Being a lawyer can be a demanding and stressful career, especially when you strike out on your own so early. It’s good if you have any alternative ways to fetch you money without demanding too much attention in the initial years to support your main ambition.

You will also face it challenging to keep training and upgrading yourself constantly. Lawyering is a learned person’s profession. You are never supposed to stop learning. Your knowledge and skills will be your edge, and without the supervision of seniors, it becomes even harder to identify your weakness and to work on them. The only way you can survive is by finding mentors and getting help from other lawyers who can guide you to learn faster and identify your blind spots.

Therefore, it is critical to have humility and the courage to go up to others and ask for help.

You also need to make it a habit to learn new things every day, even though it may not be directly related to your work immediately. Working for the future when your present is bleak and difficult is very hard, but it is the only way you will make it through the difficult times and usher in prosperity as a lawyer. It is a very rare habit to cultivate when you are trying to find clients, keep them and do their work all at the same time, but that is no excuse for failure, is it?

This stark reality is most obvious when you are trying to build your own practice.

It is overwhelming. You need to develop good habits and tremendous discipline to keep improving your lawyering skills through thick and thin, failing which you will get assigned to a list of non-descript struggling lawyers very soon. Pay attention to learning and development if you do not want to face certain failure.

Another big problem will to be to find qualified people to hire when you need to expand. Most Indian law graduates do not want to work with new names. They are attracted towards big brand names, and it is hard for new lawyers to hire quality talent even when they are ready to pay market rates. This is where your personal brand matters. If you are regularly taking interns and offering classes, and even writing on social media, it will help you to attract the right kind of people.

When you start your organization so early, lack of experience in or exposure to organization building is also a major area of stickiness. You are likely to make many mistakes. Hiring and firing is the usual things most new lawyers get wrong. Be slow to hire and quick to fire. This should be the thumb rule. I know it is hard to do so when so few people are even willing to work for you, but not doing this will cost you dearly.

How should you decide on your pricing?

The biggest mistake rookie lawyers make is to price themselves too low. If you charge too less, people will not trust you. And you will not get enough time to spend on the matter because you are always running around to find more work so you don’t remain hungry.

Being very cheap as a lawyer is not a strategy. It is suicide.

It also cements your reputation as a cheap lawyer which is hard to shake off later.

Please charge a reasonable amount. Calculate the number of hours you will spend wisely before you quote. GIve yourself a wide margin because legal work often tends to explode and cross all expectations, so do not quote hours conservatively.

However, always take great pain to explain your pricing to the client. Give them a roadmap on how the work will be done if different stages and what you will be charged in each stage. Show them how you calculate it and why it is fair. Make sure that pricing is transparent. However, also make sure that you are not the cheapest lawyer. Genuine clients do not mind spending a fair amount on legal matters after all their life and death depend on it. Make sure to limit the scope of work with specific language in your written quote, otherwise experienced clients will take you for a ride.

Find out the usual market rate, and charge a little below or a bit above it, depending on how you want to position yourself.

Remember that apart from your time there are other inputs like the office rent, electricity, clerkage, cost of your secretary etc. Even printing cost can get upto thousands. You need to charge enough to cover all overheads.

You can charge less while you are a complete greenhorn, and just want to get some work to learn more about it. But it is not a strategy that often works because people do not want to hire cheap and greenhorn lawyers for important matters.

What are the major mandatory and optional expenses?

Spend on your branding. Get a good logo, a nice website, a presentable blog. Make sure you have good tools to work with, such as a good laptop, good internet connection, access to necessary online databases.

However, an office is not mandatory for a lawyer who is just starting out. I know a lot of lawyers who earn in crores but still work from their apartments and cafes. An office is not at all necessary, and get a co-working space if you must. Do not spend on a fancy office and increase your overhead, it is a bad idea in initial years.

Begin to get staff and juniors as work increases. Getting a secretary is usually a great idea. Start taking in interns as soon as you can. Pay them only if they actually contribute to the work. Having other people to work with and the train is likely to increase your enthusiasm, and make your lonely journey a little easier.

Most rookie lawyers make a mistake. They think building a practice happens when you have all the trappings of a successful law firm. So they focus on showing off. Get a fancy office. Hire a lot of people that they cannot afford. They invest more in office decor than their own training. They spend on cars and club memberships thinking that these are essential to building a law practice. They spend a lot of money on publicists in order to get media coverage.

Not really.

Again, a sure shot sign of another new law firm that will not be around the block for too long. Smart lawyers wait till they are successful before increasing overheads. You want clients to come to you because you deliver results, not because you have a fancy office. It is ridiculous to think that you can succeed in the long term by doing this.

It is much harder and much better to focus on becoming a better lawyer who their clients trust based on the results that were delivered so far.

What should be your focus in the first few years?

In the first few years, you should focus on acclimatizing yourself with the workings of the court, the babus, the clerks. You want to figure out your areas of interests and where you have a sweet spot for the first round of growth. You want to discover a niche you can work towards ruling in the medium term.

Focus on learning and development. Focus on finding mentors and supporters who want you to be successful. Learn about marketing and sales. You need to learn those skills one way or the other.

Work on finding people you will love to partner with and work with. Your chance of success and growth increase dramatically when you find good partners and team-mates.

Focus on building a great reputation in the legal industry, amongst your peers. If other lawyers think that you are bright, hard-working, unassuming and an agreeable person, on the rise as a lawyer, it will go a long way to cement your reputation and get you the right clients.

Please improve the quality of your work. If you start on your own right in the beginning, there are good chances that you will do a lot of shoddy work initially. No worries, just make sure you learn from every mistake. Invest in learning programs like the Master Access by LawSikho so that you can prepare well for every meeting, every piece of work and you make fewer mistakes.

What could be the biggest reasons for failure and how to avoid them

People fail at running their own practice mostly due to their mindsets.

Either they are not ready to do whatever it takes to succeed. That may sound surprising, but many will not work as hard, or not be able to handle the sheer pressure of running your own practice.

This is not for the faint-hearted. This is not for people who want or expect quick success. This is not for someone who cannot work tirelessly, with great focus and zeal when the future looks uncertain and bleak.

It takes tremendous courage and self-confidence.

It takes the ability to work alone and still be able to work on assembling a kick-ass team.

More importantly, it requires the ability to sacrifice the short term comfort for long term success.

It is certainly one of the hardest career choices, with massive rewards if you can pull it off.

There are too many reasons you may fail, and most of them are internal factors – related to your personality, tenacity, and patience.

Outside reasons and obstacles can be overcome if you have those internal factors sorted out.

So if this is something you want to do, focus on the basics. Work on your physical and mental health, or else you will not survive this. You need to have the mental fitness of a US navy seal, and the physical ability won’t hurt you either.

If you try to pull it off by putting your health, mental or physical, in jeopardy, you will soon burn out and fail. So do not ignore these things.

Once your basics are in place, the rest of it is about improving yourself on the go, every day, on every opportunity you get.

If you are one of the brave people who want to set up a law practice or a firm right out of law school, kudos to you, and all the luck in the world. You definitely need it.

Diploma:

Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution.

Diploma in M&A, Institutional Finance and Investment Laws (PE and VC transactions).

Diploma in Entrepreneurship Administration and Business Laws.

Executive Certificate Courses:

Certificate course in Advanced Corporate Taxation.

Certificate course in Advanced Civil Litigation: Practice, Procedure and Drafting.

The post How to Start a Law Firm Straight out of Law School? appeared first on iPleaders.

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

I was speaking to the knowledge management head at one of India’s major law firms in Mumbai, exploring how we could help them. They asked me if we had any litigation courses to offer. “For your litigation team?, I asked.

“No, for our corporate lawyers,” she said. “It will help them to know how litigation works.”

I was surprised.   

When we think of the different mainstream careers that a lawyer can pursue, we imagine three fundamental choices – work as an in-house lawyer in a company, work in a law firm (whether it is a corporate, disputes, tax or IP law firm) or work as a litigator.

A lawyer who picks one of the paths is, in the ideal world, expected to proceed along the same path to its logical conclusion. A corporate lawyer often visualizes becoming a partner in a law firm (or start his or her own law firm), an in-house counsel dreams of becoming a general counsel one day and a litigator dreams of becoming a highly acclaimed senior advocate, charging lakhs for every hearing and for every client meeting.

However, it may be difficult to imagine legal careers in such a rigid mould. People shift not just across companies and law firms, but they shift the very nature of their careers. For example, a sufficient number of corporate lawyers shift to in-house positions and to litigation, and similarly, a sufficient number of litigators also shift to corporate law firms, and to in-house positions in companies.

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Does their prior experience help them? Or do such shifts mean a waste of time and discounting of previous experience?

It is true that big law firms will discount your experience unless you worked in another big law firm. They do that because they have a better bargaining chip and people want big law firm jobs badly. It does not necessarily mean your experience is otherwise worthless.

Unlike what most people think, when you go from litigation to law firm or from a transactional role in a law firm to litigation, you don’t start from scratch. You will definitely be able to benefit from your past experiences, especially in terms of the values, habits and skills you bring from your past career into the new career, around client service, conceptualization of a strategy, business development skills, argumentative skills, attention to detail, ability to think on your feet, etc.

In fact, due to a richer past experience, some of the people who shift their careers are able to enjoy more success in the long term, in their new career. This is probably because they are able to bring the best of multiple worlds together.

You may know that Shardul Shroff of Shardul Amarchand Mangaldas, Cyril Shroff of Cyril Amarchand Mangaldas and Zia Mody of AZB & Partners, all started their careers through litigation.

Shardul Shroff is an Advocate on Record at the Supreme Court of India. Zia Mody started her career as a litigator in the Bombay High Court in the early 1980s, and also represented the Bombay Environmental Action Group (BEAG) in cases against fraudulent builders. Similarly, Pallavi Shroff started her career as a litigator in the Delhi High Court (with the law firm Amarchand Mangaldas itself). Cyril Shroff had also started working at Amarchand Mangaldas itself from his days in law school, but as a litigator.   

You could say that these lawyers had to have a litigation experience because corporate law practice could not have succeeded in the country’s economic environment back then, as domestic industry was a victim of license raj and the country had not opened to foreign investment, thus indicating that most of the available work for a lawyer would be in form of litigation.

You should know that this view is not specific to India. All corporate lawyers who are licensed to practice as solicitors in the UK have some amount of litigation experience. This is because the Solicitors’ Regulation Authority in UK requires trainee solicitors to have experience in both contentious (i.e. litigation or disputes) and non-contentious work before they are eligible to practice as solicitors (UK has a division between advisors, called solicitors, and lawyers who practice in court, called barristers), and that firms which cannot provide their trainees such an experience must arrange for appropriate secondments for this purpose.

We have done some research and asked lawyers who work as in-house counsels, independent litigators and corporate lawyers working in law firms, and all of them have one thing to say – that litigation experience made a huge contribution to their capacity to work as a corporate lawyer.

How? Let us take a look with respect to the different categories of work of a corporate lawyer.

Advisory work

A significant amount of advisory and structuring work performed by corporate lawyers requires them to go through various kinds of notifications, circulars and instructions issued by regulatory bodies and read them together with the parent legislation.

When you are advising a business, you will often find yourself in the grey, because business structures and models are very innovative.

Consider, for example, the situation of Uber a few years back – was it a taxi operator? Was it governed by radio taxi regulations? Were any home-owners offering their home to Airbnb required to obtain permission from local authorities for running a bed and breakfast? Was Airbnb a hotel chain like, say, Taj or Oberoi?

These kinds of situations frequently arise and constitute bread and butter work for general corporate lawyers. You have to deal with these questions not only when you advise companies and potential investors, but they determine the outcome of every investment transaction or M&A deal.

One more problem that arises is that regulatory authorities at the lower level can take a very narrow view of the law and issue notices to businesses for non-compliance.

A sound strategy involves the following:

• Identification of the true intent of the regulatory provision and advise accordingly. As a litigator, you will be able to glean a better ‘sense’ of the law. Some literal interpretations are too onerous, and you will not be able to identify how a government official may twist the law in one way or the other. However, it does not help to be too conservative as a corporate lawyer. Clients do not want lawyers to strike down business proposals but come up with viable ways by which the objectives of the proposals can be realized.
• Where it is necessary and worth it for the business, the regulatory provision may even need to be challenged in the appropriate forum (when the business team is willing to shoulder the waiting period, cost of litigation and the risk of an adverse order).
• Understanding the implications from different kinds of court orders from a transactional perspective. For example, a non-speaking order of a High Court granting a temporary injunction against some kind of practice, does not mean that such practice has been ruled illegal. While you can infer that the matter is being litigated upon and factor it within your business strategy, you cannot infer that such a practice is itself illegal, based on these facts.
• Identification of possible errors by regulatory authorities and preparedness for handling adverse actions by them. What if a show-cause notice is issued for non-compliance of a particular provision, because the authority interprets it differently? What if the authority does not accept the reasons you have provided in support of your interpretation and chooses a different interpretation and a different course of action?
• Shaping regulatory opinion, public policy advocacy and responding to white papers, etc. around the legal validity and overall economic benefits to the country through the client’s business and business model becomes important for corporate lawyers at the highest level. For example, if you are acting for an app which wants to introduce a new kind of over the top content (OTT) with original programming (say, such as Netflix) and you have reasons why it must not be censored as per existing law applicable to TV programming and movie censorship, it will require significant effort to influence the opinion of the government and various statutory authorities such as TRAI, CBFC, etc. However, this kind of advocacy is not a skill that corporate lawyers typically develop. However, litigators have an upper hand here, especially if they have been arguing at constitutional courts.

Further, let us assume that you are advising a company on a notice received by the director for violation of specific labour laws. The show-cause notice requires the company to show cause for why legal action for non-compliance of that statute must not be initiated and specifies the consequences of violation of that statute, which may be both civil and criminal in nature.

Ordinarily, a corporate lawyer with no litigation exposure is more likely to conclude that criminal liability (which could lead to imprisonment if the statute provides) immediately follows if there is a violation of the statute, but someone who has experience of criminal trials will be able to identify that first, a complaint needs to be filed with a magistrate, process needs to be issued and the trial must follow, before there is risk of criminal liability.

You will be able to visualize the end-to-end proceedings and provide advice on what needs to be immediately argued and demonstrated in the response,  and to what extent corroborating evidence must be furnished in the response itself, to eliminate the risk of criminal proceedings first, and then how to demonstrate compliance.

If criminal proceedings are still initiated, you will be confident about how to structure the argument and to furnish the appropriate evidence at the correct points, and to take up appellate remedies if at the trial court level there is an adverse decision.    

You will also be prone to giving firm and direct advice, without overuse of disclaimers and uncertainties, which clients tend to prefer.

In other words, you will have a strategy which is richer and more well-informed. A lot of unnecessary panic and concern will be avoided.

Drafting Work

While drafting a contract, a corporate or commercial lawyer’s mandate is to provide a way for the parties to realize the business outcomes they seek. The lawyer must mitigate the risk of disputes and provide certainty to the contract by mapping out as many scenarios as possible and providing clear risk allocation between parties. If there is a disagreement, a clear path forward must be provided, so that, as far as possible, the need to approach courts for the interpretation of the contract where a provision is ambiguous, or construction of the contract, where the contract does not provide for a particular scenario, is minimized.

When you are drafting a contract, many lawyers only think at the first level – whether you can go to a civil court or arbitration for this violation, whether you can get an injunction against the other side, etc. In some cases, they even sub-consciously use the “We will see when it happens” approach.

This is not the trait of a mature lawyer, whose job is instead to measure and map out risks appropriately. In this regard, a litigation experience helps in the following ways.

End-to-end visualization of contract scenarios

When you are drafting contracts and notices, as a litigator you will always think of how the provisions will be interpreted by a court of law (or an arbitrator), and how the contract will be enforced. There will be a laser-sharp focus on enforceability and determinability of the provisions of the contract. The chances for loose ends and vagueness in the operation of the contract are minimized. Anyone should be doing it, but those who have litigated many times over interpretation of clauses tend to be that much more cautious.

The interplay of contract terms with the statutory framework

You will also keep in mind the application of the statutory provisions which get triggered in an enforcement scenario and how that interplays with the contract terms. For example, if you are drafting the event of default clause in a loan agreement (on behalf of a lender), the manner in which the default is called and provision of a cure period, you will need to keep in mind how  insolvency and bankruptcy code (IBC) proceedings could pan out if they are initiated, how the statutory moratorium under IBC will operate and keep that in mind while drafting these provisions and other relevant factors.

Similarly, if you are drafting a debenture trust deed, you will be able to look at whether the provisions actually create a legally valid trust over immovable or movable property, or whether it is only creating an appearance of a trust due to the title of the document and the assertion in the deed that there is a trust.  

In short, attention to the litigation aspect of a transaction will enable you to visualize the end-to-end process at the time of drafting itself, thus saving your client a lot of agony, costs and difficulty in the future.

Selection of dispute resolution mechanisms in a transaction

Some lawyers have a tendency to universally provide for arbitration in all contracts, without paying attention to how the mechanics of the arbitration process will work. In India, arbitration can prove to be as difficult or even more complex than litigation, especially for contracts which are not of high value.

A legal officer in a major bank (for which Lawsikho prepared training materials) stated that they seldom use arbitration in their contracts because as far as debt recovery is concerned, the statutory framework proves to be sufficient. Even for other contracts, they prefer to approach courts to resolve disputes rather than arbitration, unless the contract is of very high value, say, running into a few crores at least.

This was a strategic decision, and knowledge of the dispute resolution environment was necessary to arrive at such an outcome.

Drafting of dispute-prone terms and other provisions of the contract

Some contractual provisions such as indemnity, limitation of liability, non-compete and non-solicit are highly susceptible to litigation, and being restrictively interpreted by courts, if not completely struck down.

A lawyer with dispute resolution experience and skill-sets is better-equipped to identify how courts will interpret such terms in a particular contract and use language which is more balanced while meeting the objectives of his or her clients.

A disputes lawyer may also be able to benefit from prior experience of how judges interpret contracts, their perspectives in tricky scenarios (e.g. employer-employee situations, foreign investor-domestic entrepreneur situation), etc. and recommending alternate commercial mechanisms to protect the client’s interest, apart from merely including litigation-prone terms in the contract.

A broader understanding of a lawyer’s role and the way forward

In the end, you need to understand that businesses do not engage lawyers to say Yes or No to their business plan, model or strategy. They engage lawyers to say how the objectives of the business can be fulfilled. Thus, all the experience that you can bring to the table, matters.

The most successful lawyers are not cost centres. They are not a cost to the client because they don’t restrict or limit business. They are sought after because they act as business facilitators.

They ensure that the client is able to perform its business smoothly and create the right set of incentives for other stakeholders (customers, collaborators, vendors, regulators, governments, etc.) to facilitate the end-goal of his or her client.

How deep does your advice to your client go? How many steps ahead can you think of beyond the current situation? The best chess players can think of more than 20 moves ahead. Corporate lawyers and litigators also need to do that.

Your effectiveness as a corporate lawyer is not determined at the time you get the deal signed (called signing), or the money transferred by one of the parties, often referred to as closing in investment and M&A transactions, or how happy your client appears at any of those points or how grateful he or she is to you for your contribution, but how many loose ends and loopholes are discovered later which lead to disputes.

Your client will not expressly state this expectation. Most clients do not even know that this is the expectation they have when they brief a lawyer to draft documents for a transaction. However, as a professional, you need to understand this logically. The client satisfaction that you have generated over the years by drafting hundreds of contracts for a particular client rapidly erodes if the client starts landing up in disputes arising from vague or uncertain terms, or gaps in the contract.  

As you notice above, there are specific qualities that are traditionally imparted through a litigation experience, which are extremely valuable for corporate lawyers.

If you want to deepen and enrich the strategy you offer your clients, these traits will help.

Is litigation experience necessary to acquire these traits? What should you do if you do not have litigation experience already? If you are not a litigator, does this mean that you must quit your current job to acquire litigation experience?

Until recently, it was, because there was no other way to develop a litigator’s mindset, other than by acquiring litigation experience, at a dispute resolution team of a law firm, or under a senior, or through independent litigation.

Fortunately, today, you can take up any of the courses on insolvency and bankruptcy code (IBC) litigation, arbitration, civil litigation, criminal litigation, or the full litigation package to train yourself and develop a litigator’s mindset while simultaneously performing your current job. It takes only 6-8 hours per week to train yourself in this over a period of 3 or 6 months. You learn by performing practical exercises, which require you to draft different kinds of documents.

You can find highly practical courses that are created to train you into a formidable lawyer at LawSikho.com. Here are a few courses closing in a few days. Would you be interested in any of these?

Diploma:

Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution

Diploma in M&A, Institutional Finance and Investment Laws (PE and VC transactions)

Diploma in Entrepreneurship Administration and Business Laws

Executive Certificate Courses:

Certificate course in Advanced Corporate Taxation

Certificate course in Advanced Civil Litigation: Practice, Procedure and Drafting

The post Do Corporate Lawyers need to Possess Litigation Skills? Unlocking the Litigator’s Mindset appeared first on iPleaders.

This article has been written by Subodh Asthana, a second-year student of Hidayatullah National Law University, Raipur. The has discussed some essential points and merits of Legislation as a source of law.

Legislation means the process of lawmaking. Legis means law and Latum mean “making”, and as a whole it means lawmaking. According to Austin, it means the making of law by a supreme or a sovereign authority which must be followed by people of every stratum of the society. Salmond defines Legislation as the process of lawmaking by a competent and able authority.

Legislation is the process of lawmaking where a competent authority is given the task of drafting and enacting the law in a state. It is also said to be a strict concept of lawmaking because there is only one body which is entrusted with the work of lawmaking and also there is no scope of any alteration as such because of codified and watertight laws which leave a very minuscule range of the amendment.

Definition of Legislation

According to Salmond: “Legislation is that source of law which comprises in the assertion of lawful standards by a competent specialist.”

According To Austin: “Legislation is the command of the sovereign or the superior authority which must be followed by the common masses backed by sanctions”.

According to Gray: “Legislation implies the formal expression of the administrative organs of the general public.”

According to Positivist School: “A run of the mill law is a rule and legislation is the typical source and form of lawmaking.” Most examples of this school don’t affirm that the courts additionally can figure law. They don’t concede the case of custom as a wellspring of law. Consequently, they view just legislation as the form of law.

According to Historical School: “The legislation is the least innovative of the forms of law. The authoritative motivation behind the legislation is to give the better framework and increasingly viable the custom which is unexpectedly created by the general population.”

Historical School usually don’t perceive the legislation as a form of law.

Types of Legislation

Legislation can have numerous reasons, for instance, to direct, to approve, to endorse, to give, to authorise, to allow, to proclaim, to confine and to annul. Therefore in enacting any legislation and the rule of law, the welfare of the citizens must be kept in mind and therefore, it is must be adopted in the best interests of the citizens.

Some different types of legislation are as follows.

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Supreme Legislation

The Supreme legislation is the legislation adopted by the sovereign intensity of the state. In this manner, some other authorities which are the organ of the state cannot control or check it. It is considered incomparable as well as lawfully powerful. An established piece of this rule can be found in Dicey’s book, ‘The Law of the Constitution‘.

There is no legitimate restriction on its capacity. Indian parliament is likewise preeminent. Even though there are different constitutional amendments upon its capacity, it isn’t subject to any other administrative authorities inside the state. Therefore the sovereign jurisdiction of the state can’t be revoked, cancelled or constrained by some other authoritative organ of the state.

Subordinate Legislation

Subordinate legislation will be legislation by some other authority than the Supreme specialist in the state. It is made under the powers designated by the Supreme authority. Such legislation owes its reality, legitimacy, and continuation to the Supreme expert. It can be cancelled and abrogated anytime by the power of the sovereign authority and therefore, it must offer an approach to sovereign legislation. Subordinate legislation is liable to parliamentary control. Five unique types of subordinate legislation can be distinguished. These are as follows.

Colonial Legislation

The nations which are not autonomous, and are under the control of some other state have no Supreme capacity to make law. Such countries can be in different classes such as colonies, domains, secured or trust regions and so forth. The laws made by them are subject to the Supreme legislation of the state under whose control they are. Therefore it is subordinate legislation.

England has had numerous colonies and territories. The laws made by them for the self-government are subject to modification, nullification or supersession by the legislation of the British Parliament. As the colonies are free, accomplished freedom and practically all the British domains have an unlimited power for legislation, hence sooner rather than later, we might have this class of subordinate legislation no more in existence.

Executive Legislation

At the point when legislative powers are delegated by the designated official to an executive, it is called executive legislation. Even though the significant capacity of the official is to execute the laws and carry on the organisation, he/she is continuously dependent on some subordinate enactment powers. Today, for all intents and purposes of each law sanctioned by the lawmaking body contains assignment statements giving law-making powers by the official to the executive in order to enhance the statutory arrangements.

Judicial Legislation

Powers delegated to the judicial system to make and implement their own laws to maintain transparency in the judicial system of the country. This will also ensure that there is no involvement of any other organ of the government in the governance of the judicial system of the state.

Municipal Legislation

Municipal bodies are offered powers to make bye-laws concerning their neighbourhood matters. Bye-law made by a neighbourhood body works inside its individual area. In India, such municipal bodies are Municipal corporations, Municipal Boards, Zila Parishads, and so on.  There is a move for allowing extensive powers to Panchayats. Along these lines, there is a plausibility of extension of this sort of subordinate enactment in our nation. Balwant Rai committee appointed by the Parliament gave some parliamentary reforms needed in the Panchayat system of the country. The recommendations were later on incorporated in the Constitution by 73rd Amendment.

Autonomous Legislation

At the point when the Supreme authority gives powers upon a gathering of people to administer on the issues depended to them as a gathering, the law made by the last is known as the autonomous law and the body is known as a self-ruling body. A railway is an independent body. It makes bye-laws for the guideline of its organisation, and so on. A college is likewise a self-governing body. Even some universities in India have been granted the status of autonomous bodies.

Delegated Legislation

• Delegated(subordinate or subsidiary) Legislation alludes to those laws made by people or bodies to whom parliament has delegated law-making powers.
• Where Acts are made by Parliament, a Principal Act may cause arrangement for Subsidiary Legislation to be made and will to indicate who can make laws as such under that Act.
• Delegated Legislation can just exist in connection to an empowering or parent Act.
• Delegated Legislation contains the numerous regulatory subtleties essential to guarantee that the arrangements of the Act will work effectively. It might be directed by Government Departments, Local Councils or Courts.
• Guidelines and Statutory Rules are the most widely recognised types of Delegated Legislation. They are made by the Executive or a Minister which apply to the overall public. By-laws, and once in a while Ordinances are made by a Local Government Authority which also applies to the general population who live around there. Principle and Parent Act regularly depict methodology to be followed in Courts if there is any flaw in a delegated law.

Advantages of Legislation as a Source of Law

Verifiably additionally the legislation has dependably been perceived as a significant wellspring of law as contrasted and different sources. There are two apparent explanations behind the legislation is viewed as a standout amongst the most significant sources of law. Right off the bat, it includes setting down of legitimate principles by the lawmaking bodies which the State perceives as law.

Besides, it has the power and authority of the State. It is hence said by Dias and Hughes that conscious law-production by a legitimate power, i.e. the State is called ‘legislation’ which gave that sovereign is correctly perceived as the supreme power by the courts. Relative Merit of Legislation over Precedent and customs have been discussed below.

Some main advantages of legislation are as follows.

1. Abrogative Power—It can change or annul old law, which control isn’t controlled by different sources.
2. Effectiveness—It separates the elements of making law and overseeing it between the Legislature and the legal executive.
3. Declaration — it gives that principles of law will be known before they are authorised.
4. Reliance on Accidental Legislation — Legislation is independent and emerges out of as the authoritative source of law it need not hold up until the original case of legislation.
5. Unrivalled in Form — It is predominant in structure, brief, clear, effectively available and understandable as against case law, which is an increase of sense in a considerable amount of pointless issue.

Precedent and Legislation

1. The legislation has its source in the process of law which is basically enacted and enforced by the State while the precedent has its origin in ancient and historic judicial pronouncements.
2. Legislation has an authoritative force on courts by the assembly. However, precedents are made by the courts themselves.
3. Legislation signifies formal declaration of law by the governing body though precedents are acknowledgement and use of new standards of law by courts in the administration of equity, justice and good conscience.
4. Legislation is ordered before a case emerges. However, the precedent appears simply after the case has developed and taken for the choice of the court.
5. Legislation is basically of an exhaustive structure while the extent of legal precedent is restricted to comparable cases as it were.
6. Legislation is commonly and generally forthcoming while precedent is retrospective in nature.
7. Legislation is announced or distributed before it is brought into power, on the other hand, precedent comes into power on the double, i.e. when the choice is articulated.
8. Legislation is finished with the goal of the lawmaking process yet it isn’t so on account of the precedent. The precedent which incorporates ratio decidendi and obiter dicta are expected to settle a particular contest on the purpose of law once for all.
9. It isn’t hard for people, in general, to realise the law instituted by lawmaking body yet the precedent dependent on the case law isn’t effectively known to the general population. Now and again, the attorneys who manage law are themselves oblivious about the current case-law. Therefore it makes a precedent of an ambiguous nature.
10. Legislation includes law-production by deductive strategy while case-law is made by resorting to an inductive technique.

Legislation and Custom

1. The presence of legislation is basically by law, while customary law is wholly accepted in a particular boundary.
2. Legislation is enacted out of hypothetical standards. However, customary law becomes is adopted because of its very well and long presence in history.  
3. Legislation as a source is indeed a long lasting nature of law, as contrasted to the custom which is the most established type of law and is followed by a particular sect
4. The legislation is a fundamental characteristic for a present-day society while the customary law was created in a crude social order.
5. Legislation is finished, exact, written in the structure and effectively open. However, customary law is generally unwritten am non-scriptum and is hard to follow.
6. Legislation results out of the deliberations while custom develops inside the general public in the ordinary course.

Demerits of Legislation

There is no source of law which is perfect and totally complete in its form and sense, some lacunas and loopholes could be easily found in every source of law which is as follows in the case of legislation.

1. Unbending nature—Law in the legislation is inflexible though the law in the precedents is versatile and adaptable.
2. In view of Hypothesis — Legislation, for the most part, continues on speculative certainties, by considering the existing environment and surrounding in which the established law is frequently observed to be blemished in its application to the mind-boggling issues emerging in genuine life though piece-scratches develop out of the commonsense exigencies and convenience.
3. An excessive amount of Importance to the Wordings—Legislation appends a lot of significance to its wordings. Thus, if the articulation is faulty, the law in itself gets effectively turned. In the precedents, the wording matters close to nothing as there is a genuine introduction which performs separate checks on the applicability of precedent as a source of law. Same goes with the customary law as well.

Conclusion

Legislation is therefore regarded as the most important source of law in the prevalent times. Hence it is considered to be the codified form of law which is commanded by the sovereign to the common masses, and it becomes a predicament situation to regard legislation as the authoritative source of law.

Legislation is one of the foremost and most important source of law in today’s world. Most countries in today’s world regard legislation as an essential source of law and follow this system of lawmaking. Although some lacunae and loopholes are there which exists in the present form but then too the difficulties such faced are relatively less than that faced from the other sources of law viz. custom and precedent as legislation as a source of law tries to bring uniformity by avoiding the ambiguity.

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This article is written by Sri Vaishnavi.M.N., a first-year student of Damodaram Sanjivayya National Law University, Vishakapatanam. In this article, she discusses the meaning of medical negligence, the elements that constitute medical negligence, consequences of medical negligence, duties of a medical practitioner, rights of a patient, laws that affect the medical profession, defenses available for the medical practitioner and exemptions for medical negligence.

Introduction

An estimated number of 2,25,000 people died due to medical malpractice or negligence which varies from incorrect dosages and wrong diagnosis to surgical errors. Statistics show that nearly 12,000 people die per annum because of unnecessary surgery.

A study conducted by HealthGrades in 2002 found that an average of one lakh ninety-five thousand hospital deaths in America was because of medical errors which were potentially preventable. From 1990 to 2003, 8151 medical malpractice payment reports were made filed against doctors in Illinois. In the same period of time, 2570 medical malpractice reports were filed against physicians in Indiana and 1,012 medical malpractice reports were filed against medical professionalists in New Mexico.

The Journal of American Medical Association reports that 1,06,000 patients die per annum because of the negative result of their treatment or medication. The Institute of Medicine estimates that errors in providing or suggesting medications are the most common errors and 1.5 million people every year are suffering injury from these mistakes.

What is Medical Negligence?

Medical negligence is the misconduct by medical practitioners or doctors by not providing enough care and taking proper safeguards or measures resulting in the breach of their duties harming the patients. In Moni v. State of Kerala [1], it is mentioned that in the case of the medical practitioner, negligence way failure to act through the standards of moderately ready clinical men on the time. There may be one or more perfectly proper or reasonable standards of care, and if he conforms to one of these standards, then he is not negligent.

For example, if an accountant makes a mistake there will be a loss of money but if a doctor makes a mistake there is a threat of losing a life. A doctor is always expected to be perfect as the patients see the doctors as gods and believe them in the process of healing and the mistakes of doctors cost a life.

Medical negligence occurs because of improper, unskilled or negligent treatment provided to the patients. Medical negligence also known as medical malpractice occurs when the medical practitioners fail to perform their duty with the necessary amount of standard of care. Negligence is an offense under the law of torts, Indian Penal Code, Indian Contracts Act, Consumer Protection Act 1986  and many more.

What are the essentials or ingredients that constitute the Act of Medical Negligence?

Negligence is the breach of legal duty. For example, a producer of cold drink has to ensure the quality of the product he produces, in case if he fails it amounts to negligence. A medical practitioner or a doctor who possess knowledge and skills for the purpose of giving advice and providing treatment owes certain duties to his/her patients which were mentioned in the case of  Dr. Laxman Balkrishna Joshi v. Dr. Trimbak Bapu Godbole and Anr.[2] by the Supreme Court. The breach of any of these duties gives a right to the patient to bring an action for negligence. These duties are:

• The duty or obligation of care in finding out whether to undertake a unique case or not.
• The duty of care in deciding what therapy or treatment that a patient is to receive in a certain case.
• The duty of care in administering the treatment properly.

Medical negligence is caused by lack of proper care or carelessness of the medical professionals during diagnosis, operations or while injecting anesthesia. The most common causes for medical negligence include lack of procedural safeguards, incorrect dosages, surgical errors, operation theatre contamination, blood transfusion contamination, mistreatment, wrong diagnosis, etc., which can be potentially prevented by taking a proper standard of care which is required.

Every medical professional or doctor has a duty of care towards their patients and when they commit a breach of this duty of care it causes injury to the patients and gives the patient’s right to bring an action against negligence. In the case of  State of Haryana v. Smt Santra [3], the Supreme Court stated that each and every health practitioner has a responsibility to act with an affordable amount of care and skill.

What are the duties of a medical practitioner towards a patient?

The duties and responsibilities of a physician are prescribed in the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 or Code of Medical Ethics Regulation, 2002  made under Indian Medical Council Act, 1956.

1. Obligation to sick – A physician or medical practitioner won’t consistently be certain to deal with each individual who asks for his service but he should continuously be competent to reply to the calls of the ill and will have to be mindful of the high character of his mission or obligation and the accountability he discharges in the direction of his professional responsibilities. A doctor or clinical practitioner advising a patient to seek provider of an extra health practitioner is acceptable however in the case of an emergency, a health practitioner ought to deal with the sufferer. No health care professional shall immediately refuse to offer to heal to a sufferer. However, the surgeon could refuse to deal with the sufferer if he/she is suffering from an ailment which isn’t inside the range of expertise of the treating health practitioner.
2. Prognosis – The physician should never exaggerate or minimize the gravity of a patient’s condition or ailment. He will have to make certain himself that the sufferer, his family or his in charge buddies have such knowledge of the patient’s condition or sickness as it’s going to serve the nice pursuits of the patient and his/her loved ones.
3. Patience, Delicacy, and Secrecy – A physician must have patience and delicacy. The confidentiality about the details of the patient and his ailments need to be maintained by the physician. However, in a few cases, the physician may reveal about these matters if he feels that his duty towards the society or any particular person is more important. For example, if there is a new form of hazardous and transmitting disease than the confidentiality of the disease cannot be kept.
4. The Patient must not be neglected – A physician or a doctor is free to choose whom he will treat or serve but he should respond to any request or need for his assistance in case of an emergency. After undertaking a case, the health care professional must now not forget the sufferer and must no longer withdraw from the case without giving sufficient information to the sufferer and his/her family. Provisionally or fully registered medical practitioner or doctor should not willfully commit any act of negligence that may deprive his patient or patients of the required standard of medical care.
5. Engagement for an Obstetric case –  When a physician who has been engaged to attend an obstetric case is absent or unavailable and another physician or doctor is sent for and delivery accomplished, the acting physician or doctor is entitled to get his professional fees, but should secure the patient’s acceptance or consent to resign on the arrival of the physician engaged.

Acts of Misconduct

• Abuse of Professional position – They should not attempt to do misconduct by using the position in their profession. Committing adultery or improper conduct or maintaining an improper association with a patient constitutes professional misconduct.
• Not taking the consent of Patient – Performing an operation without taking the consent or acceptance in writing from the spouse, parent or guardian in the case of a minor, or the patient himself as the case may be, constitutes misconduct. In an operation which may result in sterility, the consent of both husband and wife is required.
• Violation of regulations and laws – The medical professionals must follow the rules and regulations regarding the duties and responsibilities laid down in the  Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002.

What are the rights of the patients?

The Ministry of Health and Family Welfare (MoHFW) has released a ‘Charter of Patients Rights’ prepared by the National Human Rights Commission (NHRC) that includes all the lawful rights according to the Constitution of India.

• • Right to know the information – Physicians or their qualified assistants are required to provide ample information about your sickness, its analysis (provisional or demonstrated, as it usually is), proposed investigation and feasible complications to the patient. If the sufferer will not be in a state to recognize this, the health care provider or their assistant is required to furnish the information to the caretaker. This has to be accomplished in a simple language that the patient or caretaker will appreciate. Apart from this, sufferers have the right to grasp the identity and respectable repute of every medical professional and assistant as good as the major health practitioner who’s treating them. Expertise concerning bills of medication wants to be given in writing.
  • Right to see and check records and reports related to their ailment – Patients or their respective caretakers have the proper to entry the originals or copies of case papers, indoor sufferer documents, and investigation studies. Investigation experiences must be made to be had to them within 24 hours of admission or seventy-two hours of discharge. The hospital is accountable for providing a discharge abstract or a death abstract, in the case of a dying, to the caretakers or family members of the sufferer with customary copies of investigations.
  • Right to receive medical care during an emergency – In the case of an emergency, you can avail hospital treatment in any executive or confidential health facility. Underneath Article 21 of the structure, which ensures that every person has the proper right to life and private liberty, you have got proper right to prompt emergency care with the aid of medical professionals without compromise on the standards of care, safeguard and without needing to pay full or an advanced cost to the health center.
  • Right to give informed consent – If a hospital decides upon carrying an invasive investigation or surgery or chemotherapy on a patient, they require to do so after finishing a correct policy system. The general practitioner specifically in control of a patient has to provide an explanation for the risks, consequences, and process of the investigation or surgery in the element and an easy language before supplying the protocol consent type to the sufferer or to the responsible caretaker.
  • Right to have confidentiality, human dignity and privacy related to their ailment – Now this one is a particularly identified right, mainly for those who follow television suggests about hospitals or doctors. The code of ethics dictates medical professionals to hold knowledge concerning the ailment and medication plan for the patient in strict confidentiality from all people besides the patient and their caretakers. Unless it is the best case the place sharing this knowledge is within the interest of shielding others or because of public well-being issues. Within the case of a feminine patient, she has the proper to demand the presence of another girl if the clinical practitioner checking or treating her is male. Having stated this, the medical institution is accountable for upholding the respect of every patient, irrespective of their gender.
  • Right not to be discriminated on any basis regarding medical care – This point brings us to the rights of a patient being upheld without discrimination established on their ailment, situation, HIV reputation or on their gender, age, religion, caste, ethnicity, sexual orientation, linguistic or geographical or social origins. Headquartered on the above traits, no person may also be subjected to discriminatory treatment, and the employees of the clinic are liable for ensuring this.
  • Right to safety and quality care according to standards of required medical care – There is a list of provisions that come under the list of quality care standards. This includes Safety and security, Cleanliness, infection control measures, and sanitation facilities and safe drinking water, healthcare that abides by the latest standards, norms, and guidelines under the National Accreditation Board for Hospitals, to be attended to, treated and cared for in a professional manner and with the principles of medical ethics and the right to seek redressal by patient or caretakers.
  • Right to choose or select any alternative treatment to cure their ailment if options are available – Hospital employees and medical professionals are dependable for clarifying all cure choices to the sufferer/caretakers. After a radical gain knowledge of their alternatives, the patient/caretakers can prefer to select a cure that will or is probably not the surgeon’s main recommendation. This also signifies that once the patient/caretakers prefer this substitute healing, they’re going to shoulder the accountability of its consequences.
  • Right to have transparency in the cost of the treatment and care according to the prescribed cost whenever relevant – As acknowledged, the patient has the correct to have a written account of the costs they’ll have to endure for the remedy they’re receiving. As evidence for this, hospitals are required to have printed brochures and distinguished display boards bearing the names and rates of clinical tactics which can be to be had with them. Particular schedules of key charges need to be displayed in conspicuous places and must be in both, English as good as the neighborhood language. Patients have the correct to get drugs, instruments, and implants at rates determined with the aid of the countrywide Pharmaceutical Pricing Authority (NPPA) and other imperative authorities. Patients have the right to acquire health care offerings that fee inside the variety prescribed through the critical and State governments, on the time of receiving it.
  • Right to choose or select the source for buying medicines or doing tests – As a patient or a caretaker, you’ve gotten the correct to decide upon which registered pharmacy you want to purchase your scientific provides from. This also entails getting an investigation system (like a blood experiment, for illustration) from any diagnostic center or laboratory registered beneath the national Accreditation Board for Laboratories (NABL).
  • Right to choose or select proper referral and transfer, which is free from contradictory commercial influences – If a patient must be transferred from one healthcare center to one other, a right and unique justification need to take delivery of to them/caretakers along with various options of the brand new healthcare center. They have got to additionally take delivery of a record of cures/drug treatments that have got to be endured after the transfer. This step is not able to be taken unless the patient or their caretaker be given it. Understand that, these selections are not able to be influenced by factors like “kickbacks, commissions, incentives, or other perverse trade practices.”
  • Right to protection for the patients who are involved in the clinical trials – Consistent with the Ministry of Health and Family Welfare (MoHFW), “All scientific trials need to be carried out in compliance with the protocols and good scientific apply recommendations issued through services, Govt. Of India as good as all applicable statutory provisions of Amended drugs and Cosmetics Act, 1940 and rules, 1945 principal medicinal drugs general manipulate service provider, Directorate basic of wellness.” These aspects incorporate consent through the sufferer, written prescription of medicinal drugs or intervention, privacy, and many others.
  • Right to protection of participants who are involved in biomedical and health research – In case a patient is involved in a biomedical or health study system, their consent wishes to be taken in a written format. Their correct to dignity, privateness, and confidentiality wants to be upheld even for the period of the research. If the participant suffers direct bodily, psychological, social, legal or financial damage, they are eligible for financial or other help by using the medical institution. Anything advantages the hospital gets from the study need to be made to be had to valuable individuals, communities and the overall populace.
  • Right to be discharged or right to receive or take the body of a deceased person from the hospital – “A patient has the right to be discharged and cannot be detained in a hospital, on procedural grounds such as a dispute in payment of hospital charges. Similarly, caretakers have the right to the dead body of a patient who had been treated in a hospital, and the dead body cannot be detailed on procedural grounds, including non-payment/dispute regarding payment of hospital charges against wishes of the caretakers,” says the Ministry of Health and Family Welfare  (MoHFW).
  • Right to get the education that a patient requires to know about his ailment or disease – There’s a list of things that a sufferer wants to be advised about by the medical institution. These have got to be addressed within the language that the sufferer/caretaker knows. This entails main details about their, healthy living practices, their rights and responsibilities, well-being coverage schemes significant to them, relevant entitlements (for charitable hospitals)and how to search redressal of grievances.
  • Right to be heard and seek redressal about his ailment or disease – Last but not the least, every patient has the proper to address his grievances and give feedback about the healthcare and remedy they received on the hospital or from a specified doctor/assistant. The Ministry of Health and Family Welfare (MoHFW) extra provides, ” sufferers and caregivers have the correct to seek redressal in case they are aggrieved, by reason of infringement of any of the above-recounted rights on this charter. This may be achieved with the aid of lodging a criticism with a legitimate special for this cause by using the sanatorium/healthcare supplier and extra with a legitimate mechanism constituted by the federal government corresponding to sufferers’ rights Tribunal forum or scientific organizations regulatory authority because the case could also be.

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What are the consequences of Medical Negligence?

Civil or monetary liability

Liability under the Consumer Protection Act

All the medical services fall under the purview of the Consumer Protection Act 1986. The interests of the consumers are been protected against the deficiency of services. Section 2 (1) of the Consumer Protection Act defines the ‘deficiency of service’ means any fault, imperfection, shortcoming, or inadequacy in the quality, nature, or manner of performance that is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise about any service. For example, in the case of Indrani Bhattacharjee v. Chief Medical Officer and Ors.[4] the ECG of the patient was not normal and the doctor failed to advise the patient to consult a cardiologist and also to reduce smoking and drinking, and instead gave him medicines for gastric trouble which amounted to deficiency in service.

In Kusum Sharma v. Batra Hospital and Medical Research Center and Ors.[5], the court has observed that when the medical practitioner fails to maintain the standards of reasonable care or competence then he/she will be held liable for medical negligence, which gives rise to the deficiency in medical service in terms of Section 2 (1) (g) of Consumer Protection Act.

In the case of Kidney Stone Center v. Khem Singh Alias Khem Chand [6], the patient was suffering from stone in the urethra. The defendant’s company promised to remove it without surgery on payment of ten thousand rupees but failed to do so. The District Consumer Forum ordered to refund the amount along with the interest.

Doctors are not held liable either individually or vicariously if they do the treatment or service without charging their patients. Therefore, free treatment at government or non-government hospital, health care center, dispensary or a nursing home cannot be considered as service as defined in Section 2 (1) (o) of the Consumer Protection Act, 1986. Hence, the contract of service is beyond the sphere or ambit of the Consumer Protection Act. The Act cannot rescue the patients in case if they took free service or paid only a nominal fee for registration. However, if the charges of the patients’ are waived due to their incapacity to pay then they are considered as consumers and can sue under the Consumer Protection Act.

The medical practitioners or doctors will be held liable for their services unless they come within the exceptions mentioned in the case of the Indian Medical Association v. P Santha[7] and the court held that even though the services provided by the doctor or a medical practitioner are of personal nature the patients can’t be treated as contracts of personal service. They are contracts for service under which a doctor can be sued in the Consumer Protection Courts.

The complaints under the Consumer Protection Act can be filed at  

1) The District Forum if the value of services and compensation claimed is less than 20 lakh rupees,

2) Before the State Commission, if the value of the goods or services and the compensation claimed is below 1 crore rupees, or

3) In the National Commission, if the value of the goods or services and the compensation exceeds more than 1 crore rupees.

There is a minimal fee for filing a complaint before the District Consumer Redressal Forums.

Liability under the Law of Torts

The tort law begins where the Consumer Protection Act ends to protect the interests of the patients. People usually file a complaint under tort or civil law in order to get compensation. For instance, if there is a breach of duty of care when the patient is under the supervision of the hospital then the hospital will be held vicariously liable to pay for the damages in the form of compensation.

In the case of Dr. Balram Prasad v.Dr Kunal Shah and Ors.[8] the Supreme Court has awarded the highest amount of compensation i.e., an amount of six crores plus interest which makes a total amount of twelve crores as compensation as the case was pending for the past fifteen years for medical negligence which led to the death of petitioner’s wife.

Sometimes, a senior doctor can be held responsible for the acts done by the junior doctor. If the employee of the hospital acted negligently and incompetent while dealing with the patient then the hospital will be held responsible for the act. In Mr. M Ramesh Reddy v. State of Andhra Pradesh[9],  the hospital authorities were found to be negligent as they did not keep the bathroom clean, which resulted in the fall of an obstetrics patient in the bathroom and lead to her death. The court awarded a compensation of one lakh was awarded against the hospital.

In the case of  Lakshmi Rajan v. Malar Hospital Ltd [10], the patient was a forty-year-old married woman who noticed the development of a painful lump in her breast and went to the  Malar Hospital Ltd for examination, diagnosis, and treatment. Her uterus was removed though the lump had no effect on it. This ended her hope for a child. The hospital was held liable to pay compensation of two lakh rupees to the complainant.

A doctor has an obligation of providing proper treatment with the required amount of care in order to cure the patient. Failure of a doctor or a medical practitioner to discharge of this obligation essentially results in tortious or civil liability. In Hunter v. Hanley [11] the court has stated that ‘a doctor can be held liable for negligence only if it is proved that she/he is guilty of a failure to take reasonable amount of care that no doctor with ordinary skills would be guilty of if acted by taking a reasonable amount of care’.

Certain conditions have to be considered before held liable. The person must have committed an act or an omission which has been a breach of his legal duty and caused harm or injury to the patient. The complainant must prove the allegation against by submitting the best evidence available in the medical science and by presenting a professional or expert opinion and this principle was used in the case of Dr. Laxman Balkrishna Joshi vs Dr. Trimbak Bapu Godbole[12].

The principle of Res Ipsa Loquitur

It’s well authorized that in the circumstances of gross medical negligence the principle of res ipso loquitur is to be utilized. The law of res ipso loquitur is declared to be essentially an evidential policy and the stated principle is designed to assist the petitioner or the claimant. Res Ipso loquitur deals with the matters which speaks for itself; even as finding out the liability of the physician it has to be well established that the negligence mentioned must be a breach in due care which a traditional practitioner would have been ready to keep.

Latin for “the thing speaks for itself,” a doctrine of law that one is presumed to be negligent if the act of the person clearly shows that it is the reason the injury caused to the patient although, there is no distinctive evidence of an act of negligence, and without negligence, the accident should not have happened. A general practitioner will not be an insurer for the sufferer, lack of ability to medication, the patient would not amount to negligence, however, carelessness ensuing in the hostile situation of the patient would.

In some situations, the claimant can invoke the principle of res ipsa loquitur which means the thing speaks for itself. Sometimes, no proof of negligence is required or needed beyond the accident itself. This principle was applied in the case of Dr. Janak Kantimathi Nathan vs Murlidhar Eknath Masane[13].

In Gian Chand v. Vinod Kumar Sharma[14], the hospital authorities shifted the patient from one ward to another instead of changing the treatment that has been given to the patient. This resulted in damage to the patient’s health and the hospital authorities were held liable for negligence.

In Jagadish Ram v. State of Himachal Pradesh[15], the court has held that before performing any surgical procedure, the chart revealing understanding concerning the quantity of anesthesia advert allergies of the patient should be mentioned in order that an anesthetist can provide a plentiful amount of drug treatments to the sufferer. The health care professional in the above case failed to do so, therefore, because of the overdose of anesthesia the patient died and the doctor was once held liable for the identical.

Criminal liability

In the case of  State of Haryana v. Smt Santra [16], the Supreme Court has stated that the liability in civil law is based on the damages incurred and in criminal law, the degree of negligence is a factor in determining the liability. However, the elements like the motive or the intention behind the offense, the magnitude or degree of the offense and the character of the offender must be established to determine the criminal liability.  

In Jacob Mathew v. State of Punjab & Anr.[17], the court has stated that ‘a very high degree of negligence is required to be proved for imposing criminal liability.’ The Criminal liability for medical negligence may be imposed if

• The doctor was not possessed of the requisite skill which he claimed to possess or
• He possessed the skill but did not exercise, with reasonable care and competence in the given case.

In Poonam Verma v. Ashwin Patel [18], the Supreme court has distinguished between negligence, recklessness, and rashness, and also defined what amounts to criminal liability. It stated that a person is said to be acted in a negligent manner when he/she unintentionally commits an act or omission that causes a breach of his/her legal duty. A person who acted in a rash manner when he/she knows the consequences but foolishly thinks that they won’t occur as a result of his/her act.  A reckless person knows the consequences but doesn’t care whether or not they result from his/her act. The Court has stated that ‘any conduct falling short of recklessness and deliberate wrongdoing should not be the subject of criminal liability. ’

A doctor can be held liable under criminal law if it is shown that he/she was negligent or incompetent in performing their duty, with such disregard for a patient’s right to life and right to safety of his patient’s that it amounts to a crime against the State. This principle was used in the case of  R vs Adomako [19].

Sections that are often applied to deal with the cases of medical negligence under criminal liability are –

• Section 304-A of Indian Penal Code –  A person who commits a rash or negligent act which amounts to culpable homicide will be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
• Section 337 of Indian Penal Code –  A person who commits a rash or negligent act which threatens human life or personal safety of others will be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both.
• Section 338 of Indian Penal Code – A person who commits a rash or negligent act which threatens human life or personal safety of others will be punished with imprisonment of either description for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both.

Disciplinary action

The punishments and disciplinary action for medical negligence and misconduct are mentioned in chapter 8 of Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 made under the Indian Medical Council Act, 1956.

If a medical practitioner is found guilty of committing misconduct by the appropriate Medical Council then he will be awarded the certain punishments which include

• Removing the name of the medical practitioner from the register of medical practitioners forever or for a specific period of time.
• During the pendency of the complaint, the council may restrain the medical practitioner from performing the procedure or practice under scrutiny.
• The removal is widely publicized through local press and publications of different Medical Associations or bodies.

What are the defenses available for a doctor under the Indian Penal Code?

• Section 80 of Indian Penal Code – Anything which is done by accident or misfortune and without any criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution is not an offense.
• Section 81 of Indian Penal Code – Anything which is done merely by reason of it is being done with the knowledge that it is likely to cause the harm, if it is done without any criminal intention to cause harm, and in good faith for the purpose of preventing or avoiding other harm to person or property is not an offense.
• Section 88 of Indian Penal Code – No person can be accused of an offense if he/she performs an act in good faith for the benefit of the other person, does not intend to cause harm even if there is a risk and the patient has explicitly or implicitly given consent.

What are the laws that affect the medical profession?

There are few laws or provisions which affect the medical profession and it’s working. These are the laws which prevent medical negligence or malpractice and protects the interests of the patients. They are

• Article 21 of the Indian Constitution – It states that no person shall be deprived of the right to life and personal liberty except according to the procedure established by law.
• Article 32 of the Indian Constitution – It speaks about the Right to Constitutional Remedies. The apex court is given authority to issue directions, orders or writs and is considered as the protector and guarantor of Fundamental Rights.
• Article 41 of the Directive Principles of State Policy – The State can, within its jurisdiction, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want.
• Article 42 of the Directive Principles of State Policy – The State can make provisions for securing just and humane conditions of work and for maternity relief.
• Article 47 of the Directive Principles of State Policy – The State can regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State can endeavor to bring about prohibition of the consumption of intoxicating drinks and of drugs which are injurious to health  except for medicinal purposes.
• Section 52 of Indian Penal Code – Anything which is done without due care and attention cannot be considered as an act done in good faith.
• Section 80 of Indian Penal Code – Anything which is done by accident or misfortune and without any criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution is not an offense.
• Section 81 of Indian Penal Code – Anything which is done merely by reason of it is being done with the knowledge that it is likely to cause the harm, if it is done without any criminal intention to cause harm, and in good faith for the purpose of preventing or avoiding other harm to person or property is not an offense.
• Section 88 of Indian Penal Code – No person can be accused of an offense if he/she performs an act in good faith for the benefit of the other person, does not intend to cause harm even if there is a risk and the patient has explicitly or implicitly given consent.
• Section 90 of Indian Penal Code – If the consent is given by an individual underneath worry of damage, or beneath a false impression of fact, and if the individual doing the act knows, or has intent to think, that the consent used to be given consequently of such fear or misconception; or Consent of insane character, if the consent is given by way of a man or woman who, from unsoundness of intellect, or intoxication, is unable to appreciate the character and outcome of that to which he gives his consent; or Consent of little one, unless the contrary seems from the context, if the consent is given by means of a character who’s under twelve years of age.
• Section 92 of Indian Penal Code – Nothing is an offence by using cause of any harm which it will intent to a person for whose improvement it’s finished in just right faith, even without that character’s consent, if the instances are such that it’s not possible for that individual to suggest consent, or if that character is incapable of giving consent, and has no guardian or a different man or woman in lawful charge of him from whom it’s possible to receive consent in time for the object to be done with advantage. First of all, this exception shall not prolong to the intentional causing of loss of life, or the making an attempt to motive dying. Secondly, that this exception shall now not extend to the doing of something which the man or woman doing it knows to be more likely to reason death, for any motive rather than the stopping of death or grievous damage, or the curing of any grievous sickness or infirmi­ty. Thirdly, that this exception shall no longer extend to the voluntary inflicting of hurt, or to the making an attempt to cause harm, for any reason as opposed to the stopping of dying or hurt. Fourthly, that this exception shall no longer lengthen to the abetment of any offense, to the committing of which offense it would now not extend.
• Section 304-A of Indian Penal Code – A person who commits a rash or negligent act which amounts to culpable homicide will be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
• Section 337 of Indian Penal Code – A person who commits a rash or negligent act which threatens human life or personal safety of others will be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both.
• Section 338 of Indian Penal Code – A person who commits a rash or negligent act which threatens human life or personal safety of others will be punished with imprisonment of either description for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both.

What are the exemptions for Medical Negligence?

Doctors are not held liable either individually or vicariously if they do the treatment or service without charging their patients. Therefore, free treatment at government or non-government hospital, health care center, dispensary or a nursing home cannot be considered as service as defined in Section 2 (1) (o) of the Consumer Protection Act, 1986. Doctors will be held liable for their services unless they come within the exceptions mentioned in the case of the Indian Medical Association v. P Santha[20].

The doctors cannot give a warranty to act in a perfect manner or a guarantee of cure to the patient. If the doctor has adopted the right course of treatment for the patient, is skilled and has worked with a proper method and manner that suits the patient at best then she/ he cannot be blamed for negligence even if the patient is not totally cured as stated in the case of Savitri Devi v. Union of India [21].  

Conclusion

Medical negligence is the misconduct by medical practitioners or doctors by not providing enough care and taking proper safeguards or measures resulting in the breach of their duties harming the patients. It occurs because of improper, unskilled or negligent treatment provided to the patients. Every medical professional or doctor has a duty of care towards their patients and when they commit a breach of this duty of care it causes injury to the patients and gives the patient’s right to bring an action against negligence. The act of medical negligence results in civil liability, criminal liability and disciplinary action.  

References

[1] SA. No. 832 of 2000(G).

[2] 1969 AIR 128, 1969 SCR (1) 206.

[3] 2000 5 SCC 182:: AIR 2000 SC 3335.

[4] II CPJ 342 UP S.C.D.R.C., 1998.

[5] AIR 2010 SC 1050.

[6] CPJ 436 Chandigarh S.C.D.R.C., 2000.

[7] 1996 AIR 550, 1995 SCC (6) 651.

[8] (2014) 1 SCC 384.

[9]  1975 36 STC 439 AP.

[10] C P J 586 Tamil Nadu S.C.D.R.C., 1998.

[11] 1955 SLT 213.

[12]  AIR 1969 (SC)128.

[13] 2002 (2) CPR 138.

[14] A.I.R. 2008 H.P. 97.

[15]  A.I.R. 2007 (NOC) 2498 (H.P).

[16] 2000 5 SCC 182:: AIR 2000 SC 3335.

[17] 2005 6 SCC 1.

[18] 1996 AIR 2111, 1996 SCC (4) 332.

[19] 1994 3 All ER 79.

[20] 1996 AIR 550, 1995 SCC (6) 651.

[21] IV 2003 CPJ 164.

The post Medical Negligence appeared first on iPleaders.

This article is written by Amandeep Kaur, a student of Symbiosis Law School, Pune. The author in this article has discussed the ethics which a public prosecutor or government attorney has or is supposed to have.

What are Ethics?

The first thing one should know is what exactly ethics includes. Ethics is the branch of philosophy or it can be said that ethics is a narrow concept whereas philosophy is a wider concept. Ethics are something which helps one to make decisions in life or which actually guides our lives in various ways. As every being has a different personality, similarly ethics are different for different beings. When clearly said what are ethics for one person may or may not be the ethics for others. For instance, drinking alcohol may not come under ethical values for one person but it can be ethical for the other person to drink alcohol.

What are Professional Ethics?

“Professional ethics can be defined as professionally accepted standards of personal and business ethics, value and guiding principles.” Professional ethics are actually what a professional is supposed to do during various faces of life. It can also be said that the standards or the basis on which a professional is supposed to take decisions are exactly what defines professional ethics. For instance, honesty is one of the most fundamental ethical values a professional should have. Every profession has ethical values and every professional involved in that profession should follow such ethics.

Professional ethics are different from general ethics in various characteristics. A professional should be an expert in his field which makes him different from a person who knows very little about that particular field. A professional is supposed to be competent and skilful. He should be updated with all the changes related to his field and should constantly keep researching. The most important thing is a professional should act in an ethical value, being a professional always creates various responsibilities which one must uphold.

Different Legal Spheres

There are various legal spheres. Some of them are specified below:-

1. Litigation
2. Corporate law (law firms and companies)
3. Public Prosecutor
4. Judicial Service
5. Intellectual Property law firms
6. Legal Academia
7. Alternative Dispute Resolution
8. NGOs and Think Tanks
9. LPO
10. Tax Law
11. Judge Advocate General
12. Legal Journalism

• Litigation– It is actually a way to settle a problem or some controversy between two or more persons, organizations and the State by taking that issue before the Honorable Court by either party involved in that issue for settling that issue through a legal method.  Litigation is not actually a legal method but a process which involves a series of steps leading to the judicial opinion which is said to be Judgment.
• Corporate Law– It is related to all the corporations, their formations, dissolutions, their operations, the contracts involved different corporations and conflicts among them.  According to the Consumer Protection Act of 1986, a corporation is a legal entity. A lawyer pursuing a career under corporate law will be working for a high profile corporate. This field rarely includes courtrooms and related tasks.
• Public Prosecutor– It is also a kind of lawyer who does not work on its own instead represents the government or acts on behalf of the government in the court. The word Public Prosecutor itself defines a lawyer of the government and he is against the accused in a crime. Public Prosecutor also looks after the police that they are following all the rules and regulations during the investigation conducted by them under a crime.
• Judicial Service– This generally includes all the judges at different posts. All of them have the same work i.e. of giving judgments but their powers differ from each other. The decision of the Supreme Court is binding on all courts and similarly, decision of judges of the High Court is binding to all the lower courts. Whereas the judges of the lower court do not have such power.
• Intellectual Property Law Firms– These are the ones in which lawyers protect the different intellectual property of different firms. Intellectual Property is actually one of the branches of Corporate Law.
• LPO– “Legal Process Outsourcing is the industry in which in-house legal departments or organizations outsource legal work from areas where it is costly to perform, such as the United States or Europe to areas where it can be performed at a significantly decreased cost, primarily India.”  This field is rapidly growing for the past 10 years.
• Judge Advocate General– The Indian Army has their separate legal advisors which usually consist of military persons who are the legally qualified officers. As the Indian Army has its different laws and justice according to them differs from justice for the public. Therefore they have their own branch to look after the legal issues and give legal advice to their commanders.     

Ethics for a Public Prosecutor

A perfect Prosecutor must think about herself/himself as a specialist of equity. In India, we have an open prosecutor who acts as per the directions of the judge. Typically, control of the whole proceeding is in the hands of a preliminary judge. An examination is the right of the police. The general public prosecutor in India does not appear to be a promoter of the state as in the prosecutor needs to look for a conviction at any cost. The prosecutor must be unprejudiced, reasonable and honest, as an official as well as on the grounds that the prosecutor has a place with the good calling of law, the morals of which request these characteristics. In India, the criminal equity framework should work inside the system of the Indian Constitution. Concisely, the standards articulated in the Constitution are as infra:

• Assumption of blamelessness- Accused should always be presumed to be guiltless.
• Equality- The certification of equity under the steady gaze of law.
• Break even with Protection- Each and every accused to be given equal insurance of the laws. The blame on an accused must be demonstrated after all predictable doubts are cleared.
• Double Jeopardy- Protection against double jeopardy to be given to the accused.
• Disallowance of discrimination- Prohibition of discrimination forced upon the State.
• The privilege of the charged to stay quiet.
• Capture/detainment must be as per law and legal rules.
• Speedy Trial.

The Role of the Public Prosecutor

It is not the function of a Public Prosecutor to resolutely look for a conviction paying little heed to the confirmation however his/her central obligation is to guarantee that equity is conveyed. The Indian legal system has not specifically mentioned the role of a Public Prosecutor but after analysing several cases it can be observed that:

• The perfect Public Prosecutor isn’t worried about securing the conditions imposed on him by different departments of the State Government with which she/he has been in contact. He should think about herself/himself as a specialist of equity. The Allahabad High Court had decided that it is the obligation of the Public Prosecutor to see that equity is vindicated and that he ought not to get a corrupt conviction.
• A Public Prosecutor ought not by declaration infuriate the argument against the accused, or hold back a witness since her/his confirmation may weaken the case for the accusation. The main function of a Public Prosecutor is to help the court in finding the truth. A Public Prosecutor has to maintain a deliberate distance from any procedures liable to threaten or unduly impact witnesses on either side.
• A Public Prosecutor should put under the watchful eye of the Court whatever confirmation is in her/his ownership. The obligation of an open Prosecutor isn’t only to anchor the conviction of the blamed no matter what, however, to put under the watchful eye of the court whatever proof is in the ownership of the accused, regardless of whether it be agreeable to or against the accused and to leave the court to choose all such confirmation, whether the accused had or had not submitted the offence with which he stood charged. It is as much the obligation of the Prosecutor as of the court to guarantee that full and material facts are quickly recorded so that there probably won’t be premature delivery of equity.
• The obligation of the Public Prosecutor is to speak to the State and not to the police. A Public Prosecutor is a vital officer of the State Government and is selected by the State under section-24 of Code of Criminal Procedure, 1973. She/he isn’t a piece of the examining office and is a free statutory expert. She/he is neither the mail station of the examining office nor its sending office, yet is bound by a statutory obligation.
• The motivation behind a criminal proceeding isn’t to support a hypothesis, but to research the offense and to decide the blame or blamelessness of the blamed and the obligation for the Public Prosecutor is to speak to not the police, but rather the State and her/his obligation ought to be released by her/him reasonably, manly and with full awareness of others expectations that connects to her/his position. There can be no way of uncertainty that Parliament proposed that Public Prosecutors ought to be free from the control of the police officer.
• A Public Prosecutor should fulfil all of his obligations imposed on him by the State and shall make sure that justice is served. He cannot be forced by police to reveal any facts or any information regarding the accusation but he is answerable to the State if called upon.
• The Andhra Pradesh High Court had decided that trial ought not to mean oppression and it is the duty of the Prosecutor to be careful and reasonable for the accused and not to look for the conviction of the accused in every one of these cases. It additionally expressed that it is the duty of the courts to see that the decision of declaration of a guilty party ought not to be given to a private gathering. The Court likewise said that if there is nobody to control the circumstance when there is a probability of things turning out badly, it would add up to an illegitimate way of declaring the punishment for an accused.
• A Public Prosecutor can’t show up for the benefit of the charged. It is conflicting with the morals of legitimate calling and reasonable play in the organization of equity for the Public Prosecutor to show up for the accused.
• It is an obligation on the Public Prosecutors to highlight the reality for the steady gaze of the court. Reasonable proceeding means a proceeding under the watchful eye of a fair-minded Judge, a reasonable Prosecutor and air of legal quiet. The Prosecutor who does not act decently and acts more like a direction for the resistance is an obligation to the reasonable legal framework.
• The District Magistrate or the Superintendent of Police can’t arrange the Public Prosecutor to move for the withdrawal, in spite of the fact that it might be available to the District Magistrate to convey to the notice of the Public Prosecutor and recommend her/him to consider whether the charge imposed on the accused should be pulled back or not. Be that as it may, the District Magistrate can’t order and can just prescribe on this matter.

Present situation of Public Prosecutors

• Zahira Habibullah vs. State of Gujarat, where the direct of the ”BEST BAKERY” case in the Hon’ble Gujarat High Court, including the torching of a foundation in Vadodara which caused the demise of 14 people, came up for thought under the steady gaze of the Hon’ble Supreme Court, prompting what Rajeeva Dhavan has portrayed as ” The severest trial ever of the Justice and administration framework of any State”. The Hon’ble Supreme Court requested retrial of the issue in The Hon’ble High Court of Maharashtra, and saw that in Gujarat, ” The Public Prosecutor seems to have acted more as a guard of the accused than one whose obligation was to introduce reality under the steady gaze of the Court”.
• In R K Jain’s case,  the Hon’ble Supreme Court held citing Shamsher Singh v. Territory of Punjab, as regarded, the importance and substance of official forces tend to regard people in general prosecutor’s office as official. Be that as it may, the conclusion of a few courts makes the question as to its correct nature. To the proposal that people in general prosecutor ought to be unbiased (a legal quality), the Kerala High Court correlated the general population prosecutor with some other insight and reacted accordingly: Every material evidence and fact which is to be represented in the court of law is required to be reasonable and honest. He should obviously, advocate the reason for his client as proficiently and adequately as could be allowed, yet reasonably honestly. He isn’t relied upon to be unbiased yet quite reasonable and honest. [Aziz v. Territory of Kerala (1984) Cri. LJ 1060 (Ker)]
• In Jitendra Kumar Ajju vs. State (NCT of Delhi) Crl. W.P. 216/99, Delhi High Court, it was seen that In the Criminal Justice System that the role which is performed by a Public Prosecutor for the State has been portrayed as a role of Minister of Justice who assumes a basic part in keeping up innocence and biases in the field of organization of criminal equity.

What is an Obligation for the Public Prosecutor?

The commission of a criminal demonstration is regularly viewed as an offence against the State which is managed by the Criminal Justice System of the State Executive. In this way, on an exhaustive examination of the above statement, it is completely clear that it isn’t the obligation of Public Prosecutors to ensure conviction at all cost. Nor, is their obligation to go about as an avenging plot for the casualty. Despite what might be expected, their major obligation is to guarantee that equity is conveyed and incompatibility of, this they should lay under the watchful eye of the court all significant confirmation including the proof that supports the charged.

End product to this is the obligation of a Public Prosecutor to convey to consideration of the Court, any issue that the police officer could have raised, however, has neglected to do. In any case, in doing as such, they can’t go about as though they are protecting the casualty, nor would they be able to show up for the benefit of the charged. At the point when the Prosecutor proves in a way as though she/he was protecting the accused, at that point, there is no reasonable proceeding.

Rules on Professional Standards of Advocates as mentioned by the Bar Council of India

There is no mention of a specific code of conduct for government attorneys. But there are some rules mentioned by the Bar Council of India in Chapter II, Part VI of Bar Council of India Rules which are common to both private advocates and government attorneys. These rules are also placed in sec-49(1)(c) of the Advocates Act of 1961. All these rules are mentioned below-

Rules on an Advocate’s Duty towards the Court

1. Respect the court–  An advocate should always keep in mind that maintaining respect and dignity towards judicial office is necessary for the survival of a free community and therefore it is essential for an advocate to always show respect towards the court.
2. Refuse to act in an illegal manner towards the opposition– It is one of the rule that an advocate should always act in a fair and unbiased manner even towards the opposition party. He should also try its best to stop his client from adopting any illegal or improper methods.
3. Appear in proper dress code– An advocate should always appear presentable and in dress code as prescribed by the Bar Council of India.   
4. Not to wear bands or gowns in public places– An advocate should never wear his gown or band in any public place unless there is any ceremonial event or event prescribed by the Bar Council of India or court.
5. Not to appear in matters of pecuniary interest- Where an advocate has any pecuniary or financial interest it is a rule that he should not plead for that matter or act in any way regarding that matter. For instance, he should not plead in a matter of bankruptcy where he is a creditor of that bank.

Rules on an Advocate’s duty towards the Client or the Party

1. Not to withdraw from service- An advocate one agreed for serving should not except in special circumstances withdraw from serving his client or the party.  
2. Not to suppress material or evidence– An advocate should play fair and should not exercise any unfair practices which lead to the conviction of an innocent and acquittal of the accused. He should not try to suppress any material or evidence related to the case which can bring a remarkable change in the case.
3. Not to disclose communications between client and himself- It is popularly known as a contract of disclosure which is an implied contract under sec-126 of the Indian Evidence Act, 1872. This section imposes a mandatory obligation on an advocate to not to disclose any information shared by his clients or the party.
4. Full and frank disclosure– It is one of the rules that an advocate should disclose about his connections with the parties if any. He should make full and frank disclosure to the party if he himself has any personal interest or in engaged in the case in some way. He should not forget to make such disclosure if his interest or engagement in the case is likely to affect the decision of the presiding judge.
5. Not to appear in matters where he himself is a witness– An advocate should never represent a party in a matter where he himself is a witness or he has a reason to believe that he might become a witness in due course of events.    

Rules on an Advocate’s Duty towards Fellow Advocates

1. Not to advertise or solicit work- An advocate is not allowed to advertise himself or solicit work in any manner such as by circulars, advertisements, touts, personal communications, interviews other than through personal relations, furnishing or inspiring newspaper comments or producing his photographs to be published in connection with cases in which he has been engaged or concerned.
2. Not to promote the unauthorized practice of law– It is the duty of the advocate to not permit the use of his professional services or his own name for promoting or initiating any unauthorized practice of law.

Reported Misconducts by Advocates

Contempt of Court as Misconduct

Contempt of court refers to an offence of disobeying any orders passed by the court or disrespecting the court of law. A judge has been given the authority that if someone is found guilty of contempt of court it can impose sanctions such as fine or jail. India has divided contempt of court into civil contempt and criminal contempt and sec-2(b) and sec-2(c) of Contempt of Courts Act, 1971 defines them respectively. Many cases have been reported of contempt of court by advocates and the recent one is that Apex Court of the Court held an advocate namely Mathews J Nedumpara guilty of contempt because he alleged that sons and daughters of judges were given priority over others’ in awarding the designation of “senior advocate”.  

Strike by Advocates

Advocates usually go on strike when their demands are unheard by the court of law or when they ask for some legitimate actions to be taken by the court but these conditions are not fulfilled. Whereas the Supreme Court had declared several times that lawyers cannot go on strike as it leads to the delay in delivering justice to the common masses. After advocates in Uttarakhand went on strike for 455 days i.e. from 2012-2016, the Supreme Court has decided to take strict action against the advocates or bar councils who passes a resolution for going on strike. Strike by advocates is one of the reasons behind huge pendency of cases in India.

Misleading the Court

One can normally find some advocates misleading the court by suppressing some material facts or wasting the precious time of a court by bringing up some frivolous issues in the court of law. Many such cases are reported on a daily basis and there are some cases in which the court has imposed fine on the advocate misleading the court, for instance, Madras High Court imposed a cost of Rs 10,000 on an advocate who filed a frivolous case in the court.  

Conclusion

A Public Prosecutor is an autonomous substance from police and police can’t arrange her/him to lead arraignment especially. Police, legislators or some other incidental gathering can’t impact her/his activities, including her/his circumspection to choose withdrawal of a case. The Public Prosecutor speaks to the State yet not the police and must be affected by open intrigue. Incompatibility of their obligations, open prosecutors ought not to utilize inappropriate techniques figured to create wrongful feelings and she/he should release her/his capacities in a conscientiously reasonable and fairway.

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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 the concept of Malicious Prosecution and its position in England and India. The author has also laid emphasis on the laws related to Malicious Prosecution in both the countries and discussed the important case laws related to it.

Introduction

With the continuous evolution of various legal systems across the globe, the noxious and malicious elements have also materialized themselves strongly and have continued. Their aim of launching attacks to weaken the legal machinery, by embarking upon them.

The tort of malicious prosecution is one such development which has spread its roots into the legal systems and has at times made it look like it is not the legal system which is good enough to deal with issues of such magnitude. Even though the adversarial procedure of the court hearing demands that facts be produced along with justification which in the legal sense would be deemed as enough for supporting the cause. Even if after scrutiny of such facts the bench or the magistrate dismisses the claim, measurable damage has already been done.

As it is an established fact that society punishes an individual more than the law, it is more evidently seen in issues of this nature where the victim of such suit (defendant in original suit) faces stigmatization in every sphere. Though over the years the courts of UK have come up with remedies and various provisions, courts in India are still busy dealing with a backlog of such cases, because of which any concrete, as well as an effective way, has failed to materialise itself in the legal system.

What do you mean by the term” Malicious Prosecution”?

The term ‘Malice’ in common parlance means ill-will against a person. In the legal sense, it refers to a “wrongful act done intentionally without just cause or excuse.” The term prosecution means “ a proceeding in a court of law charging a person with a crime”.

‘Malicious Prosecution’ means” a prosecution on a charge of crime, which is willful, wanton or reckless or against the prosecutor’s sense of duty and right.”

Concept of Malicious Prosecution

Settling tools or as to bring someone down to the negotiation table to obtain pecuniary benefits. The prominent and most common of all the remedies for such a victim are cross suits claiming damages for initiation of a malicious suit. Such suits have become prominent and to name a few can be seen in the recognition of the tort of malicious prosecution has been done to act as a safeguard for individuals, dealings with such claims which are known to the complainant as false and are mostly based on wrongful motive. Such suits have commonly come into play and are mostly seen as score cases of medical malpractice, suits under criminal offences, punishment for which is penal in nature and a few suits under various other acts.

A defendant (plaintiff in the original suit) must prove reasonability in filing such suits and, must provide such facts which would have led any person in his place acting rationally to come to the same conclusion as he came upon when he filed the suit. A person while bringing forward a suit claiming damages for suit filed maliciously must prove that he was acquitted by a competent court and the filing of such suit was done by the original plaintiff (defendant in this case) without any reasonable and probable cause.

While the question of probable cause arises, a defendant cannot claim that he initiated prosecution under the order of a competent body which itself was moved by the intel provided by such individual, for the cause of justice would be defeated and any person claiming so could evade the law and simply walk away.  However, a person acting upon the information provided to him by any competitive person, if acts on such advice and files a suit, he would not be held liable for, the element of malice was absent and anyone in his shoes would have acted similarly upon presentation of such facts before him.

In cases where there was suspicion, of cognizable offence this, however, would not be a good cause of action as suspicion and claim must be differentiated the former being based on facts which would have led any person to believe in possibility and not outright presence of guilt. Determination of the fact, who the prosecutor is, essential while bringing a cross suit claiming damages for such prosecution. A prosecutor is that person who set the law in motion, it can be an ordinary person, an individual associated with the administration or for instance police, or even a magistrate but, the rationale isn’t who proceeded but who was it that instigated or initiated the claim. A judicial authority can only be said to be a prosecutor when it can be proved without any doubt that he had knowledge that the claims were false or he had an element of disbelief in relation to the facts of the case but still proceeded with it.

A person can however, be deemed to be a prosecutor when he filed a suit alleging such facts which he had reason to believe are not substantially true and based on those facts the magistrate ordered a probe and the defendant in that suit was prosecuted. A point must be clearly understood that the mere filing of a complaint viciously would not usually amount to the tort of malicious prosecution if, the magistrate dismisses the complaint as disclosing that to be no offence, this wouldn’t be a prosecution but a failed attempt to set the criminal law into motion.

As has been outlined in the case of Mohammed Amin V. Jogendra Kumar it would be a prosecution when the Magistrate takes cognizance of the complaint which then is followed by an examination of such complaint by means of inquiry in open court under sec 202 of CrPC the prosecution is deemed to have commenced. Various courts across the globe have had their views of what can be called as a prosecution which has not been solved but further added up to the pre-existing ambiguities regarding the same.

The Bombay High Court in Ahmedbhai V. Framji observed the commencement of prosecution shall be deemed to have begun not when the magistrate takes cognizance and acts as per the provisions but, when he is approached, and a complaint has been made maliciously with a view of such a complaint being entertained by such magistrate. However, a prosecution cannot be said to have been initiated unless there have been processes issued by the magistrate with respect to such a complaint, which too has been affirmed by the Calcutta and the Madras High Court.

For a successful claim for damages of malicious prosecution, it has been held by the courts that the original prosecution must have been for an offence which is criminal in nature and which is punishable by imprisonment and fine or both. This has been a drawback of the legal system of India, which has failed to acknowledge the fact that multiple times there is enough damage caused to the individual’s repute even though the prosecution is for a civil wrong, but the courts in India have ruled out that possibility in various instances. This development has been seen in England that irrespective of the nature of the complaint, whether it is one of criminal or civil nature, a suit for malicious prosecution will be maintainable.

However, for a suit which is demanding damages for malicious prosecution for a civil complaint, the plaintiff would have to show special damages which were incurred by him in maintenance of such suit against him. This has again been held in a recent English case that it would not be just a limitation of law for nor being able to maintain such suits claiming damages for a suit filed maliciously under any civil act, but it would be severely unjust on behalf of the victim of such suit.

Time and again the needs have been voiced for the recognition of claims for a suit filed maliciously under civil laws but, neither the judiciary nor the law-making body has taken steps to address such problems being faced by the public at large. England has been updating its laws as per the time demands but, the laws in India are nowhere near what could be called a competent law to deal with such claim.

What are the essentials required to constitute Malicious Prosecution?

In an action for malicious prosecution, the plaintiff has to prove that –

1. He was prosecuted by the defendant.
2. The defendant acted without reasonable and probable cause.
3. The defendant was actuated with malice
4. He (the plaintiff) was acquitted
5. He (the plaintiff) suffered damage.

• Prosecution– The plaintiff has to prove that the defendant instituted a false criminal proceeding against him before a judicial, quasi-judicial authority or a tribunal.
• Without reasonable and probable cause– The plaintiff has to prove that the defendant prosecuted him without reasonable and probable cause.
• Malice– The plaintiff has to prove that there was malicious intent on the part of the defendant in instituting criminal proceedings against him.
• Acquittal or Termination of criminal proceedings– The plaintiff has to prove that the criminal proceedings against him were terminated and he was acquitted. An action for malicious prosecution cannot be maintained if the plaintiff is convicted.
• Damage– The plaintiff has to prove that he suffered loss or damage or injury as a consequence of the prosecution complained of (by the defendant). The damage may be with reference to the plaintiff’s person or property or reputation.

Illustration- A makes a false complaint against B, alleging that B had committed theft with a view to compel B to deliver some property to him. Here A is liable for Malicious Prosecution.

How Malicious Prosecution can be distinguished from False Imprisonment?

False Imprisonment                                  

It imposes total restraint upon the personal liberty of a person. It is procured by a private individual or by an authorised official by asserting legal authority and is prima facie, a tort. There need not be any proof or malice on the part of the defendant.

Malicious Prosecution

It does not impose total restraint upon a person. It is procured by judgment or judicial order.

It is not a tort by itself. Further, in the case of Malicious Prosecution, the plaintiff has to prove malice on the part of the defendant which is not a case in false imprisonment.

Position in England

Until recently, defendants who were successful in defending a malicious claim, the nature of which was civil, did not have any redress. The rationale reiterated by the bench while passing the judgements used to be that the successful defence of a claim merely should not give someone a cause of action for claiming damages for that suit being malicious in nature and filed without any reasonable belief, just to make the defendant undergo ordeals. A person usually has remedies if the suit filed was criminal in nature as such a suit had potential to cause calculable and graver damages to someone’s goodwill and lower his image in the eyes of such members of the society who considered such individual a person of good virtue. This is not something new, rather it has been done on numerous occasions when the ambit of the tort was widened, one such instance is a suit filed under the Companies Act 1862 which shall be further reviewed for a better understanding of how the tort evolved in England.

In, The Quartz Hill Consolidated and Gold Mining Company, the facts were that the defendant, a shareholder in the plaintiff company and approached a broker to sell the shares owned by him for which the deed was duly signed by him and handed over to the said brokers. The shares could not be sold for some reasons and the defendant was informed of the same, however, the papers of transfer were not returned to him. Based on this fact he filed a suit after waiting for around 10 days for winding up the company and cited reasons of incompetence. The defendant was an owner of 100 shares of the firm each of whose value was 1 pound, but the valuation at the time of the sale of the shares fell to approximately 1/3 of it. The defendant claimed in the London Gazette that the company was offering properties in Colorado, United States of America for much more than their actual valuation in order to benefit from it and gain a promotion in the market. It was also alleged that their prospectus falsely claimed that the mining ventures they were putting up for sale was too valuable and would be a good investment for someone.

Later, the person was informed that the shares had been sold and hence he ceased to be a shareholder in that company to which he responded by sending a notice to the court requesting the dismissal of the suit filed by him which was eventually dismissed by the courts at no extra cost. This had an adverse effect on the business of the company and it hit a further low of 30% as the article published by the defendant brought disrepute to the firm and also, it went on to lose the trust of the investors owing to such articles defaming the company. Hence, they brought a suit against the defendants for wrongfully and maliciously filing a claim under the companies act which resulted in loss of business.

This being a suit of civil nature the remedies were limited, and the court held at first that no damages could be awarded and negated the claim keeping these parameters in mind firstly, there was no evidence which could show special damages secondly, there was no evidence of malice on the part of the prosecutor and thirdly, no action of this kind could possibly lie under any such circumstances. However, a suit would probably lie under a claim alleging a claim which was brought forward wrongfully but the above-mentioned parameters were not one of those. It was proved beyond doubt that there was some mismanagement in the affairs of the company and these circumstances are grounds which are enough as to the situation in which the defendant was as he bona fide brought forward this claim and not under any ill will.

It might be argued that mistake of fact is not an excuse under such a claim, but it can also be argued that there was an absence of an intention to injure the plaintiff company which for a suit of such nature to succeed is a prime requisite. Under this when a suit is dismissed a judge might award a company nominal damages as per the act. This claim resembled the want of adjudication under The Bankruptcy Act 1869 and as it was an analogous claim to one under the bankruptcy act, it would be maintainable. Any person who wrongfully sets either criminal or civil law in motion viciously shall be deemed as liable.

The court said it was vexatious for someone to bring a suit against someone just because the company had failed in the objective for which it was originally formed. The bench citing various other reasons dismissed the suit as not good enough to be granted any damages for maliciously filing a suit for winding up the company. Although the court held the defendant liable for bringing a suit on unreasonable grounds which injured the credit of the company the bench in unanimity rejected a claim to award special damages to the firm as they could not after thorough inspection not conclude that liability to pay any extra cost could be a ground for legal damage

Position in India

There are provisions in India for dealing with malicious proceedings of only criminal suits and a claimant usually has no remedies if such proceedings were instituted under any civil law other than any Municipality Act. As has been seen in England cases of such a nature are given a greater degree of importance, the backlog of cases and other drawbacks such as ways those are not only illegitimate but also draw a calculable degree of mockery on the legal system itself. Such cases drag for years and sometimes decades and the ordeal of the claimant turns out to become graver as time passes and he/she is left without a remedy but, must bear the expenses in maintenance of suit.

The English legal system has been flexible enough as per the changing times but the conservative approach of Indian lawmakers hasn’t really worked out for the public good as there are still no remedies for such civil claims which defame the person and one can only claim for damages when he/she can show such damages which in the eyes of the court would be called as special damage which should be causa causans of the complained act. The rationale of prosecution is a bit different than that in England, it is deemed to be a prosecution when it has reached a stage where calculable damage has been caused to the party defending that suit. For a detailed insight into the concept, we reviewed a judgement by the Calcutta High court which later went on to be cited while deciding many other cases.

In Mohamed Amin V. Jogendra Kumar Banerjee and others agreement was entered upon by the appellant and the first respondent for sale of a few commodities to a company which was to be formed by the first respondent. In the process, the first respondent incorporated a second respondent for carrying out the purchase and half of the agreed goods were transferred by the appellant. Later it was discovered that the respondent had breached the terms of the agreement which was entered upon, as a result of which the appellant refused to honour it and did not transfer the remaining goods. As a result of which the second respondent acting in his personal capacity and on behalf of the other respondent filed a suit under section 405, 420, and 422  of the Indian Penal Code and demanded that he be answerable to such charges. The magistrate held an inquiry in an open court attended by the appellant and dismissed the claim stating there is no cheating committed in this case and breach which exists is of purely civil nature.

The appellant brought forward a suit for malicious institution of criminal proceedings against him, to which the judge affirmed but observed the bench must stick to an earlier judgement by The High Court of Judicature of Calcutta in Golap Jann V. Bholanath khettry where it was observed that it cannot be deemed as prosecution if there is no issue of any processes or where the complaint was dismissed by the magistrate upon inspection of the complaint, citing the above precedent the claim of the appellant was dismissed which the bench observed to be rightly decided.

How can India deal with malicious suits?

As it has been observed in England, how voids were filled in the landmark case of Willers V. Joyce, similar steps can be taken in India as well. The judges have the independence of evolving new laws or filling voids in between the existing laws which might turn obsolete as time passes. Law is a living entity and like all other living entities, it cannot remain the same and must go through a state of transition when the society needs it to. In India suits nature of which are malicious are mostly criminal and an absence of remedies for a suit filed maliciously under civil laws is of least concern over here but the laws governing the suits of criminal proceedings are also insufficient. One such example is poorly drafted women laws. Many women till date have capriciously filed suits to obtain benefits but the victim of such suits has got no remedy.

The Indian legal system has over the time failed to address actual authentic cases and this can only be changed if the judges while deciding a case leave their conservative approach behind and evolve laws of which they have got absolute discretion. The courts must stop revisiting the incongruous judgements and turn towards framing new laws as per the changing time demands. One such instance can be discarding the doctrine which defines what can be called as a prosecution as it always differs from case to case, for instance in a suit inquiry might inflict sufficient amount of insult onto someone and successfully bring down their image whereas, in another case a complaint itself might have a potential to bring harm to someone’s reputation in the society of which such individual is an inhabitant. Not only should remedies be a concern for the courts’ measures such as taken by China must be taken wherein a person filing a suit of which he has knowledge to be false is heavily fined and such individual is also then barred from appealing to the court for a substantial amount of time.

Indian lawmakers should plan on setting up a Criminal Cases Review Commission as has been set up by the United Kingdom for review of criminal cases to discover whether there has been miscarriage of justice. The commission works exclusively for ascertaining if there has been miscarriage of justice in cases by scrutinizing the facts and upon finding such a scenario where there is sufficient proof endorsing a claim where justice has not been delivered in the way it should be those cases, are then referred for appeal along with their reports.

Though there have been observations made by the apex court on several occasions while dealing cases of malicious prosecution where justice has not been delivered yet, the lawmakers have failed over and over again to capitalise on that fact and has miserably failed to come up with a legislation or for the instance even amendments which would serve for the cause in the short run and at the same time is used to frame relevant laws by conducting further research as to what is best suited to the legal system of India. It is often blamed on the courts when such fiascos occur but, if one analysis carefully it is the authority charged with carrying out such investigation, neglect on whose part has amounted to perversity and on the contrary have paved the way for forces which are gaining an upper hand for more such fiascos.

There has been a flagrant violation of the idea of natural justice as all these attempts to set the law in motion wrongfully to satisfy their plebeian selves and are going unpunished as the redresses available to the victims are not only scarce but also outrightly inefficient. The perpetual instances have been alarming enough and the need is now being felt more than ever before for competent legislation, which would deal with such acts.

Conclusion

The recognition of the tort of malicious prosecution has been done to safeguard individual interests, dealings with such claims which are known to the complainant as false and are mostly based on wrongful motive. The malicious suits which have been on the rise, in absence of a concrete legislative framework which could help arrest, these trends where the legal procedure is being abused in order to gain wrongful benefit by subjecting parties to suits which are filed with a capricious intention. As there are no legal provisions which exclusively deal with such cases where there has been a miscarriage of justice, the article has scrutinized the legislative framework of England and also the approach of the courts over there, when it comes to dealing with those suits.

Bibliography

• Bangia, RK (2017). Law of torts, 24th edition.
• Ratanlal & Dhirajlal (2016). Chapter XIII. Law of torts, 26th edition.
• Hay, Douglas C (1989). Prosecution and Power: malicious prosecution in English courts, 1750-1850
• Goudkamp, James (2017). A tort is born: a practical perspective of the tort of malicious prosecution of civil proceedings.
• SCC Online, http://www.scconline.com
• Law Commission of India (2017) report 277: wrongful prosecution (miscarriage of justice)- remedies.
• Kisner, Pearl (1976). Malicious Prosecution: an effective attack on spurious medical malpractice claims.
• Harper, Fowler v. (1937). Malicious Prosecution, False Imprisonment and Defamation.
• Mallen, Ronald E (1979). An attorney’s liability for malicious prosecution: a misunderstood tort.
• Byrd, Robert G (1969). Malicious prosecution in North Carolina.
• Okpaluba, C (2013). Reasonable and probable cause in law of malicious prosecution: A review of South African and Commonwealth decisions.
• White, AM (1966). Damages for injury to feelings in malicious prosecution and abuse of process.
• Garbett, Katherine & Karagoz, Mehmet. Fraud insight: malicious prosecution of civil claims.
• Shaw, Malcom N (2017). International law, Cambridge University press.

The post Malicious Prosecution- A comparative analysis of the position in England and India appeared first on iPleaders.

This article is written by Vineet Kumar, pursuing Diploma in Entrepreneurship Administration and Business Laws offered by Lawsikho as part of his coursework. Vineet is Presently working as ‘Dy Head of Representative Office, Hanoi, Vietnam’ for Bharat Electronics Ltd India, a Navaratna Public Sector under Ministry of Defence, Govt of India. 

Background

Self-reliance in defense production has been the aim of India’s defense production strategy since the 1960s. Significant progress has been made in the domestic defense production. Private sector and public-private partnership through Joint Ventures (JVs) / Foreign Direct Investment (FDI) has also joined the national effort to build domestic defense and aerospace industry. However, it is also true that despite a few major achievements of our defense and aerospace production ecosystem, an important part of our defense requirements continues to depend on imports. India has become one of the largest importers of defense goods and services in the world. It needs to change. The vibrant domestic defense industry is an important component of effective defense capability, and to maintain national sovereignty and gain military superiority.

The Directorate General of Quality Assurance (DGQA) is an organisation under Department of Defence Production, Ministry of Defence is the regulatory authority for Quality Assurance and final acceptance of military store at various Defence PSUs, Ordnance Factories and Private Firms. It also ensures QA requirements during the acquisition of defence stores by Ministry of Defence as per the provision of DDP & DPM. The primary role of DGQA is to provide QA coverage during various phases of the production/services and to assure user expectations. In addition to QA activities, the organization is responsible for import substitution and is affiliated with the Defense Research and Development Organization (DRDO) in the development projects. It also ensures documentation, codification and standardization action to reduce the diversity of components/devices. Other services provided are promoting technical consultation to small industry, post procurement services, defect investigation and technical consultancy to users, ministry and production agencies.

Need for the Policy

Considering the government continuous effort toward self-reliance in the manufacturing of defence products, the Self-certification scheme assumes greater significance. The scheme is envisaged to promote ease of doing business to achieve the national vision of ‘Make-in-India’. ‘Green Channel Status is one kind of Self-certification status promoted by Govt. of India, Deptt. of Defence Production (DDP) to eligible firms to delegate the responsibility of certifying the Quality of specific products. OEMs take the full responsibility for the quality of such products as well as those of their Indian subsidiary and channel partners in case of foreign company.

Click Above

In a fast-moving world of technology, time and quality have emerged as the deciding factor in any manufacturing industry. It is necessary that Defence Suppliers should reduce the time of manufacturing and delivery of the final product with all quality assurance. Hence the objective is to promote the culture of in-built quality in systems and products for better reliability at the same time reduce the processing time for procedural and administrative delays by multiple agencies involved in quality assurance process of the military store.

Eligibility Criteria

This scheme is open to all Indian firms, Defence Public Sector Undertakings (DPSUs), Foreign firms having a manufacturing facility in India, OEM outsourcing the products in their own name/brand and OEM having wholly owned Indian subsidiary. The firm should have an annual average turnover of Rs.1000 crore or more during last three years and making a profit in at least three out of last five years These criteria is not applicable for OEM having wholly owned Indian subsidiary.

Application Process

All the firms that meet the above eligibility criteria will be considered for green channel status and will be allowed to self-certify specific products. However, critical stores for Air-Borne applications, which are governed by Airworthiness certification and QA regulatory requirements, are excluded from the provisions of supply under their self-certification. Criteria/parameter will be decided by DGAQA / CEMILAC to provide green channel status for such stores.

Eligible firms are required to submit the application form and related documents according to the prescribed format. Green Channel Status will be granted for specific products. OEMs will take full responsibility for the quality of such products as well as their Indian subsidiaries and channel partners. Green Channel Firms are adhering to the terms and conditions set out in the contract and governing technical specification of the products. Indenter reserves the right of pre-dispatch inspection (PDI) or joint receipt inspection (JRI) in the specific case.

Accordingly, the eligible firm needs to apply for the grant of green channel status for broad categories of items having continuous requirement / mass consumption in defense forces. Grant of Green Channel Certificates will provide the status of deemed registration for the exemption of pre-dispatch inspections and the acceptance of the stores under guarantee/warranty against the contracts concluded by various procurement agencies under the Ministry of Defense.

Approval Process

Committee head by ADGQA /ADGAQA and members at director level from Principal Directorate, Procurement Directorate, User directorate and any other co-opted member are responsible for assessing the firm’s eligibility for Green Channel Certificate. The committee considers all issues related to the Green Channel, including the grant of green channel status, the revision of the items under the Green Channel. The committee or its authorized representative can go to the manufacturer’s facility to verify the ongoing production line and inspect the product. However, such trips may not be necessary during the validity period of the Green Channel Certificates.

The competent authority for grant of Green Channel status will be DG, DGQA/DGAQA. The compendium of Green Channel Firms/items along with Cert No., and its validity is placed and updated periodically on the website of both the DGQA/DGAQA. The Green Channel status of the firms/ items is reviewed by the Committee as and when required.

Registration Fee

The requesting firms need to pay Rs.1.00 Lakh plus service tax as applicable towards one-time non-refundable registration fee for Green Channel certification to PCDA New Delhi through demand draft. All certified firms with Green Channel certificates are required to deposit an irrevocable bank guarantee of RS.50.00 lakh as security deposit with concerned registering Date of DGQA/DGAQ. The Bank guarantee is required to be made in favour of PCDA, New Delhi, from any Indian Scheduled or its affiliated Banks with the validity of 39 months.

Certificate Renewal

Green Channel Certification will be valid for a period of five years from the date of issue/renewal. Application for renewal should be applied 90 days before the expiry of the validity period. The status of the original Green Channel will be considered valid, provided that the renewal has been implemented at least 90 days before the expiration date and Rs 50 lakhs of bank guarantee has been extended. The renewal will be based on a satisfactory response from the user.

Recurring Defect & Penalty

All customer complaints will be brought to the notice of the committee. In the case of recurring defects during the exploitation/defect investigation, the Green Channel Committee can take one or both penal action of the monetary penalties up to Rs 50 lakh and removal of the company from the Green Channel list for a minimum period of three years. DGQA / DGQA allows green channel firms to be called for participation in fault/defect investigations with respect to their products as required.

Pragmatic Scenario for Policy  

Defense products for the Armed Forces are procured ex-import and manufactured indigenously by the Ordnance Factories / PSUs / Private Industries. Under the Government’s ‘Make in India’ initiative, the defense sector is getting the requisite impetus and support for the development and manufacturing of defense products. Increased participation of the Indian industry in the manufacture of defense products will increase the duties of the Directorate General of Quality Assurance (DGQA) organization, thus there will be more pressure on the available resources.

At present, the DGQA is the main Quality Assurance (QA) organization with the responsibility of ensuring the quality and reliability of defense products for both indigenously manufactured and procured ex-import. In view of possible increase in the workload of DGQA in the near future, the resources available may not suffice and hence need to be increased through certain QA functions to eligible Government / Private bodies. Accordingly, the policies like Green Channel Certification, recently released Self Certification and Third-Party Inspection (TPI) to perform Quality Assurance (QA) Functions pertaining to Defence Stores are the major initiatives by the department of defence production.

In India, the defense forces have to work in the most difficult and inaccessible areas in various climatic conditions. The temperature difference between Thar to Siachen is more than 100 degrees. Both soldiers and equipment have to be rugged enough to tolerate this difference in terrain and hostile climate. In this way, it is mandatory that the equipment should be of excellent quality at the hands of the soldiers and besides being rugged, they should have high reliability too. Therefore, to ensure these aspects, the QA of the equipment should be focused and concentrated. For the effectiveness of QA process, the continuous monitoring of QA inspections done at the time of purchase of equipment is required, feedback from the customer on product quality to be obtained, gaps in quality to be identified and addressed to fix loose ends and fill gaps for future improvements.

Final Say

The initiatives of Green Channel and Self-certification are giant steps from the industry point of view and toward the ‘Ease of Doing’ business commitment of the government. These entire policies look to have been drawn with considerable thought with the purpose of timely supplies of defence stores, which are not only critical but also very essential to national security. However, the success of these policies lies with DGQA strong Quality Audit Process, user feedback, further analysis and improvement of these policies with time and experience.

 Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

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This article is written by Advocate Nishit Paul, pursuing M&A, Institutional Finance and Investments Laws(PE and VC transactions) from LawSikho. Here he discusses what is Diversion and why it is necessary.

Introduction

The Law in reference to this Article is taken from Madhya Pradesh Land Revenue Code, 1959. The law of Land Revenue is an exchequer for the holding of State land and the payment for the holding of land to the State Government. The Land Revenue Code lays down the procedure on how the Land is to be assessed and the Revenue to be levied on the Holder of the Land. The Land is charged according to its use by the Holder as per the latest assessment of the land and in case the Holder has to change the Use of the Land or purpose then a Diversion of land is needed to be done. Generally, the land use is changed from agriculture to non-agriculture purpose. This Article will discuss how the diversion is done and its procedure before the Revenue Courts and why it is necessary to be done.

What Is The Object Of Diversion?

First we need to understand the object of Land Revenue; it is a comprehensive Code which encompasses all aspects pertaining to the land. The scheme of the code related to ownership of all lands is vested in the State and the Government has to power to make rules in pursuant of ownership and ‘land revenue’ which has been discussed, the whole code in brief here.

A Diversion happens when the holder of the land redefines the use of the land from agriculture to a non-agriculture purpose. Therefore, the law defines two sets of ‘land use’ accordingly Agriculture and Non-Agriculture use of the land.

• Conditions for Diversion

For the purpose of Diversion, an assessment for the land is done as per the use of the land, the holder has to determine the use on the following grounds or purpose:-

1. In case the purpose of agriculture, a farmhouse being situated on the holding of one acre or more;
2. A site for dwelling house purposes.
3. For an educational purpose.
4. For Industrial purpose.
5. For the commercial purpose.
6. For the purpose of mining under a mining lease within the meaning of the Mines and Minerals (Regulation and Development) Act, 1957.
7. For the purpose other than those specified from the above points.

Where the said land before diversion was free from land revenue or there was no land revenue charged upon it after diverting it into any one of the above purposes it shall be liable to the payment of land revenue and assessed in accordance with the purpose to which it has been diverted.

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The land revenue shall be charged as the land assessed for the use for any one of the above purpose and to be diverted into for that purpose. The land revenue will be as upon the last assessment which has been fixed and has not expired that will be levied according to the purpose to which it has been diverted.

• The Assessing Officer

Sub-Divisional Officer shall be the Assessing Officer who is to be referred for the alteration or assessment to be carried out.

• Some Concessions In Special Cases

1. Charitable Purpose: A premium will not levy for the diversion of land for a Charitable purpose.
2. Micro Small and Medium Enterprise (MSME): In case of MSME, only half of the assessed land revenue shall be payable for a holding up to two hectares used exclusively for the purpose of an MSME.
3. Diversion to Agriculture Land: No premium shall be levied in case the land is diverted back for Agricultural purpose and shall be avail all the benefits under the law may prescribe.
4. Dwelling House: No premium shall be levied in the diversion for residential purpose of dwelling house in a non-urban area of which area is less than 100 sq.meter.

How Assessment and Premium Is Calculated?

The fixation of the fees and the premium on diversion of land is done as per the rules framed by the Government as provided under ‘Rules Regarding Alteration of Assessment and Imposition of Premium’, the notification was last published on 10th July 2014 by Revenue Department of Government of Madhya Pradesh. The following are the conditions for the assessment and calculation of premium:

1. Alteration of Assessment

1. When land already diverted to a non-agricultural purpose and re-assessed on that basis is re-diverted to an agricultural purpose, the assessment as re-fixed shall be equal to the agricultural assessment on the land as fixed as per the last settlement.
2. When land already diverted to a non-agricultural purpose and assessed on that basis is re-diverted to an agricultural purpose and there is no agricultural assessment to fall back upon, the assessment on re-diversion shall be fixed at the rate adopted for similar soil in the same village or in a neighbouring village at the last settlement.
3. Where land assessed for use for anyone purpose is diverted to any other purpose, assessment thereon shall be revised and the land revenue shall be fixed in accordance with rates specified as per Column (4) of the below Table. Provided that where land is diverted into more than one non-agricultural (mixed use), the assessment thereon shall be fixed in proportion to the purposes specified as per in the below Table.

2. Imposition of Premium

1. No premium shall be imposed in case the land assessed and diverted from a non-agriculture to an agriculture purpose.
2. Where land assessed for use for anyone purpose is diverted to any other purpose and land revenue is fixed thereon the premium shall be imposed according to the corresponding rate as provided in the below table.
3. In the event of the land diverted to non-agriculture purposes being re-diverted to agriculture or to any other purpose, the holder of the land or the successor-in-title will not be entitled to get a refund or set off of the amount of premium already paid for diversion.
4. All changes in assessment on account of diversion shall be brought on the record-of-rights and other record prescribed under the law and necessary corrections shall also be made in respect of the survey numbers or plot numbers.

What Happens After Diversion?

The following are the consequences for diversion of land :

1. Land Revenue as per the fair assessment of the demarcated land : The land revenue shall be paid according to the assessment the land and for the purpose it is used which will be determined by the last Assessment in that area as notified by the Government, irrespective for the assessment which was fixed has not expired, otherwise, it will be altered and assessed accordingly to the rules framed by the Government with the purpose to which it  has been diverted.

In case where the assessment has not been fixed the assessment of land revenue shall be made by the Collector in accordance with rules provided under the Code.

2. A Separate Survey Number is Demarcated: After diversion of land where the purpose of the land has been changed from agriculture to a non-agricultural purpose that portion of the land is specially assigned by the Settlement Officer after assessment into a separate survey number or sub-division of a survey number.

3. Re-Numbering or Sub-dividing Survey Numbers: The Settlement Officer may either renumber or sub-divide survey numbers into as many sub-divisions as may be required in view of the acquisition of rights in land.

Why It Is Necessary?

As per The Land Revenue Code, a Land is considered as an account and the account holder is known as the ‘Bhoomiswami’ or the Holder. The Holder has to pay land revenue to the Government at every 30 years period as per the purpose the Land is in use by the Holder. The following are the necessary reasons for diversion of land -:

1. Land Use: The Holder has to maintain its rights in the Records of the Government about the land use because the land revenue is payable as per purpose or use of the land. If the Land is used for any other purpose than agriculture or other purposes where land revenue is not payable as per the Government, the Holder of land will be held liable to pay penalty for this instance. It is an obligation of any person who holds the right, interest or liabilities of the land to enter in the records or register it by requisition in writing to any Revenue Officer, Revenue Inspector or Patwari who is engaged in compiling or revising the records or register upon receiving of such requisition within one month from the date of receiving all such information.
2. Penalty: The person neglecting to make a report or produce information related to the change in holding rights and shall be liable as per the discretion of the Tahsildar to a penalty not exceeding one thousand rupees, which shall be recoverable as an arrear of land revenue.  

SIMILAR LAWS IN OTHER STATES

Conclusion

The State Government has the power to levy land revenue on all land under different heads as per, the assessment of revenue on the land. It can reassess and re-fix the land revenue liable on such a parcel of land where the use of which is converted or diverted. In such a case a onetime premium on such conversion is lived as per the Revenue Code. The Diversion of land is the record of the Holder for which purpose the land is used. The State present several classes of land based on which it determines the land revenue by a proper assessment. It also determines the holder having its rights and liabilities with the land or in case of a transfer, the new holder is on to change the use of land. This whole process of assessment of land and land revenue adds revenue to the Exchequer for the State Treasury.   

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

The post What Is Diversion of Land and Why It Is Necessary? appeared first on iPleaders.

This article is written by Anjali Dhingra, IInd year student, B.B.A. LL.B, Symbiosis Law School, NOIDA. In this article, the author discusses contract and agreements and the difference between the two. The article also discusses what agreements are contracts and what are not.

Introduction

Contracts have always been an indispensable part of our lives. Knowingly or unknowingly, we enter into a contract hundreds of time in a year. Even when we buy candy, we are entering into an agreement with the shopkeeper. Every time we visit a restaurant or book a cab, we are entering into a contract. Although the law of contract is developing with time, the jurisprudence of contract remains the same. We know what a contract is all about but new situations arise every day and a new question appears in the mind that whether this particular agreement be regarded as a contract or not!

One of the common perplexities among people is recognizing the difference between a contract and an agreement. They are frequently used interchangeably. For example, when the owner of house hands over the rent agreement and says, “Please sign the contract”, this creates uncertainty whether the document is an agreement or a contract.

We come across ‘contract killers’ in movies who charge money to kill people. Have you ever thought, ‘Is a contract of killing someone for money, a valid contract?’ or ‘Can the man giving the contract sue the contract killer in the court of law saying that the other party has committed a breach of contract by not doing the job even after the payment of money?’.

This article aims at identifying the difference between a contract and an agreement and how an agreement becomes a contract.

How is an agreement formed?

To form an agreement, the following ingredients are required:

• Parties: There need to be two or more parties to form an agreement
• Offer/ Proposal: When a person signifies to another his willingness of doing or omitting to do something with a view to obtain other’s assent. [Section 2(a)]
• Acceptance: When the person to whom the proposal is made signifies his assent for the same thing in the same sense as proposed by the offeror. [Section 2(b)]
• Promise: When a proposal is accepted, it becomes a promise. [Section 2(b)]
• Consideration: It is the price for the promise. It is the return one gets for his act or omission. [Section 2(d)]

An agreement is, therefore, a promise or set of promises forming consideration for all the parties. [Section 2(e)]

Agreement = Promise or set of promises (offer + acceptance) + Consideration (for all the parties)

If a 7-year-old boy is buying an ice-cream from an ice-cream vendor and giving Rs. 10 in return, it becomes an agreement. This is because the boy offers to buy ice-cream and the vendor accepts the offer which makes it a promise. The consideration for both was ice-cream and money respectively.

How is a contract formed?

A contract is a lawful agreement. In other words, an agreement enforceable by law is a contract.

Contract = Agreement + Legal enforceability

                            Or

Contract = Legally enforceable Agreement

Now, the law says that any contract entered with a person below the age of 18 years is not enforceable. In the above case, the deal between the boy and ice-cream vendor was an agreement but it cannot be termed as a contract because it is not legally enforceable.

Agreement and Contract: The difference

‘All contracts are agreements but all agreements are not contracts.’ This statement can be understood from the above Venn diagram. The agreements which are enforceable under the law of the land become contracts, which are denoted by the inner circle. The outer circle denotes the agreements which are not contracts. The shaded part includes agreements which are not enforceable by law and are known as void agreements.

The concept of Voidable contracts: There exist some agreements which are enforceable on the part of one party but not on the option of other parties. It is on the discretion of that party if it is willing to enforce the contract or make it non-enforceable i.e. void. The voidable agreements are therefore both valid and void agreements. The dotted circle of voidable agreements denotes that they can be termed as void or valid on the discretion of one party thus covers the area of both valid and void agreements.

For example, if a person is buying a car which is just 3-4 years old and the owner lied about the year of manufacturing of the car thereby committing fraud. Now, according to the Indian Contract Act, 1872 fraud makes a contract voidable. Therefore, the buyer is on the discretion that he can either buy the car or not, whereas the seller is bound by the promise he made.

How does an agreement become a contract?

To make an agreement, a contract, we need to ensure that the following conditions are fulfilled:

The parties must be competent to contract

The parties entering into the contract are competent to contract when they:

• Have attained the age of majority i.e. 18 years of age,
• Are of Sound mind, and
• Are not expressly disqualified from contracting by the law

At the time of entering into an agreement, if a person is of unsound mind or is disqualified by law; the agreement is considered to be void. On the other hand, an agreement entered with a minor is void-ab-initio i.e. void from the very beginning and thus cannot be enforced. For example, if a seven-year-old boy is buying an ice-cream; although he is entering into an agreement with the ice-cream vendor, it is not considered as a contract because being a minor; the party is not competent to contract. (Minor)

Similarly, if Vidya Balan in the movie Bhool Bhulaiya is entering into an agreement at the time when she is considering herself as Manjulika, the agreement becomes void because of her unsoundness of mind at the time of entering into the agreement. (Unsound mind)

For example; Mr A is declared as insolvent by the court and the court ordered that he is disqualified from contracting. Now Mr A buys a flat on instalments and failed to pay any. The owner of the flat cannot sue him because the contract was void. (disqualified from contracting)

The consent must be free

The consent can be given expressly by words- oral or written or impliedly by gestures or surrounding circumstances. (Section 13)

For example, A offered B to sell his car for Rs. 50,000. A asked him to come to the house in the evening with cash if he is willing to buy the car. When B came to the house with cash in the evening, it shows his implied consent to buy the car.

But, the consent so given by the person must be free and not influenced by any outside force. The consent of a person is said to be free unless it is not caused by any of the acts mentioned below: (Section 14)

• Coercion (Section 15)
• Undue Influence (Section 16)
• Misrepresentation (Section 18)
• Fraud (Section 17)
• Mistake (Section 20, 21, 22)

In the above-mentioned cases, the agreement becomes voidable on the part of the aggrieved party because the consent was not free.

Some examples are given for a better understanding of the concept:

Coercion: If Mr Batman gets some property sale agreement signed by Mr Superman under a threat that he will kill his mother, Mr Superman is on the discretion that he can enforce the agreement or not because his consent was obtained under coercion.

Undue Influence: The teacher asked the students that whosoever pays her Rs. 200, that student will get full marks in the viva. Now the teacher was in a fiduciary relationship with the students and was taking undue advantage of such a position. Thus, any such contract made by the teacher to student is voidable on the part of the students.

Misrepresentation: Mr Lal was willing to buy a car owned by Mr Peela. At the time he was buying the car, he asked Mr Peela about the colour of the car and said that he wants a pearl grey car. Mr Peela was an old and illiterate man who was not having much knowledge about colour differentiation. Mr Peela believed that the car is pearl grey and answered in affirmative.

Later on, Mr Lal came to know that the car was Metallic grey and not pearl grey. Here, Mr Peela is liable for misrepresentation and Mr Lal is free to continue the contract or not.

Fraud: If in the above case, Mr Peela was aware of the actual colour of the car but lied to Mr Lal; than he would have been guilty of fraud and such agreement would have been voidable.

Mistake: If both the parties are under a mistake of fact, the agreement becomes void. But if any or both of the parties are under a mistake of law, the agreement becomes void. For example, A and B entered into an agreement of sale of a particular drug. They were not aware that such a drug is illegal in India. Their agreement is void.

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The consideration and the object needs to be lawful

The consideration and object of an agreement are unlawful if it is:

• Forbidden by law
• Of such a nature that if permitted, would defeat the provisions of any law
• Fraudulent
• Involves or implies injury to person or property
• Regarded as immoral or opposed to public policy by the law

If any of the agreement contains abovementioned consideration or object, the agreement becomes void. For example, entering into an agreement of killing somebody for money is considered to be void. A person cannot approach the court saying that I have given the money but the contract killer is not doing the job because the object was something which is forbidden by law and thus the contract is void.

Similarly, if you are bribing a public officer to get some official papers to you; the papers might be legal but the consideration you are paying is not lawful as it would defeat the provisions of Prevention of Corruption Act.

The agreement should not expressly be declared to be void

There are certain kinds of contracts which are expressly declared by The Indian Contract Act, 1872 to be null and void. The following are some of the agreements which are not enforceable in the eyes of law:

• Agreements without consideration except it is written and registered or is a promise to compensate for something done or is a promise to pay a debt barred by limitation law.
• Agreements in restraint of marriage
• Agreements in restraint of trade
• Agreements in restraint of legal proceedings
• Agreements void for uncertainty
• Agreements by way of wager
• Agreements contingent on an impossible event
• Agreements to do impossible act

Those agreements are void which are based on any of the subjects mentioned above. There is no liability for not enforcing the contract and thus, the conditions of the contract are not binding upon any of the party.

For example, if Devdas asks Paro not to get married for her entire life then he will give her new dress and shoes in return; it cannot be considered as a valid contract because the agreement is made in restraint of marriage.

Similarly, if the agreement is made to not to work for the entire life in exchange for a new flat, it will not be considered as a valid contract as it is in restraint of trade.

Also, if a father enters into an agreement with his son that the father will get him a new bicycle if the son scores 105% in his board exams. It will be considered a void agreement because it is an agreement to do an impossible act.

The above-mentioned conditions are required to be fulfilled in order to make an agreement legally enforceable. The agreement becomes void if any of the mentioned conditions are left unfulfilled except in the case of free consent where the agreement becomes voidable instead of void and giving the party, whose consent was not free at the time of entering into the contract, the discretion to continue the contract or not.

Conclusion

The Indian Contract Act, 1872 can be interpreted to cover all kinds of possible agreements and contracts. But, in several cases, it depends upon the facts and circumstances whether an agreement is a contract or not. In a nutshell, all the agreements which are legally enforceable become contracts. This concludes that there can be agreements which are not contract but there can be no contracts which are not agreements.

References

The Indian Contract Act, 1872

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This article is written by Mr Ravi Karan Kakkar, a sales and finance strategist who has a rich experience of working in India, Singapore, Saudi Arabia, and Indonesia. Ravi is currently on an assignment in Jakarta, Indonesia, and is pursuing Diploma in Companies Act, Corporate Governance and SEBI Regulations with LawSikho.com.

Introduction

NFRA rules notified ICAI wings clipped – Read the headlines of newspapers when the Indian government notified about independent regulator of auditors. Prima facie, it seemed that ICAI role as a supervisory authority for auditors was weakened due to the formation of NFRA. However, the same is not true that can be testified upon an exhaustive review of the NFRA policies.

The decision to constitute NFRA was taken after the auditor’s role came under the scanner during famous multi-crore banking fraud at Punjab National Bank. In a layman language, National Financial Reporting Authority is a legal watchdog of the auditing profession. While ICAI was mandated to keep an eye on erring auditors, however, it made sense for the government to empower themselves with this responsibility.

ICAI is dead?

The market is differentiated in their opinion on this move by the central government to constitute NFRA. While already the auditing profession is regulated by various regulatory bodies such as ICAI, SEBI, and MCA; it was evident that adding another layer of a regulatory body which is superseding all other regulators would create ripples in the industry. Formation of NFRA leads to nationwide protests by members of ICAI who were of the opinion that government is trying to strip off their administrative powers leaving them with no other option but to only be a coaching institute. There is no doubt that an unprecedented power has been given to NFRA that has established their supremacy over any other laws. However, in a wider scheme of things, it may seem logical as it may lead to an efficient bifurcation of work between ICAI and NFRA.

What is the rationale behind the formation of NFRA?

Any government in power is responsible for anything & everything happening in the country.  People started blaming the government for not being able to regulate the banking sector scams. When you are being blamed for something, it is imperative that you should have complete control over the sector. In this case, the power to regulate the sector was delegated in the able hands of ICAI. However, due to the magnitude of corporate frauds, it was sensible on part of the government to vest control in their hands. That in no way supersedes the efficacy of ICAI, but in a broader perspective, it will enhance the veracity of auditing profession which is the sole purpose of ICAI as well as NFRA.

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NFRA has the power to monitor and enforce compliance with accounting and auditing standards, oversee the quality of service under sub-section 2 of sec 132 of the companies act 2013, and investigate under sub-section 4 of sec 132 of the companies act 2013 for-

• all the listed companies (whose securities are listed on any stock exchange within India or abroad).

• Unlisted public companies with paid-up capital >= INR 500 Cr or annual turnover <= INR 1000 Cr or total outstanding loans, debentures, deposits <= INR 500 Cr in preceding financial year,

• Insurance companies, banking companies, electricity generation/supply companies, companies formed under the special act,

• Any company referred by the central government,

• The associate/Subsidiary company whose income/net-worth exceeds 20% of consolidated income/net-worth of a company which falls under above 4 points.

Basic details about NFRA

NFRA Formation Committee

• NFRA shall consist of the chairperson to be appointed by the central government with experience of not less than 25 years in accountancy, auditing, finance or law.
• Three full-time members to be appointed by the central government with experience of not less than 20 years in accountancy, auditing, finance or law.
• Nine part-time members to be appointed by the central government. Part-time members should be representatives from MCA, CAG, RBI, SEBI, ICAI.
• The total number of members in a committee should not exceed 15 including part-time and full-time members.

DISCLAIMER: All the members should make a declaration to the central government in a prescribed format stating there is no conflict of interest in their appointment.

Full-time members should not hold any position in any audit or consultancy firm during the course of their engagement and 2 years henceforth after leaving NFRA.

Functions of NFRA

• Recommending auditing and accounting policies and standards to the central government.
• Ensuring compliance with regards to auditing and accounting standards.
• Overseeing the quality of service of the professionals
• Power to investigate any corporates and individuals registered as members under the Chartered Accountants Act 1949.
• Code of civil procedure, 1908 will apply in matters such as asking the firm/individual to produce books of account, registers, any other documents; summoning of persons; issuing commissions for the examination of witnesses/documents.

Penalties/ Punishment

• If an auditor is proven guilty of a misconduct by NFRA, then under section 132 of the companies act 2013 NFRA has the power to impose fine of minimum INR 1 lakh up to 5 times of fees received in case of individuals/and INR 10 lakh up to 10 times of fees received in case of firms.
• The auditor (if proven guilty) registered as a member under chartered accountants act 1949 can be suspended for a period of 6 months or up to a max of 10 years as per the ruling of NFRA.
• Further as per companies rules (The National Financial Reporting Authority Rules 2018) – In case of non – compliance, any officer/company/auditor in default shall be punished as per sec 450 of the companies act 2013.

Provision to Appeal

• An aggrieved person can appeal to appellate authority against the order passed by NFRA.
• The appellate authority shall consist of a chairperson and 2 other members to be appointed by the central government.

Compliance requirements for NFRA and Appellate Authority

• The officer authorized by the appellate authority shall submit an annual report to the central government giving a full account of its activities in the financial year.
• Appellate authority to follow prescribed rules with regards to qualifications for appointing chairperson & members of the appellate authority, manner of selection, T&C of their service and requirement of support staff.
• NFRA shall submit an annual report to the central government giving a full account of its activities in the financial year.
• Central Government may appoint secretary and employees in NFRA.
• Head office of NFRA shall be at New Delhi. NFRA to maintain books of accounts and other books in such manner as Central Government & CAG prescribe.
• NFRA accounts to be audited by CAG.

Disclosures

• As per NFRA Rules (2018) issued by MCA – body corporates governed by the rules shall disclose details about their auditor in Form – NFRA 1within 30 days of commencement of rules.
• Body corporate shall inform the authority about the appointment of auditor in Form NFRA-1 within 15 days of his/her appointment.
• Eligible auditors as per rule 3 of the NFRA rules 2018 shall file a return with the authority on or before 30th April every year.

Conclusion  

Committee formed by the honourable Supreme Court of India to strengthen the audit regulatory process recommend the formation of National Financial Reporting Authority. However, among many rules laid down by the committee, the cabinet did not pass the network liability in the rules. Committee recommended monetary penalties on an international network with which Indian audit firm is a party to.  The power given to NFRA to question not only defaulting individual auditors but also audit firms is a step in the right direction which was missing in Chartered Accountants Act, 1949.

Audit firms are bound to disclose the names of defaulting partner/s, failure to disclose the same will result in by default action on all the partners and employees of the audit firm. Thus employees of the audit firms are also under the scanner of NFRA, therefore there should be a greater sense of ownership and awareness among the employees now. The clause that any company referred to NFRA by the central government can be monitored and investigated brings practically all the private companies, body corporates, and various unlisted public companies under the umbrella. Probably next in line would be the implementation of a structure that enables auditors of parent companies to vet/approve the audits of subsidiary and associate companies. This will enhance the effort to bring overall transparency in the auditing process. How effective this entire exercise would turn out to be is still a question to be answered, however it is certain that the government has taken initiatives as per best practices followed in the international arena. Also, the authority is allowed to be a member of international associations of independent audit regulators thereby providing them with the freedom to take assistance from regulators based out of India during the investigation process of any auditor in India. The idea is to align Indian audit practices to best standards and simultaneously work on improving the quality of service by forging strong relationships with international organizations.

The authority can also take steps such as workshops, seminars, conferences with an endeavor to aware auditors about best accounting and audit standards. Monitoring/Ensuring Compliance/ Improvement of quality of service are three pillars of NFRA that would potentially lay a strong foundation for the Indian audit industry in near future.

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.          

The post What is National Financial Reporting Authority (NFRA) and What does It do? appeared first on iPleaders.

This article is written by Anju Menon, pursuing Diploma in Companies Act, Corporate Governance and SEBI Regulations with LawSikho.com. She has previously worked as Senior Associate in the Foreign Division of Abdullah Kh. Al-Ayoub & Associates, Law Firm, Kuwait (December 2014-July2018).

Introduction

Most companies open reserve account(s) which enables in strengthening the future growth of the company. The reserve fund is created by allocating a portion from the profits earned each year. “As an example, we can talk about Apple. After the initial public offering (IPO), Apple kept all its profits as revenue reserve for few years. The idea is to strengthen the core of the company so that they can serve their customers and shareholders better. (Vaidya)”

Reserves may be created for a specific purpose such as repayment of debts, purchasing assets, etc. or it may be created simply as a general reserve without any specific purpose or as a contingency reserve to meet any unexpected risk or losses that may arise in the course of business.

In the case Canfin Homes Ltd.,, Bangalore vs Assessee the assessing officer made the following analysis:

“A reserve by its very nature is a fund which is created and maintained for the purpose of being drawn up in future. ……A mass of undistributed profits cannot automatically become a reserve and somebody possessing the requisite authority must clearly indicate that a portion thereof has been earmarked or separated from the general mass of profits with a view to constituting it either as a general reserve or as a specific reserve.”

Classification of Reserve

Reserves can be classified based on the source of earnings. A revenue reserve is created out of profits generated from the trading activities of a company and a capital reserve is created out of the profits which are capital in nature such as revaluation of assets, write-back of depreciation and amalgamation etc. When a company incurs capital losses, the fund from the capital reserve is used to write-off the same.

A ‘free reserve’ is defined under the Companies Act, 2013 (“Companies Act”) as any reserve available for distribution of dividends as per the last audited balance sheet. The definition excludes any amount earned from unrealized gains, notional gains or revaluation of assets from being treated as a free reserve. Similarly, any change in carrying the amount of an asset or liability in equity will not be a part of a free reserve.

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It is to be noted that free reserve would be considered while calculating the net worth of a company. We can come to this conclusion from the definition of ‘net worth’ provided in the Companies Act, which is as follows:

“…the aggregate value of the paid-up share capital and all reserves created out of the profits and securities premium account, after deducting the aggregate value of the accumulated losses, deferred expenditure and miscellaneous expenditure not written off, as per the audited balance sheet, but does not include reserves created out of revaluation of assets, write-back of depreciation and amalgamation”.

Meaning of Surplus

Unlike free reserve, the surplus from the profits earned by a company is not included while calculating the net worth of the company. The surplus has not been specifically defined under the Companies Act.  However, for the purposes of preparing balance sheet the following accounting explanation has been provided under Schedule III of the Companies Act:

“Surplus i.e., balance in Statement of Profit and Loss disclosing allocations and appropriations such as dividend, bonus shares and transfer to/ from reserves, etc:…” Further, “Debit balance of statement of profit and loss shall be shown as a negative figure under the head “Surplus”…”

The surplus is the balance after allocating dividend, bonus shares, and reserves. Also, as stated above, the debit balance of statement of profit and loss under the head ‘Surplus’ will be shown as a negative figure. This is the reason why surplus is not included when calculating the net worth of a company.

The definition of ‘Surplus’ as given in the guidance notes on ‘Terms used in Financial Statements’ formulated by the Accounting Standards Board is as follows:

“Credit balance in the profit and loss statement after providing for proposed appropriations, e.g., dividend or reserves”.

A further reference has been made with respect to ‘reserve’ and ‘surplus’ in the Companies Act under Clause 82 of Table F.  As per this provision, the Board of Directors may at its discretion set aside a portion out of the profits as a reserve(s) before declaring any dividend.  Such reserve(s) can be applied for any purpose including meeting contingencies or equalizing dividends and when such application is pending, the reserve may either be used in the business of the company or be invested elsewhere as the Board of Directors thinks fit. It also gives the Board of Directors the right to carry forward any profits without maintaining a reserve. Thus, it can be noted that maintaining a reserve is not mandatory and the profit that is carried forward amounts to surplus.

Restrictions on Usage

Companies which have an excess of Profit after appropriation for statutory reserves and dividend do have the tendency to retain it as Surplus of the company, rather than transferring it to any Reserves, which are Free Reserves for the company. (Co.) By doing so, some of the issues faced by companies are discussed below:

-Board of Directors are required to take the prior consent of the shareholders by passing a special resolution to borrow money where the total borrowing by the company exceeds an aggregate of its paid-up share capital and free reserves.

-For a company to grant loan or acquire securities in another company, for an amount that exceeds sixty percent of its paid-up capital, free reserves, and securities premium account or hundred percent of its free reserves, and securities premium account (whichever is higher), it would require the prior consent of the shareholders by passing special resolution in a general meeting.

– A company cannot issue bonus shares made by capitalizing reserves created by the revaluation of assets.

-A company cannot buy-back its shares if it exceeds ten percent of its total paid-up equity capital and free reserves or if it exceeds twenty-five percent of the aggregate paid-up equity capital unless approved by the shareholders by passing a special resolution in a general meeting.

We can conclude that having a lower reserve would require the constant approval of the shareholders with respect to granting loans, borrowings, etc by a company. These restrictions have induced many companies to retain the profits as surplus instead of transferring to reserve(s).

What is a Capital Redemption Reserve Account and why is it maintained?

Capital redemption reserve account is a type of reserve maintained by a company limited by shares and as the name suggests this reserve deals with shares which are redeemable. The shares which are purported to be redeemed are paid out of the profits of a company. For this purpose, out of the profits, an amount equivalent to the nominal value of the share supposed to be redeemed is transferred to a reserve. This reserve is called a capital redemption reserve account.

A company may issue preference shares which can be redeemed within a period of twenty years from the date of issue. However, it is subject to the following conditions as prescribed in the Companies Act:

1. The Articles  of Association of the company must permit the same;
2. The redemption must be out of the profits of the company which would otherwise be distributed as dividends or out of the earnings of a fresh issue of shares (made for the purposes of such redemption);
3. Only fully paid-up shares can be redeemed;
4. The company has to maintain a capital redemption reserve account (the provisions relating to the reduction of the share capital of a company will apply as if the Capital Redemption Reserve Account is paid-up share capital of the company);
5. In case the premium is payable at the time of redemption for certain class of companies (as prescribed) which complies with the accounting standards under Section 133 of the Companies Act, it must be paid out of the profits of the company before the shares are redeemed:
6. If the premium is payable for preference shares issued on or before the commencement of the Companies Act, before such shares are redeemed, the premium must be paid out of profits of the company or out of the securities premium account maintained by the company.

A capital redemption reserve account can be used to pay any unissued shares of the company to be issued as fully paid bonus shares to the members of the company.

Buy-back of Shares

A company buying-back its own shares by paying out of free reserves or securities premium account must transfer an amount equivalent to the nominal value of the shares purchased to the capital redemption reserve account. The details of the same must be disclosed in the balance sheet.

Further Issue of Redeemable Preference Shares

If a company is unable to redeem any preference shares or pay dividend (if any) on such shares then it may issue further redeemable preference shares equal to the amount due and dividends, if any, with the consent of the preference shareholders (holding three-fourths in value of such preference shares) and the approval of the Tribunal. Upon issuing further redeemable preference shares, the preference shares that are unredeemed shall be considered to have been redeemed.

It is to be noted that the issue of further redeemable preference shares or the redemption of preference shares shall not be deemed to be an increase or a reduction in the share capital of a company.

Impact of Mergers and Acquisitions on Reserves

The Accounting Standards 14 has laid the treatment of reserve(s) in case of Mergers and Acquisitions. In a merger, the identity of the reserve(s) is preserved and is shown in the financial statements of the transferee company. They retain their nature and value. Thus, for instance, the capital redemption reserve account of the transferor company becomes the capital redemption reserve account of the transferee company. However, in case of an acquisition (amalgamation by purchase), the identity of reserves is not preserved except for the statutory reserves.

Further, with respect to the reserves created by the transferor company for the purposes of the Income Tax Act, 1961, the identity of such reserves should be preserved for a specified period.

Tax Benefit for Special Reserve

We can find a list of expenses which are allowed as a deduction when computing the income from a business and profession under Section 36 of the Income Tax Act, 1961.

When a special reserve is created and maintained by certain specified entities including a financial corporation, a banking company, a housing finance company, and a portion from the profits earned from an eligible business is transferred to this reserve, the aforementioned entities are entitled to claim a deduction. This deduction has been capped at a maximum of twenty percent of the profits earned and should not be more than twice the amount of paid-up share capital and general reserves of the entity specified.

The eligible business includes providing long-term finance for the development of industry, agriculture, infrastructure, and housing.

Conclusion

Companies must make an attempt to earmark a portion from the profits earned to reserve(s). Reserve(s) can be a tool to deal with all types of business risks and will act as a safety net in the time of crisis. Further, higher reserves provide companies with additional flexibility in making a business decision such as expansion plans, investments etc.

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.  

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This article has been written by Diva Rai, 1st year student, Symbiosis Law School, Noida. In this article she discusses the military justice system in India, its definition, origin, defects, reforms and the Armed Forces Tribunal.

Military justice (or military law) is the body of laws and procedures for the armed forces. Many nation-states have separate and distant law bodies that govern the conduct of the members of their armed forces. Some states use special legal arrangements and other arrangements to enforce such laws, while others use civil law systems. Legal issues unique to military justice include the preservation of good order and discipline, the lawfulness of orders, and military members’ proper conduct. Some states allow their military justice systems to deal with civil offenses committed by their armed forces under certain circumstances.

Military justice is distinct from martial law, which is the imposition on a civilian population of military authority as a substitute for civil authority, and is often declared in times of emergency, war, or civil unrest. Most countries limit when and how martial law can be declared and enforced.

Definition of Military Justice

It is defined as the body of laws and procedures that regulate the conduct and governance of armed forces members. Different countries have separate and distinct law-making bodies specifically designed to govern the respective countries armed forces. While some countries use different and separate judicial bodies and arrangements to administer justice, some countries use civil justice systems.

Origin of Indian Judicial System

Indian justice is one of the oldest legal systems in the world. Inherited from the legacy of the legal systems established by the British rule in India since the 19th century, it includes a common law legal jurisdiction system consisting of customs, precedents, and laws. At the highest level, the judiciary has a set hierarchy with the Supreme Court, followed by the respective high courts and district courts at the district level.

Military Justice in India

India has its own Army Act, the Air Force Act, and the Navy Act. These laws define the statutory provisions as being applicable to men and women in uniform. All these three Acts can be found on the official website on search. In India too, there are certain para-military forces that have laws similar to those that apply to defense services. This includes the Border Security Force Act, the Coast Guard Act, the Border Police Force Act of Indo-Tibet and the Assam Rifles Act. All of these acts are inspired by the Army Act.

The British had developed the system of military justice to “discipline” India’s people after the Mutiny of 1857. It is the basis for the 1950 Indian Army Law, the 1957 Navy Law and the 1950 Air Force Law. Before being adopted by independent India, only a few changes were made to the British laws.

For different reasons, the need for a separate justice scheme for the armed forces arises. Military functions require rapid decision-making. This can not be accomplished through discussions and debates. The subordinates carry out the orders of a commander. That’s why all military forces have a fixed hierarchy system. This puts all people in their position that is clearly designated. Military justice provides a catalyst for cultivating an unquestionable obedience habit by posing the threat of penalizing disobedience. Moreover, since the armed forces are not a deliberative body and have developed their own laws and traditions that recognize unique military offenses such as desertion, disobedience of orders, absence without leave, dereliction of duty, etc.

Defects in the Indian Military System

Together with the other acts of the different armed forces, the Army Act reflects the old justice system prevailing in British times and is therefore ridden with defects. Removing these defects is of utmost importance before they plague or deliver the system of military justice. Some of the shortcomings are:

• Right to bail- An arrested military person has no bail provision. The commanding officer or the superior military authority may decide to grant it on the basis of their discretion. The apex court has established the principles on which bail should be granted, but granting bail at somebody’s discretion is arbitrary and unreasonable and makes Article 21 of the Constitution meaningless.
• Military rules do not allow an accused to obtain a civil lawyer to defend him or to be defended by a military officer known as the defending officer. The lack of legal aid services is a serious infringement of Article 21.
• Trial in a Summary Court-Martial-  Trial of accused military personnel is held in a special court known as the Summary Court Martial. The SCM trial does not match the levels of justice set by the apex court and various high courts simply because there is no prosecutor and the SCM performs some of the functions of the prosecutor themselves. Serious infringement of Article 22 occurs when the accused can not defend himself with the help of a lawyer or a defense officer. SCMs have been severely criticized by the Supreme Court and High Courts for failing the just and fair reasonableness test.
• Double Jeopardy- Article 20(2) enshrines constitutional protection against double jeopardy. It is available in the military justice process, but this protection is not available before a civil court to prevent a second trial on the same offense.
• No right of appeal- There is no provision for the accused to appeal in a higher court. Section 164(2) of the Army Act states that a person who considers himself grieved by a finding or sentence of a court-martial may file a petition with the central government, the chief of the army or any prescribed superior officer in command of the person who confirmed the finding or sentence, and the central government, the chief of the army or any other officer may pass such orders as the case may be. This remedy is therefore not available to the accused before the sentence is confirmed. This remedy is also just a paper exercise and occurs in closed rooms where the accused does not have the right to personal representation. There is virtually no right of appeal against the court martial’s order.
• Members of Court Martial- Members are not trained to administer justice either legally qualified or not. They are under the different commanding influence and do not exercise their judgment completely independently in a trial.

Reforms in the Military Justice System

A large number of cases that have been brought before the higher civil courts shows that the armed forces’ justice delivery system has been moving at a very slow pace and has not been able to fulfill men’s aspirations in uniform. The total number of legal cases challenged by the Ministry of Defense and the headquarters of the armed forces is more than a lakh.

Antiquated

The system of military justice was found antiquated and out of step with the Constitution’s liberal spirit. There is a need to strike a fair balance between a democratic society’s pressures and military discipline’s requirements. The military justice system of India has its origin in England’s military laws. After the Mutiny of 1857, it was made by the British to govern natives and has some major flaws. They are-

• No bail shall be granted to the arrested military person on charges.
• Insufficient legal assistance to the accused during the courts-martial.
• The court-martial chairman and members shall be subject to considerable influence by the convening officer.
• The department of Judge Advocate General shall be placed under the administrative and functional control of the same executive.
• No appeal is lodged against the finding and sentence of a court-martial.
• The double-hazard constitutional protection provided for in Article 20(2) is not available to Air Force personnel to prevent a second trial before a civil court.
• The trial of a summary court-martial does not comply with the recognized standard of justice because there is no prosecutor and the court does not comply with it.

Glaring Deficiencies

In the field of human rights, judicial activism has generally kept clear the terms of service of aggrieved military personnel as well as the justice of the courts-martial. There are glaring deficiencies in the safeguards granted to the accused and the attitude of those administering the military justice delivery system. The justice system is considered part of the executive department and in fact, is simply an instrument of executive power to enforce force discipline.

It will not be correct to say that there is no need to reform the law since the number of people affected by military law is small or the members of the armed forces have voluntarily submitted to the existing system with all its flaws. The armed forces justice system should adopt a procedure that is not only open and objective but also aims at a liberal interpretation of the principles of natural justice. While the primary purpose of the military justice system must always be to maintain discipline within the organization, the focus must be on organizational effectiveness rather than punishing or protecting individual actions.

The wartime experiences of the United States and the United Kingdom’s specified the desirability of making the armed forces members’ rights and responsibilities ascertainable by reference to a single statute. In the U.S. has led to the adoption of the Military Justice Uniform Code.

The Armed Forces Tribunal in India

Since August 2009, the Armed Forces Tribunal and its Benches (each judicial and administrative member) have been operating. It has original jurisdiction over matters relating to service and appeals court-martial jurisdiction. In the last 5 years, 5,500 cases have been decided. The Tribunal is unable to execute its orders through civil contempt. An appeal may be brought before the Supreme Court of India against the Tribunal’s order. An amendment to the AFT Act 2007 to give the resentment of the armed forces in 2012 to civil contempt.

The AFT has no civil contempt authority. The Armed Forces Tribunal(AFT) has no jurisdiction in grievances concerning leave, posts, transfers, summary disposals and trials. A large number of cases have occurred in which the military or government has failed to take action on the Tribunal’s decisions. In its present form, the Indian military legal system is a hangover from a time when the battlefield was so far removed from the normal world that the armed forces had to be self-contained. Over the past two decades, the world has moved forward and major changes have occurred in other democracies’ military justice systems. It is time we reinforced our system and restored public confidence in the quality of military justice.

Conclusion

Military law provisions govern the role of Indian Army during peace and war formulated in the form of Statutes, Rules and Regulations. It is a written code which has seen periodic changes and review, apart from conventions of service. Individuals of the armed forces have their own justice system that is quite different from the common justice system. The legal and justice system of the armed forces was designed to be relatively swift in execution in order to maintain discipline and avoid the long absence of military and military duties from officers and men. The system of appeals has therefore not been included in the military justice system, as it is in the civil system.

As members of the armed forces, more than 1.5 million Indians are subject to the military justice system. This group still applies to a legal system designed and implemented after the Mutiny of 1857 in the name of discipline to serve the interests of colonial masters on Indians. In our country, the military justice system is rarely criticized- the notion that it is about defending the system, calling it  ‘time-tested’ is generally ignored. In addition, a veil of secrecy is drawn on military matters. There is a clear trend of change in the world’s military justice system in terms of the accused’s rights and human rights standards.

Some important elements of this change are the independence of judges, the establishment of standing courts, the right to legal representation and the increased right of the accused to choose a trail instead of summary procedures, the deficiencies of the Indian military justice system and human rights limitations must be provided by law and should be consistent with international treaty obligations.

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

Do you believe in discounts?

I don’t.

Many businesses offer discounts as psychological manipulation to make more sales happen. People in India are really a sucker for discounts.

But I don’t trust discounts. Discounts, most of the time, are fake, and you can see it. Someone is basically jacking up prices and then giving discounts on that jacked up price. It is inauthentic. At other times they are forced to give discounts because the price is too high. It is risky for me as a customer because the house always wins. Discount is a kind of cheating where you charge differential prices to different people. Why?

So when I built my own company, I refused to offer any discounts. My colleagues in sales often requested me to offer some package or the other to increase sales as our competitors gave discounts on top of discounts, but I said no – we would have to learn to sell without giving discounts.

I want people to buy our courses because of the value intrinsic in them, not because they are available for cheap.

It is harder no doubt, but it is a long term strategy. It forced us to get better and better at what we do. When our competitors relied on shortcuts and gimmicks, we just kept our head down and took the long road to success.

It is not that I haven’t felt worried or tensed when I saw our competitors offering insane discounts. It is not that I never wondered if I should give in to the pressure. I did many times.

But we resisted that temptation.

The truth is that it is hard to provide great value and a lot of discounts at the same time. Usually, those two things pull you in different directions.

You can either be very cheap. Or you can be premium and give a lot of value.

We educated our community and our users instead.

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Almost in every sales call people to ask us about discounts. Is there any discount available?

Here is what we say:

In our 8 year history, we have never offered a discount and never will. We will charge the same price to everyone. We believe giving discounts to some and not to others is cheating. Our prices will be the same round the year until we need to increase it. It will go up and never come down because we charge a reasonable amount with a very thin margin and there is no scope to reduce prices.

After hearing this, most people get where we are coming from, and do not insist on a discount.

The conversation always shifts to what value we can generate for them.

I would rather build trust with my buyers that they will always get tremendous value from my offerings, and discounts then become unnecessary.

When I am buying things as well, I have a strong view on discounts. I want value, but when people offer too low a price, I am a bit suspicious. I know that things of real value rarely come with a lot of discounts.

If a lawyer charges you a very discounted price, you need to worry. How will he give enough time and attention to your matter? I will rather go to a lawyer who charges me enough.

If someone tells you that they are going to sell you the Kohinoor, or a Rolls Royce at a discount, should you not be suspicious? It is very dicey. What is the need to sell such valuable things at a discount?

What is the need to give a discount if the product or services are good, anyway?

I am sure all of us have burned our fingers a few times by trying to buy the cheapest thing in the market.

Sometimes it is easy to ascertain the value of what you are buying. Like a t-shirt. Or a coffee mug. You know what you are buying.

How about a car on a discount? I may try to find the cheapest deal, but if someone is selling something too cheap I will be worried, especially because it is so hard to understand for me if that car is actually in a good condition.

I have once taken a lease of a property on discount when it was in a dilapidated state and rumours of ghosts haunting the property were abound. It worked nicely, I got a super cheap deal.

When a discount is clearly understandable, and the value is obvious, I have no qualms about taking that up.

On the other hand, when it comes to buying a phone or a laptop, I go for trusted brands that I know will last me a long time. My Apple Macbook, although more expensive than any other laptop I ever bought, has given me tremendous more value as it is 4 years old and still almost brand new. My Oneplus phone is 2 years old, and still very robust and I cannot find any rational reason to replace it!

When I compare this to all the cheap laptops and phones I have bought, which broke easily or started developing problems after a few months, I see that those cheap gadgets were in many ways very expensive for me.

I am a sucker for value for money. I would rather buy a 2nd hand vehicle because I will get a much better deal and there will be hardly any difference in performance. I recently bought our technology team a 2nd hand MacBook pro for one third the original price, which works just like any brand new one!

I love buying stocks on a discount. That is a different kind of discount though. Sometimes the mood of the market is very pensive, and people sell perfectly well-performing stocks in irrational fear. Then you can get stocks for a discount, i.e. at a lower value than what it is actually worth.

I love that kind of discount.

That kind of discount usually becomes available due to unfavourable market conditions, although an asset is perfectly viable. Like the property that people thought is infested by ghosts. Or stocks that are available for cheap because people got scared and left share market in a stampede.

I want to save every penny I can. But discounts? I am always wary of them. That is primarily because they do not give as much value since discounts are a psychological trick in the hand of marketers to sell things that should otherwise not even exist in the market

What is your view on discounts? What kind of discounts do you look out for and what kind of discounts do you always avoid?

Meanwhile, check out the following courses on which we do not offer discounts rather we focus on giving 10x value so that your career does not get discounted in any way. You are meant to generate value and shine in your career. So make the right choices and don’t compromise by choosing discounts.

Diploma:

Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution

Diploma in M&A, Institutional Finance and Investment Laws (PE and VC transactions)

Diploma in Entrepreneurship Administration and Business Laws

Executive Certificate Courses:

Certificate course in Advanced Corporate Taxation

Certificate course in Advanced Civil Litigation: Practice, Procedure and Drafting

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This article is written by Anjali Dhingra, IInd year student, B.B.A. LL.B, Symbiosis Law School, NOIDA. In this article, the author discusses the Strict liability principle, its essentials, defences and how it evolved to the principle of absolute liability in India. The article also mentions the difference between strict and absolute liability.

Introduction to Strict Liability

The concept of strict liability was introduced in the late nineteenth century. It has been evolved from the concept of negligence which generally refers to a careless activity. It involves a duty of care towards one’s neighbours and breach of such duty results into damage caused to the neighbours. If there is negligence on the part of the defendant, he/she is held liable to compensate the plaintiff for the damage caused. Whereas, under strict liability, the defendant is held liable irrespective of the presence of any negligence on his part.

Strict liability was initially introduced in the case of Rylands v. Fletcher [1] in 1868. The case was treated as an aspect of nuisance or a special rule of strict liability. The defendant, in order to improve his water supply, constructed a reservoir by employing reputed engineers. There was negligence on the part of contractors that they didn’t seal the mine shafts which they came across while constructing the reservoir due to which water flooded into plaintiff’s coal mine resulting into damage to the mines of the plaintiff.

The plaintiff sued Fletcher for damages. The engineers were independent contractors and thus were not held liable. Justice Blackburn J. held the defendant liable by introducing the concept of strict liability which states that “The rule of law is that the person who, for his own purpose, brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril; and if he does not do so is prima facie answerable for all the damage which is the natural consequence of its escape. [2]”

It simply means that the defendant will be held liable without any negligence or ‘fault’ on his part. Thus it was proved out to be a ‘No fault liability’. It does not matter if the defendant has intended to cause such damage or not.

In other words, this principle held a person strictly liable if the following essentials are applicable simultaneously:

1. Some dangerous thing must have been brought by a person on his land: It is necessary that the thing brought on the land is dangerous. A dangerous thing is defined as something which poses an exceptionally high risk to the neighbouring property such as electricity, vibrations, explosives etc.
2. It must be non-natural use of land: It is the unusual use of land which amounts to special hazards, judged by the standards appropriate at the relevant place and time such as constructing a water reservoir.
3. The thing thus brought or kept by the person must escape: It is essential that the thing causing damage must escape in the area outside the occupation or control of the defendant such as the escape of extremely dangerous wild dogs from an individual’s property in the locality.
4. The damaged caused should be foreseeable to the defendant: Foreseeability of damage is essential to claim damages in cases of strict liability such as accidents in a cracker factory in very much foreseeable to the owner as well as workers of the factory.

Exceptions to Strict Liability

1. 1. Act of God: Acts which are occasioned by the forced nature and cannot be controlled by the agency of men such as earthquake, lightning, severe frost, storm etc. Comes under the category of the act of god.
   2. The wrongful act of the third party: The defendant cannot be held liable if the damaged caused is due to an inevitable accident or wrongful act of a third party.
   3. Plaintiff’s own fault: The defendant cannot be held liable in case damage caused to the plaintiff is because of his own default. For example, if the plaintiff enters into defendant’s garden without his permission and consumes some toxic fruits which caused damage to his health.
   4. Artificial work maintained for the common benefit of both plaintiff and defendant: The defendant cannot be held responsible for damage caused by a source which was equally beneficial to the plaintiff or either consented by the plaintiff such as sharing the same building or a common water resource.
   5. Acts of statutory authority: no one can be held liable for doing acts which the legislature has authorised provided it is done without any negligence on their part such as a municipal corporation.

Criticisms or drawbacks of Strict Liability

After the principle of strict liability was established, many cases were filed under the rule applied in the case of Rylands v. Fletcher. But, after dealing with various cases, the house of lords felt that the laws so formed in the nineteenth century were no longer applicable in this modern era. Most of the times it occurred that all the essentials of the principle were not applicable thus they didn’t found the cases to be justifiable. Some of them are discussed below:

Read v. J. Lyons & Co. [3] (escape of the dangerous thing):

In this case, the defendant took control of the management of an ordinance factory where highly explosive shells for the government were made. An explosion inside the factory caused damage to the plaintiff and several others.

When plaintiff asked for damages under the principle of strict liability, since there was no negligence on the part of the authorities, THE HOUSE OF LORDS upheld the decision and said that although there was an unnatural use of land, no escape of dangerous thing occurred. Thus, no compensation was granted on part of the defendant.

Cambridge water co. Ltd. V. Eastern Countries Leather Plc [4] (Foreseeability of damage):

The plaintiff was a company licensed to water supply while the defendant was a company engaged in manufacturing of fine leather. The defendant company used a volatile solvent known as perchloroethylene (PCE) which seeped into the ground and slowly in 9 months, got mixed with plaintiff’s borehole water 1.3 miles away.

After detection of the chemical, the plaintiff’s borehole was ceased to be wholesome and could not be lawfully supplied. When plaintiff claimed damages, THE HOUSE OF LORDS in negativing the claim said that this kind of percolation could not be foreseen by the defendant and thus, the defendant could not be held liable for the damages claimed.

Transco plc v. Stockport MBC [5] (non-natural use of land):

The plaintiff installed a gas main along an embankment on the stretch of a disused railway line. The defendant laid a tower block of flats which was supplied with water by means of water pipe which the defendant has constructed between the tower block and the water main. The water pipe once fractured and discharged water leading to the collapse of the embankment.

The plaintiff was compelled to do the considerable work to remedy the situation and claimed damages on the rule of Rylands v. Fletcher. The HOUSE OF LORDS in negativing the claim held that the provision of water supply to large blocks of flats did not amount to a special hazard constituting an extraordinary use of land.

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Some Indian Cases where the rule of Rylands v. Fletcher was cited

• State of Punjab v. Modern cultivators, AIR 1965 SC 17
• Jay Luxmi Salt Works (p.) Ltd. V. State of Gujrat, (1994) 4 SCC 1
• Indian Council for Enviro-Legal Action v. Union of India, AIR 1996 SC 1446
• Gujarat SRTC v. Ramanbhai Prabhatbhai (1987) 3 SCC 234

Some English Cases where the rule of Rylands v. Fletcher was cited

• Rainham Chemical Works Ltd. V. Belvedere Fish Guano Co. (1921) 2 AC 465
• Hoare & Co. V. McAlpine, (1923) 1 Ch 167
• West v. Bristol Tramways co., (1908) 2 KB 14
• Musgrove v. Pandelis, (1919) 2 KB 43

Evolution in the concept of strict liability

Case: M. C. Mehta v. Union of India [6]

The case was related to the leakage of oleum gas from one of the units of Shriram Foods and fertilizer industries which lead to several deaths and injuries in Delhi and NCR region. The petitioner M. C. Mehta filed a PIL under Article 32 of the Indian constitution against the dangerous effects of the chemicals used in the factory. Moreover, the Delhi legal aid and advise board claimed compensation for the damages so caused. The court asked the company to pay the compensation and to shut down the factory in those regions and introduced a new concept of “Absolute Liability”.

Concept of Absolute Liability

Where an enterprise is engaged in a hazardous or inherently dangerous activity and it results in harm to anyone on account of an accident which was caused in the operation of such hazardous or inherently dangerous activity. This will make the enterprise absolutely liable to compensate all those who are affected by the accident and such liability is not subject to any of the exceptions or any Strict liability principle as held in the case of Rylands v. Fletcher. For example, if there is an escape of toxic gas, the enterprise is strictly or absolutely liable to compensate all those who are affected by the accident with no exception to the case. [7]

The court earlier pointed out this duty is “Absolute and non-delegable” and the enterprise cannot escape liability by showing that it had taken all reasonable care and there was no negligence on its part and thus is named as “No liability”

The basis of the new rule as indicated by the supreme court was:

• If an enterprise is allowed to carry on any hazardous activity, it is presumed that such permission is conditional on the enterprise absorbing the cost of any accident arising on account of such hazardous or inherently dangerous activity as an appropriate item of its overheads.
• The enterprise alone has the resource to discover and guard against hazards or dangers and to provide warning against potential hazards.

Reasoning given by the court in its judgement:

The judgement made on 20/12/1986 by the supreme court in the bench of three judges including CJ P. N. Bhagwati, D. P. Madon and G .L. OZA gave the following justification:

The law so laid by the English govt. in case of Rylands v. Fletcher was justifiable according to the demands of law at that time. But it is not necessary or binding to the Indian government to strictly follow the rule so laid in the late 19th century because in the modern industrial society with highly developed scientific knowledge and technology, where it is necessary to run hazardous or inherently dangerous industries as a part of the development programme.

This rule was laid in the 19th century when this type of development in science and technology has not taken place as compared to today’s economy and social structure. Law needs to be kept changing according to the needs of the society and evolving social structure. Law cannot afford to remain static.

We need to evolve new principles and laid down new and amended rules which could adequately deal with the problems of a new and industrialised economy. We cannot allow judicial thinking to be restricted to the laws laid down in England or any other country.

We can take light from these sources but we need to make our own jurisprudence. We have to evolve according to the needs and circumstances of our own country. We have to develop new laws and develop new principles to deal with the unusual situation so aroused and likely to arise in future.

Cases citing the case of “M. C. Mehta v. Union of India”

• Jagdish v Naresh Soni, (2007) 3 MPHT 234
• Vellore citizens Welfare Forums and others v. Union of India and another 2016 Indlaw MAD 4514, 2016 (4) MLI 25
• Charudatt Pandurang Koli and others v Sea lord Containers Limited, Mumbai and others 2015 Indlaw MAD 849
• Jaipur Golden Gas victim Association v Union of India and others 2009 Indlaw DEL 2902, 2010(1) ACC 141, 2011 ACJ 1879, 2009 (164) DLT 346
• Vimal Bhai and others v Union of India and others 2009 Indlaw DEL 83, 2009 (157) DLT 477, 2009 (2) ESC 1071

Why the need for the change was felt?

Rylands v. Fletcher and M. C. Mehta v. Union of India: A comparative analysis

Many drawbacks or loopholes in the principle of strict liability; or we can say outdatedness of the concept with the change in time and technological advancements lead to the introduction of new concept or amendment of old concept from “strict liability” or “No-Fault Liability” to “Absolute Liability” or “No Liability”.

• The rule of Rylands v. Fletcher includes non-natural use of land and escape of the dangerous thing from the land whereas the rule in the case of M. C. Mehta v. Union of India requires that the defendant should be engaged in an inherently dangerous activity which will result in harm to anyone.
• The rule of Rylands v. Fletcher does not includes harm caused inside the premises whereas the MC Mehta v Union of India covers all the damages caused inside as well as outside the premises.
• Though the rule of Rylands v. Fletcher is strict as it does not depends on the negligence on the part of the defendant but is not absolute as it is not subject to many exceptions whereas the rule of MC Mehta v Union of India is strict as well as absolute with subject to no exceptions.
• The damages provided in case of Rylands v. Fletcher were ordinary or compensatory whereas, in the case of MC Mehta v. Union of India, the court can allow exemplary damages and the larger and more prosperous the enterprise, the greater must be the amount of compensation payable by it.

Note: In the case of “Charan Lal Sahu v. Union of India” [8], Mishra C.J. expressed doubts related to the rule for damages in case of MC Mehta v Union of India that the case was obiter dicta and a departure from law applied in western countries.

However, this doubt was not accepted in the case of “Indian Council for Enviro-Legal Action v. Union of India” [9] where it was held that the rule so applied was not obiter dicta and suited to the circumstances prevailing in the country.

Therefore, the principle of strict liability, later to be known as absolute liability, was established as the principle of “No Liability”

Conclusion

We conclude that the journey of the concept of strict liability was started from being a “No Fault liability” where the defendant was held liable even when there is no fault on his part. But with the change of time and circumstances, the applicability of this principle was needed to be amended according to the needs of the people because in many of the cases, where the plaintiff was worth compensation for his damages, was not granted compensation on the basis of the rule of strict liability. Since the law needs to be amended with the evolution, the concept of absolute liability was introduced with no exceptions or defences i.e. “No Liability” with regards to the use of an inherently dangerous substance in industries.

References

Dhirajlal, R.&.(2016).The Law of TORTS.Gurgaon: LexisNexis

1. Rylands v. Fletcher, (1868) LR 3 HL 330
2. Fletcher v. Rylands, (1866) LR 1 Ex 265, 279
3. Read v. J. Lyons & Co. (1947) AC 156 (HL)
4. Cambridge water co. Ltd. V. Eastern Countries Leather Plc, (1994) 1 All ER 53 (HL)
5. Transco plc v. Stockport MBC, (2003) 3 WLR 1467 (HL)
6. M. C. Mehta v. Union of India, (1987) 1 SCC 395
7. M. C. Mehta v. Union of India, (1987) 1 SCC 395, P. 421. Approved (except as to the quantum of damages) in Charan Lal Sahu v. Union of India, (1990) 1 SCC 613
8. Charan Lal Sahu v. Union of India (1990) 1 SCC 613
9. Indian Council for Enviro-Legal Action v. Union of India, (1996) 3 SCC 212

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This article is written by Anjali Dhingra, IInd year student, B.B.A. LL.B, Symbiosis Law School, NOIDA. In this article, the author discusses the origin of the concept of trespass in English law. To substantiate the concept, the reference is made to section 462 of The Indian Penal Code and its elements are discussed in detail.

Introduction

The major reason for having laws in the country is for the protection of life, liberty and property of all the citizens along with maintaining peace in the country. India, for penal laws, follows the Indian Penal Code, 1860. One of the important aspects of making IPC is to ensure the right to property to the individuals and also to restrain individuals from interfering or damaging the property of others. For the same reason, the concept of offences against property was added to the penal law and the topic of criminal within.

At one time in history, trespassing was considered a fairly major crime, many times punishable by fines or jail time. Currently, in most state jurisdictions, trespassing is considered a misdemeanour, that of a minor crime. In this article, we will be discussing criminal trespass with special reference to Section 462 of IPC.

Section 462 IPC- Meaning and Elements

The concept of trespass was introduced as a breach to the peace of an individual. Until the law had not stated, trespass was not considered to be a crime for the general public. In the early common law criminal trespass was unknown. The statutes under which sit-in demonstrators have been arrested and convicted, while virtually identical in effect, vary greatly in their wordings.

At that time, criminal trespass laws were not accepted as it was stated that these laws cannot co-exist with the racial discrimination laws. To make criminal trespass as a part of the current legislation, the court was in need of valid reasoning and argument. The Court said that they are open for taking into account possible applications of the statute in other factual contexts.[11]

In many jurisdictions, the crime of trespass still has many common law elements used in early England. The section we are dealing with here is related to section 462 of the Indian Penal Code, 1860. The section makes a person liable if a property is entrusted with him and he tries to open that receptacle containing property, with intent to commit mischief or dishonesty.

The elements of Section 462 of The Indian Penal Code are discussed below:

• There was a receptacle, closed or fastened

The section requires a receptacle to be there. The word ‘receptacle’ is derived from the Latin word receptaculum i.e. a means which receives or holds a thing. As per the Oxford dictionary, it is defined as a repository for anything. It can be a chest, box, safe, closed package, a room, part of the room, warehouse or go-down as well.[3]

Further, the receptacle must be closed or fastened. It can be chained, locked or simply bolted as well.

• The accused was entrusted with the receptacle closed or fastened and had no right to open the receptacle

Section 461 of IPC also deals with the same offence. The only difference it makes is the factor of trust in Sec. 462. Here, the person is entrusted with the property. This is the reason that punishment under this section is graver than that under section 461 of the Code. There is no such information stating whether the person who is entrusting the accused with the property is the owner of the goods or not. But the possession of the receptacle at the time of committing of the offence is with the accused.

Although the accused is entrusted with the property, he/she is not authorised to open or unfasten the same. Now, the question that arises is that will the accused be held liable for breach of trust?

Breach of trust is also divided into the civil and criminal breach as criminal breach defined under Section 405 of IPC. Section 405 expressly mentions the term ‘dishonest misappropriation’ and ‘Conversion’ of property which can be the result of the act of the accused if he goes further after opening the receptacle.

• It contained property or the accused believed that it did contain a property

It is an important factor for the offence. There must be property inside the receptacle or at least the accused must be in a belief that the receptacle contains a property. The property can be movable or immovable (such as a ceiling fan) which the accused desired to have access.

• The accused brakes open or unfasten it

It is not necessary for the receptacle to be locked or chained. Even if it is just bolted and the person opens the bolt, it will come under this section. There needs to be something which has to be unfastened or broken in order to commit this offence. The offence in the section is committed the time receptacle is opened or unfastened.

• The accused did so dishonestly or with an intent to commit mischief

The most important condition is the mens-rea element in the offence. The intention of the accused needs to be looked into before reaching the conclusion. The unfastening or opening of the receptacle needs to be done with dishonesty or with intent to commit mischief. All the elements related to the section which includes criminal trespass, dishonesty, mischief or breach of trust includes the element of intent.

Dishonesty is defined in Section 24 of IPC which explains it as an act done with the intention of causing wrongful gain or loss. The primary intention of the actor needs to be the commission of dishonesty. The act of dishonesty applies only to that of ‘property’ i.e. the intent needs to be the wrongful gain or loss of property or pecuniary or economic gain or loss.

It is the intention that which is important and not whether a man is under a legal duty to disclose or suppress facts within his knowledge[4]. Therefore, where a person with the intention of causing wrongful loss to another makes a false representation to him or suppress certain facts, he will be said to have acted dishonestly even if the law does not require him to state the truth.[5] The only test which can help in discovering a man’s intention is by looking at what he actually did and by considering what must have appeared to him at the time of natural consequences of his conduct.[6]

The other reason behind the act of the accused can be intent to commit mischief. Mischief is defined under section 425 of IPC. It is denoted by any act which is caused with the Intention to cause wrongful loss or damage to the public or any person. Its major element is also Intent. Any act cannot be covered under mischief if no knowledge of requirements under this section or the act was the result of an accident or negligence.

In both the cases of dishonesty and mischief, intention cannot be concluded in case there is any conflict of ownership of that property. If the accused has done the act in an impression of considering the good to be his own, he cannot be held liable. Same is the case where the property has no owner. No person can be held liable for wrongful act or trespass against a property which has no owner.

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The Origin of Trespass in Common Law

The concept of trespass originated in England in the thirteenth century as a general concept which indicates that the defendant had done a wrong and should, therefore, pay damages and be fined. The main emphasis was on providing civil remedies such as payment of damages or return of possession as there was no clear distinction between civil and criminal wrong.

Parliament adopted criminal statutes in the late fourteenth century prohibiting forcible entry on real property. This legislative scheme was further developed in the next two and a half centuries, primarily to provide for the return of possession and to prohibit forcible detainers who refuse to leave the property.

A series of English cases explicitly recognized for the first time the existence of the common law crime of criminal trespass in the first half of the eighteenth century. This development took a long time because of a variety of factors:

• the existence of civil remedies for the tort of trespass;
• the availability of the legislation concerning forcible entry and detainer, which provided both a civil remedy and criminal sanctions;
• the failure to remedy certain conditions such as the general weakness of the executive branch of government and thus of the means for prosecuting the crime—until the sixteenth century.

The recognition of the crime of criminal trespass was complete by the time of the American Revolution, and the individual states adopted the common law crime of criminal trespass.[1]

The common law of criminal trespass was introduced to protect against intruders who poach, steal livestock and crops, or vandalise property[2]. Under common law, an action for trespass to goods lay for intentional and direct interference with another’s possession of goods. Thus, it is the interference of possession and not the title of goods. There is no requirement that the claimant should suffer any damages.

In early English common law, trespassing on the property, particularly that of the king, was considered a criminal matter. It was later in the 14th century, that landowners could sue the trespasser for civil damages. In the early 13th century in England, under common law, the king considered trespassing as a breach of his peace and would summon the trespassers to appear in the court.

This summon was a writ that the king would use to notify the defendant of the charges. Often times, the wrongdoer was fined, but many had no money and were sent to jail instead. It was in the latter part of the 14th century that the money collected from the fines was given to the landowners as a method of repayment for any damages caused by the trespasser.[10]

Conclusion and Suggestion

A person may be entrusted with a closed receptacle, for any purpose, whether by way of security or for safe custody. In either case, if it is closed and deposited, the depositee has no right to open it, but if he opens it, he commits no offence unless his intention was dishonest or mischievous. If however, he is given authority to open it, his opening it dishonestly is not punishable, though he would be, of course, liable under the general law for any offence he may commit respecting it.[7]

The scope of this section is very limited today. There are very limited cases relating to an offence u/s 462 because the act under this section being triable as a summons case, the framing of a formal charge is not necessary u/s 251 of Cr PC. The other reason can be that opening any receptacle without permission is considered as just a civil act of trespass and majorly not reported.

A layman does not consider it as a grave offence and thus it gets neglected if the accused is not able to fulfil his intention of maybe theft or mischief. Trespass to chattels requires interference with the goods and the person is liable as soon as he interferes with the property. There is no requirement that the claimant suffers damage; once the interference has been established, the act is actionable per se.[8]

Moreover, the difference of trust between section 461 and 462 made the offence under section 462 more grave and thus punishment was increased to Three years than two years. But, the offence under 461 is non-bailable and that under 462 is bailable although considered to be graver.

The act under this section makes a person liable for 3 years of imprisonment or fine or both. Along with this act, the act of intention to commit mischief or dishonesty and breach of trust is also committed. Will the person be liable for these acts in case the act is completed which they intend to do such as theft or mischief. Or, since the act is not completed, it will be considered as an inchoate offence. But, as soon as the receptacle is broken open or unfastened, the offence is complete.[9]

Bibliography

1. HUBBARD, F. P., & Khan, D. M. (n.d.). Criminal Trespass – Historical Background – Civil, Forcible, Century, and Crime. Retrieved January 17, 2019, from Law library: American Law and legal information
2. Oliver v. US, 466 US 170
3. The Shorter Oxford Dictionary, 3rd edn., Vol. 1, 1970
4. Sawariya, S. K. (2008). Dishonesty. In R. Nelson, RA Nelson’s Indian Penal Code (p. 156). Nagpur: Butterworths Wadhwa.
5. Kuldeep Singh v. State, AIR 1954 Punj 31, pg. 33
6. Stephen’s history of the Criminal Law, vol II, p. 111
7. Gaur, K. D. (2018). Of offences against property. In K. D. Gaur, Textbook on Indian Penal Code (p. 1003). Gurgaon: Lexis Nexis.
8. Leitch & Co. Ltd. V. Leydon [1931] AC 90 at 106
9. Queen v. Tasuduk Hossein, (1874) 6 NWP 301
10. The Shorter Oxford Dictionary, 3rd edn., Vol. 1, 1970
11. Comments. (1963-1964). Tulane Law Review, 104-155

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This Article is written by Shreya Tripathi of Banasthali Vidyapith, Jaipur. She has discussed “One Nation, One Election” An interesting concept for our country.

Introduction

In reality, elections are the way to make changes in a country because the elected people are expected to make policies and plans for the country and its welfare. It seems to be impossible to hold a credible election without reforming the electoral system. Firing on the shoulder of Election Commission, Prime Minister Narendra Modi and the government have floated another trial balloon. This ruling BJP took inspiration from the U.S. and came up with the idea of holding the elections across the country on a single day. Mr Narendra Modi has taken an effective step for the development of the country. As BJP rides the momentum after its resounding success in U.P Elections, One Nation, One Election is the next big gamble just as demonetisation that brings a huge win for the party in Central and State elections. In India, the concept of frequent elections is followed which should be changed now, as the voters are tired of door patterns in the State. Thus, One Nation, One Election as national formation seems to be preferred by the people and replicated in States too. It could be a win-win chance for Modi government in 2019 Elections if the reform gets a pass but simultaneous election is a serious issue to deliberate upon.

History

The concept of simultaneous election

This concept is not new in India. After the independence and enforcement of the constitution, the first election which was conducted in the year of 1952 was conducted simultaneously. It was in practical from 1952 to 1970. This concept was ended when 4th Lok Sabha was dissolved early due to the premature dissolution of some Legislative Assemblies in 1968 & 1969, the cycle got disrupted. It was Indira Gandhi, who acted as a blithely confident parent of most of independent India’s institutional disruption, who first detached general elections from state elections. She had split the Congress in 1969 and was intent on pushing through a constitutional amendment to abolish privy purses, and in pursuit of a bigger mandate proposed general elections due in 1972 to March 1971. As a result of premature dissolutions and extension of terms of both the Lok Sabha and various state assemblies, the last 48 years have seen separate elections to the Lok Sabha and the assemblies. This recommendation is suggested by our Prime Minister Mr Narenda Modi and as well as promoted by Mr Pranab Mukherjee. This brings an electoral transformation in India. It would be a good change if, the proper implication of policies and rules taking care of the rising need for good administrative officials is carried out. Leadership is not about the next election, it’s about the next generation.

The energy is well received maintained by the majority of people. There are many advantages by opting this method because at present in India we have different State elections every year which creates competition between the parties. The BJP government came up with One Nation,One Election so that all the 29 states have an election at the same time which will help in saving the cost, as well as time for the government and money spent, can be reduced. It is an issue on which there are equal number of people on both sides of the argument, those who support it and those against. Elections give a boost to the economy at a grass-root level creating work opportunities for lakhs of people We can have a view on the following Pros and Cons of this concept which helps in better analysis, they are:

Pros

1. Elections are not only time taking process but hectic and expensive to the government and it spends a huge amount in the campaign for their election, just to win votes. This amount could be put to better use. As you can take the recent example, Mr Narendra Modi made movie, web series and comic book on his character. All this is what? Nothing just an indirect promotion or advertisement.
2. Most of the time is used by the politicians for planning and plotting the game for their campaign that can be used for productive work and in the interest of common people.
3. Election at the same time in all over India will make politicians work more for the development of the country for grabbing more votes just to win the elections which would give them ample of time for policy framing.
4. This would not only stop corruption but will also unite people at the same time and remove discrminitation made on the basis of caste system and bring back the peace of the nation and unity among the people.
5. The frequent poll will create competition among the parties as in India the major developments only take during the election times which will result in the development of infrastructure, roads and other facilities.
6. Frequent elections provide momentary employment, boost domestic consumption and also prevent the transfer of power to a single entity.
7. Riots will not take place using different parties name.
8. It will be good for those who reside outside India because if they come to vote during election then there will be an opportunity for them to vote for all elections at once.   

Cons

1. It is not an easy process to be carried out in India as villages and cities will gather together to cast votes which can lead to chaos. Further lack of administrative staff and attack on booth capturing is not something that the public wants in exchange for their time.
2. Politicians try to make their goodwill among the public and keep a check as they know they can be accountable for their actions, wrongful act of their party members which could snatch their powers. This fear is good to keep the minimum check.
3. Holding both the elections at the same time can lead to mixing of national and state issues where national issues will overlap and politicians won’t be able to give their best.
4. Election period put a good amount of work into the bags of politicians. Cutting down of election will make them inactive and lazy, which would not be fair enough thus the present matter plays an effective role here.
5. Our Nation is developing and so, no one will follow the laws strictly because the government will be far away from the places.
6. The Model Code of Conduct (MCC) which comes into force with the announcement of poll dates, prevent the government from announcing any news, make new appointments, transfer and posting without the approval of election commission this brings normal work of government to stand still.
7. It also destabilizes duly elected governments & imposes a heavy burden on the exchequer.
8. Due to frequent elections, the government is trapped in short thinking & also increases the cost of management to the election commission which has been estimated as Rs 9000 crore.
9. It also puts pressure on smaller political parties, a selection is becoming increasingly expensive.
10. Challenging Constitution provisions and amendments have to be amended to either curtail and extend the term of some of the State assemblies to enable the election commission to draw up a Common Pool Schedule. (Articles 83, 85, 172 and 174)
11. Same parties governing at Central and State level.

In the present scenario, many people are talking about it and it is a core concern in a country like India as it can bring disastrous change in our country. If carried out effectively it would surely make good changes. Winning or losing the election is a secondary part but the main motive is Strengthening the country. One Nation, One language emphasizing on making Hindi as a core medium of communication in the nation. Another such policy which is One Nation, One Tax was introduced currently in the form of GST, the implementation of GST took three years as they didn’t have a full majority in Rajya Sabha but further it resulted in more productive work for the country.

One Nation, One Poll is a fantastic idea to imagine within our mind but it is not as easy as we think it can be. A case of “using a hammer to kill a fly that is likely to end up with a broken surface and not a dead fly”. If One India, One Election is possible the government which form in Central have a majority in both Lok Sabha and Rajya Sabha then they can easily implement the good policies. Frequent elections have its own merits, politicians who tend to forget voters after the elections for 5 years, have to return to them & keep them on their toes. The clear picture of elections which take place in front of us is state government elections and the other one is Central government election. State government election is an election conducted at the State level to appoint the CM of State with the help of elected MLA of a particular area in the State. CM of the State is a King of its State who takes care of it and works for public welfare for a particular State. On the Other hand, the national election which covers the whole country is an election conducted for the PM of the country who is the King of a nation elected with the help of elected MP’s. He carefully watches and keeps an eye on the activities going within the territory of their country and has control over it. The need of State election arises as the PM cannot have an effective control due to a huge population in India and cannot approach to all places that’s the reason why there is a need to have one more election committee to approach every single person of the Country. There would be many hurdles, but if we cross them India can achieve its goal.

There were few questions which were to be answered such as

1. Was India ready to shun the traditional election mechanism and make way for One India, One Election?
2. Does India had the feasibility to adopt this concept?
3. Either it would have reduced or increased more corruption in the country?
4. How efficiently we had conducted the election not only for the number of votes but also for the manpower and safe poll?
5. What would be the Impact on delivery of essential services?

As per Parliamentary Committee Recommendations to hold simultaneous elections, 2 conditions were to be met

1. A motion for a nearly general election must be agreed to by at least 2/3rd of the members present in the house.
2. No confidence motion must be passed by the house and with no alternative government being conferred within 14 days of passing a confidence motion.

The committee also recommended that elections could be held in two phases. It stated that elections to some legislative assemblies could be held during the midterm of Lok Sabha. Elections to their main legislative assemblies could be held with the end of Lok Sabha term. The ministry had submitted that although such a proposal was possible the cost involved would be over Rs 9,000 crore. This exercise will require large scale purchase of Electronic Voting Machines and Voter Verification Paper Audit Trail Machine and this will have to be replaced every 15 years which would again entail more expenditure. The election commission will also need more central armed forces personnel for development at separate polling booths meant for Lok Sabha and State Assembly election. It will also lead to the saving of time and a lot of resources that are going into elections expenses for social security scheme.

“Regardless of who wins, an election should be a time for optimism and fresh approaches”.

Evidence from other countries suggests that simultaneous elections do indeed have a nationalising effect on political competition that is national parties will have more advantage than regional parties. As an alternative to One Nation, One Election suggests avoiding expenses and time wastage on election our government should start an online voting system. It was easy to implement and a number of voters could increase too many by giving rights to vote from any State to his particular region. We had assumed an average of 70% voting but we could increase it to 90% by starting an online voting system. We have saved our money either. Many students or people were not able to vote for their leader due to insufficient and shortage of time and place. The online voting system was implemented & it was easy for everyone to cast votes as rural and urban both had internet facilities which made it easy, efficient and effective in a voting system. But One India, One Election was very hard for an ordinary man.

Conclusion

Finally, it can be said that our country is developing and there is a need of a big leader with the power of authority for all places so that the activities could be carried out in the proper manner in the society. It is time to ponder behind the borderline and traditional ceiling and try to perceive the execution of the simultaneous elections. As we have heard of more hands more help can be easily seen here, each work needs a lot of force to do and this force can be applied here to complete our work with the help of one election.

Let’s take an example of Demonetization. Wasn’t it a tough job? But at last we did it and now the situations are normal. Similarly One India, One Election can be possible if we decide nothing is impossible. But before it, there is a need to make strong election commission and security, to educate and guide the people about it then only it is possible. Politicians from different states spend their maximum time in planning strategies for their party instead of giving full attention to problems of common people, they become greedy for votes and power. As a result, the common public is the sufferer. In maximum cases, Central government involve as people’s problem are not taken effectively will result in the involvement of central and resolving their dispute. Thus both central and state are equally important otherwise power will be concentrated in one hand and chaos will arise in the country which will also lead to ignorance of common people and their problems. We believe India has the capability and it can do this if every Indian unite and work for this idea in a positive manner, leaving all the evils back, being selfish and greedy, let’s make a new start not just for our own benefit but for the development of country and interest of common people. India already has major issues like poverty, unemployment, corruption so to eliminate them we need to bring some change and it could only be possible by every individual’s effort. It’s time to think upon and take action on it otherwise it will be ill-suited for the India of today when the differences among its states are the starkest in the world.

Election days come and go. But the struggle of the people to create a government which represents all of us and not just one person – a government based on principles of economic, social, racial and environmental justice that struggle continues.

Reference

1. https://www.news18.com/news/opinion/opinion-one-nation-one-election-is-holding-simultaneous-polls-feasible-in-india-2113801.html
2. https://www.orfonline.org/expert-speak/42687-why-one-nation-one-election-is-against-citizens-interest/
3. https://aamaadmiparty.org/opinion-one-nation-one-election-will-kill-the-spirit-of-indias-constitution/
4. https://www.firstpost.com/politics/simultaneous-elections-has-its-advantages-but-heres-why-one-nation-one-poll-bothers-opposition-4966741.html
5. https://www.indiatoday.in/elections/story/one-nation-one-election-is-not-my-idea-says-pm-modi-1276279-2018-07-03

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This article has been written by Ravi Shankar Pandey, a 1st-year student of Dr. Ram Manohar Lohia National Law University, Lucknow. In this article, he has discussed the qualification along with the roles and responsibilities of the Oath Commissioners in India.

Introduction

Commissioner of oath or oath commissioner is a law officer, usually a fresh lawyer, appointed by the Registrar of the High Court under legal provisions. Oath commissioners are the persons responsible for administering and witnessing the solemn affirmations or swearing of oaths which is required for maintaining the sanctity of the legal document which acts as a certification that the declaration  has been rendered under the competent authority is true and thus, may be used as per the judicial requirements. In simple terms, their job is to attest the affidavits of the deponents. The presence of oath commissioners is enough to provide inherent value to the documents which are to be presented for any task requiring genuineness and is related to the individual concerned.

Before forwarding the documents further, oath commissioners are required to initially ensure, about its authenticity and when they feel contented with the documents and information provided to them, they may certify them by signing.

It is a general convention that only those fresh law graduates who are unable to pursue litigation or other career opportunities for financial restraints adopt this career to serve as oath commissioners. However, we may say that their role is as vital as any other person in the whole decision-making body.

What is an Affidavit?

The affidavit can be simply understood as “a written statement which is voluntarily made by a person, before a person who is authorised by law to administer affirmations and oaths in order to attest them”. Attesting an affidavit or a declaration provides a legal sanctity and recognition to it along with a binding value (similar to the value a paper note due to the signature of the RBI governor) for its further use as per judicial or administrative requirements.

An affidavit is a tool to guarantee a person’s word which when discovered to be untrue, may result in a necessary action against the person who has given the false undertaking. However, the use of affidavits in everyday life for certification may also be seen as the distrust of the government in its people.

Indian Oaths Act, 1969

Jeremy Bentham has defined oath as “a ceremony composed of words and gestures, by which Almighty is engaged eventually to inflict on the taker of the oath, or swearer, as he is called, punishment in quantity and quality liquidated or more commonly unliquidated, in the event of his doing something which he, the swearer, at the same time and thereby engages not to do, or omitting to do something which he in like manner engages to”.

From ancient India, oaths are treated as the species of ordeal which fall under the province of dharma thinkers. This was the main reason that the oath making process, before the enactment of the Oaths Act, was done with the assistance of sacred texts like Geeta and the holy Quran.

Indian Oaths Act which came into force in 1969 by repealing the old act of 1873. It contains 9 Sections which deal with the commission and administration of oaths by oath commissioners by empowering the Courts and persons for the task of administration. In addition, the Act also prescribes the form or template on which the attestation of the oath administered may be carried out in its schedule.

Similarly, under Section 8, the Act bounds a person giving evidence to state truth on that subject for maintaining the sanctity of the document which is to be presented in the Court.

Qualification required for appointment as an Oath Commissioner

Any person enrolled as an advocate with bar council of India having more than two years of practice and less then three is eligible for appointment as an oath commissioner.

So, for a person to reach that stage of qualification, he must follow certain steps:

1. He must get a law degree. Now in India, the process of getting a law degree is not that time taking as it used to be in the past. Now, one may get admission in a law program right after his senior secondary (class 12th) in courses like B.A./B.Com./B.Sc.LL.B. which are 5-year integrated programs. On the other hand, if you want to go for legal studies after your graduation, you still go through a three-year LL.B. program and may solely focus on your law without having any pressure of liberal subjects which form a major part of the 5-year program.
2. Now, after you have completed your legal studies and received your degree from your institution, you may apply for enrolling yourself to get the license from Bar Council of India to become a practicing lawyer (advocate) in any state bar council which is regulated under Advocates Act 1961 and to fulfill the requirement of enough experience for appointment as a notary.
3. An advocate practising for more than two years and not satisfied with his employment may request the Registrar of the High Court of that particular state for his appointment as an oath commissioner. He must state in his application that he is not capable of earning his livelihood from his profession.
4. After considering his application fit, the Registrar may appoint that person as an oath commissioner. It must be kept in mind that such appointment is meant for supporting the advocates financially only and this is the reason that the term of the post is 3 years from the date of appointment and is not extended thereafter.

Works and Responsibilities of an Oath Commissioner

As the name suggests, the task of an oath commissioner is supervision and administration of the oath. But, it requires further explanation discussed below:

1. The post of oath commissioner is commissioned under section 139 of Civil Procedure Code, section 297 of the Criminal Procedure Code and under section 3 of the Indian Oaths Act. He is responsible for attesting affidavits for judicial proceedings only. An affidavit which is to be filed before an administrative or an executive authority cannot be attested by an oath commissioner.
2. The appointment of an oath commissioner is limited to a particular court for a limited time frame. He is expected to be present in the court premises during the period for which he had been commissioned.
3. The place where the oath commissioner will reside for attesting the documents is decided with mutual consent of concerned Bar Association of the concerned complex and the oath commissioner himself along with other oath commissioners, if and when required.
4. The Bar Association of that particular place has the responsibility to arrange a place for the oath commissioner where he will reside during the working hours (10:00 am to 5:00 pm ).
5. The presence of at least one commissioner is mandatory at the place allotted during the working hours for attesting affidavits.
6. The Bar Association of the concerned place is required to ensure the presence of oath commissioners during working hours.
7. All oath commissioners are permitted to attest the affidavits during working hours in their respective chambers situated within the court complex. The availability of oath commissioner may be on a rotation basis. However, it must be noted that the work of attesting cannot be done in court buildings, Bar and lawyers room, lobby area or canteen premises etc.
8. The oath commissioners are expected to follow their dress codes during office hours.
9. Oath commissioners are required to maintain the following information in their diary:

1. Date and the serial number of the affidavit.
2. The case number for which affidavit is being attested.
3. Name of the deponent (the person making the affidavit)
4. Name of father/mother of the deponent.
5. Address of the person deponent (as per the affidavit)
6. Name of the person who identifies the deponent
7. Signature of the deponent along with the address of the person identifying the deponent (in some cases).

10. Every oath commissioner should possess different rubber stamps providing space for the following details:

1. Name of the oath commissioner in block letters.
2. The period of commission along with the unique number given by the High Court.
3. The statement by the High Court that the oath commissioner has been appointed by the High Court.
4. Space for the name, signature and occupation of the person who identifies the deponent.
5. The name of deponent along with the name of his/her father/mother’s name.
6. The address of the deponent along with the serial number of the affidavit.
7. Space for signature of the oath commissioner.

11. The oath commissioner attesting an affidavit is required to scrutinize it in order to make it in the correct form.

12. When the oath commissioner knows the deponent beforehand, he shall mention it in the form of a certificate.

13. When the deponent is illiterate, it is the responsibility of the oath commissioner to read the affidavit along with translating and interpreting it. The oath commissioner shall certify the facts and render the consequences of the affidavit to the deponent in the language known to him.

14. When the language is known to the deponent, the oath commissioner is required to certify that the deponent is well versed with the affidavit and had acknowledged the information present in the affidavit as correct and true.

15. If the deponent is a pardanashin lady, there must be a separate affidavit for the person identifying her unless she is known to the person administering the oath.

16. Every exhibit must be marked, initialed and dated, by the oath commissioner before it is affirmed or sworn.

17. The Register maintained throughout the term of the oath commissioner is generally returned after the expiry of his term to the district and the Session Judge or deposited to the respective High Court, as the case may be.

The difference between an Oath Commissioner and a Notary

Although the task and nature of the work are quite similar in both the professions, there are differences between the two however minute they may be. Some of the differences are discussed below:

1. An oath commissioner’s job is to attest only those affidavits which are to be presented in the court in judicial proceedings. Whereas, a notary is empowered to attest every document required in day to day life by the public such as documents related to property, business affairs, deeds etc., so that they can get legal recognition. A notary can also certify the copy of a document as original copy this adds legal sanctity to it and it’s also empowered to translate the document as per requirement and subsequently certify it as a true translation.
2. An oath commissioner is appointed by the Registrar of respective High Court under whose jurisdiction the appointment is to be made. On the contrary, a notary is adjusted by the State Government or the Central Government under Indian Notaries Act.
3. A notary is a qualified person having at least ten years of experience as an advocate or a judiciary qualified person as required under Notaries Act whereas an oath commissioner is a fresh advocate (around two years after getting registered with the bar) which applies for the post generally for establishing his legal career.

How much do Oath Commissioners earn?

An Oath Commissioner’s wage and remuneration is mostly dependant on the expertise that he earns through his clients. He may charge reasonably for the task of attestation as per the established norms of his Bar Association. However, he is expected to always keep a record diary with himself for the money he received as his fees for attesting the affidavits and declarations. The Courts are, however free to issue the guidelines.

Conclusion

As Oath is administered in the name of God, in the general form of “I do swear in the name of God that what I shall state shall be the truth, the whole truth and nothing but the truth”, it clearly shows the sanctity that is required to be maintained and what is attested and forwarded, must be the truth as it is known to all the persons involved whether he is the person making the oath, the witness or the Oath Commissioner involving in the task of attesting.

However, there are many cases where the Oath administered was due to coercion and fraud especially, in the sale of the property. Even, the seriousness and piousness which used to be earlier have decreased drastically which has resulted in a state of dilemma where even after the attested document is presented in the Court, one cannot say confidently that the proceeding is undergoing with the assistance of utmost true document. Thus, the responsibility of the oath commissioner has increased in the recent past to keep a more cautious check on the process of oath commission.

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

At 25, I was in a big hurry. At 32, I feel like I have a long way to go, and while speed matters, I am running a marathon and not a sprint. I know the best years are ahead from now. And I can work towards it.

We are all a work in progress.

The difficult part is to find what to progress in, how to progress, how to measure if you are really progressing and to never allow the feeling that we have arrived to set in.

There is just so much to do! How much of that have we achieved?

When I think of all the things that can be done, and all the things I want to do, I feel like a pygmy. Too small. Too weak. Too little time. Too little resources.

Not enough expertise.

Sure, I am better and I keep improving every day, but while that is a blessing I still feel inadequate.

The only way I know that makes me strong is to stand solidly behind a cause that is larger than myself, that I really care about and let that guide me through.

Put in place one brick at a time. Add one more stroke of the brush to the masterpiece – expect that I am not the painter and I have no idea what it is going to look like at the end.

Giving up control has been a critical lesson. The other critical lesson is to give up being the person you have been in the past, or the person that you currently are, so that you can become something else.

Something magnificent. Something you may be able to only imagine, just partially, today.

At 18 I had no idea about the person I will become at 32. But I think the 18 year old me will be damn proud of who I have become if he could meet me today.

How would your 10 year younger version feel if he or she meets you today, over a cup of coffee? Will he or she be proud? Will he think you look much better now? Does your fierceness now tamper with more love, kindness and gratitude? Have you delivered on the promises he or she made a decade ago?

What were those promises?

And do you remember that you are a work in progress? Do you believe in your heart that you will go much, much further? Do you believe that you are destined for greatness?

I believe that. I am meant to be great. I have to be best of the world at what I do. My skills should be the stuff of legends. Anything less is a failure.

How far do you have to go?

How do you feel about yourself? Are you making progress? Are you happy with life? How do you think you are going to grow?

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This article is written by Namrata Kandankovi, a student of Symbiosis Law School Pune. The author of this article has discussed the validity of Aadhar Card with special reference to Right to privacy and the judgement given by Hon’ble Supreme Court of India in Aadhar Case.

Evolution of Right to Privacy

The inception of the idea of right to privacy in India dates back to 1800, where the British courts invoked the concept of right to privacy, and the same court upheld the right to privacy of a pardanashin woman to have an access to her balcony without the fear of the neighbourhood gaze. The jurisprudence of right to privacy has evolved over a period of time and has been read into article 21 of the Indian Constitution. It has also been held by the Supreme Court that right to privacy is an essential part of personal liberty.

The concept of right to privacy has gone through numerous developments and changes. In the initial stages, privacy was taken as something that is granted on the part of the citizens like that of freedom. Whereas, with various cases being dealt with by the Supreme Court, the concept of right to privacy has seen changes throughout its journey. The very first judgement of the Supreme Court on privacy not being a fundamental right was in the case of M P Sharma v. Satish Chandra.

While dealing with this case, which involved the search and seizure of the documents involving the Dalmia group, the Supreme Court held that the makers of the Indian Constitution have not envisaged fundamental aspect to right to privacy and this was similar to that of the 4th Amendment of the US Constitution. Even in numerous other cases, there has been a parallel line drawn between the American aspect of right to privacy while delivering the judgment of M P Sharma v. Satish Chandra.

It was after nine years of judgment being passed in the case of M.P. Sharma, the matter of right to privacy again came to the court in the case of Kharak Singh v. State  of Uttar Pradesh. In the following case, Kharak Singh, an alleged dacoit was subject to surveillance and secret picketing and in addition there were periodic visits paid to his home, and a series of inquiries were held.

When the case was filed by the plaintiff against such developments, the court came out with the verdict following the previous pattern and held that right to privacy does not come under the ambit of fundamental rights. The silver lining of this judgment was the dissenting opinion put forth by the Justice Subba Rao, wherein he held that though the constitution has not declared the right to privacy as a fundamental right, it still remains a very essential ingredient of personal liberty.

It was finally in the case of Govind v. State of Madhya Pradesh, the court finally held that right to privacy falls under the arena of fundamental rights enshrined by article 21 of the Constitution of India. This judgment was however, by a smaller three-judge bench and the bench had further held that the right is not absolute and it can be interfered by the procedure established under the law.

A very recent and a humongous development in the area of right to privacy was in the Aadhaar case, which again raised the question whether right to privacy was a fundamental right and called the attention of the courts for the sake of putting a final end to the saga which was in existence with various changes being brought in it with the passage of time. This will be dealt with in detail in the next segment of the article.

What is Aadhaar?

Aadhaar which was introduced in the Rajya Sabha in December 2010 by National Identification Authority of India Bill, is a twelve digit unique identification number issued to the citizens of India by the central government. The issuance and management of Aadhaar come under the authority of Unique Identification Authority of India (UIDAI).

It is to be understood that Aadhaar is evidently an identification document. Aadhaar records and verifies the details of every resident Indian, which includes demographic and biometric data. In addition to this, it should be taken note that Aadhaar is not meant to replace the already existing identification documents like that of PAN cards, driving licence, passport etc. But is to be used as a one-time identification number and in addition to this, the financial institutions, banks and telecom companies can use aadhaar as a know-your-customer(KYC) verification mode and can also maintain profiles.

When the case of aadhaar was challenged in the Supreme Court, it was maintained by the court that the government does not have the right to make aadhaar mandatory. The government was permitted to use it for some welfare schemes and not all welfare schemes and further held that the government cannot be stopped from using aadhaar for non-welfare schemes. The list released by the government which makes aadhaar mandatory in specific schemes(both welfare and non-welfare schemes) includes the following

• Iron ore, limestone and beedi workers, need aadhaar to avail household subsidiary.
• People who wish to avail welfare schemes under the integrated department of horticulture and Janani Suraksha Yojana need mandatory aadhaar.
• Under the ministry of women and child development, aadhaar is made mandatory for the ones who wish to avail training under Integrated Child Development Services.
• In order to avail benefits under Grih Kalyan Kendra scheme, aadhaar is made mandatory.
• For the purpose of financial support under National Women development Scheme aadhaar was made mandatory.

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The inception and chronology of Aadhaar case

• Birth of Aadhaar 2006-07– It was the UPA government which conceptualised a scheme for unique identification for the below poverty line families. Following this, the scheme of aadhaar was approved by the then government along with its principle.
• September 2009– The centre constituted the Unique Identification Authority of India UIDAI for the purpose of issuing of Aadhaar to the citizens. Nandan M. Nilekani, the architect of Aadhaar was appointed as the first chairman of UIDAI.
• 2012– The retired justice K S Puttaswamy filed a writ petition in the Supreme Court of India. Puttaswamy, the retired Karnataka High Court judge challenged the policy of the government which made aadhaar card mandatory for every individual and the plans of the government to link biometric ID of the citizens with various government schemes. He further laid down his contentions that aadhaar violates equality and right to privacy granted by the constitution of India to every citizen.
• 23rd September 2013– The Supreme Court in an intern order held that no citizen should be made to suffer for the reason of not having an aadhaar card even when it is made mandatory by the government for the purpose of availing of certain benefits.
• 24th March 2014– The Supreme Court passed another order in this year which asked the agencies to revoke any orders made by them, which makes aadhaar mandatory for availing benefits.
• February- March 2016– The Supreme Court’s statement given in identity verification in the case of Lokniti Foundation v. Union of India was interpreted by the Modi government, and in furtherance of this, the government made the linkage of mobile number with aadhaar mandatory.
• June 2016- The centre issued guidelines to the states to link the aadhaar with the domicile and caste certificates.
• September 2017– The constitutional bench upheld the hearing of the validity of aadhaar, but at the same time, struck down the provision which made linking of aadhaar with the bank account, school admissions and mobile phones mandatory.
• January 2018– A five-judge bench began the hearing on the aadhaar case again.
• May 10 2018- The Supreme Court completed the final hearing on the long-standing aadhaar case and further reserved its verdict on the case.

The final judgement on Aadhaar

The Supreme Court, in its final judgement on Aadhaar upheld the validity of it and further stated that the Aadhar Act does not violate the right to privacy when a person agrees to share his biometric data. However, the Supreme Court barred the private companies from making use of aadhaar card for the purpose of KYC authentication. At the same time the apex court held that aadhaar will still be in use for various other purposes which would include PAN card and ITR filing.

Certain important aspects of the judgement in the case of K.S Puttaswamy v. Union of India are to be viewed in a detailed sense, for the purpose of better understanding of the ruling of the court on the issue of right to privacy concerning aadhaar.

• While deciding the case of K S Puttaswamy v. Union of India, a five constitutional judge bench which was headed by the then chief justice of India Deepak Misra held that aadhaar would be mandatory for the sake of filing of income tax returns and also for the allotment of Permanent account number (PAN). Hence, a taxpayer or a person in need of PAN card cannot shun from the aadhaar.
• The apex court ruled that aadhaar is no longer a requirement for the students appearing for CBSE, NEET and UGC exams. In addition to this, the court also held that schools are no longer allowed to seek aadhaar for the purpose of admission.
• When it comes to availing of facilities from the welfare schemes brought by the government aadhaar is a must. Also, for the sake of making use government subsidies aadhaar is a must as the subsidies schemes are brought into effect for the very purpose of upliftment of the poor and the people from the marginalised sectors.
• The Supreme Court, while delivering the judgement, went a step ahead and struck down section 57 of Aadhaar Act and termed it unconstitutional. By undertaking this measure, the Supreme Court ensured that no private entity or company can now seek aadhaar details from its employees.
• While delivering the judgment, the top court also struck down the National Security Exception under Aadhaar Act. This particular act was undertaken by the government to indirectly provide greater privacy to an individual’s aadhaar data and the same was ensured by way of restricting the government access to it.
• The Supreme Court while delivering the judgment made a special exception to children and further held that no child should be denied of the governmental schemes if he or she does not have aadhaar.

Explanation of Right to Privacy

With the fallout of the Aadhaar (Targeted Delivery of Financial and other Subsidies, benefits and Services) Act of 2016, there came a requirement for the collection and usage of personal data of the citizens and in support of this move, the government put forth its views that, the collection of personal data and enrollment of each citizen under the aadhaar act would further make it beneficial for the lives of millions of poor people as they would now be able to directly avail education, public benefits, subsidies, food, home and shelter and other basic amenities. The government further claimed that aadhaar was a panacea to put an end to the existing negative elements in the society like that of corruption, money laundering and terror funding.

On the other hand, in contrary to the statement of the government the Supreme Court expressed its apprehension on the aspect of aadhaar by bringing the attention of the public towards the risks incurred in making the personal information of individuals quickly falling in the hands of the private entities and service providers which might result in dire consequences.

By taking a look at the recent developments it can be said that numerous national schemes like that of Aadhaar, DNA profiling, Crime and Criminal tracking network and system (CCTNS), National Intelligence Grid- NATGRID, Rashtriya Swasthya Bima Yojana- RSBY, Brain Mapping, Reproductive Rights of Women, Privileged Communication all these involve the collection of personal data like that of bodily samples, fingerprints, iris scans and there is an additional need for this data to be stored in an electronic form. Keeping all this in mind it should be understood that, this may lead to the grave danger of data leakage.

In order to curb the occurrence of a data breach, the Supreme Court had repeatedly been asking the government if it has plans to set up a robust mechanism for data protection. In response to this, the government had stated that a committee of experts under the leadership of former Supreme Court judge B N Srikrishna had already been constituted on July 31, 2017 and this committee works for the identification of key data protection issues and in addition to this, the committee also suggested a draft data protection bill.

The opinion expressed by various judges

The Supreme Court delivered the much discussed and debated Aadhaar case comprised of five judge bench which included the then Chief Justice of India Deepak Misra, Justice A K Sikri, Justice Ashok Bhushan, Justice A M Khanwilkar and justice D Y Chandrachud. This constitutional bench upheld the validity of aadhaar barring a few of provisions which were related to disclosure of personnel data, use of aadhaar ecosystem by private companies and cognisance of offence. The majority opinion was laid down by Deepak Misra, A K Sikri and Khanwilkar. While justice Chandrachud and Ashok Bhushan gave the dissenting opinion.

The majority opinion by Deepak Misra, A.K. Sikri and Khanwilkar

• Considering the aspect of obtaining of aadhaar card, it was laid down by the bench that, once the biometric information is received and the aadhaar is issued, there is no possibility of obtaining a duplicate card as the information remains intact with the UIDAI, after the issuance of the same. Whenever a second attempt is made for enrolling to the aadhaar, the biometric data would immediately match the already existing information. Consequently, the second attempt would be rejected. The bench in support of this point held that it is for this reason aadhaar was named Unique Identification (UID).
• The bench while examining the said law, which was said to be in violation of the right to privacy, took into consideration the question whether the court was supposed to apply ‘strict scrutiny’ standard or ‘just, fair and reasonable standard’. In the particular judgment of aadhaar, the court adopted the concept of ‘just, fair and reasonable test. This was adopted by the court as it aligned with the reasonable restriction which the court has the power to place reasonable restriction as provided under article 19 of the Indian Constitution.
• Dragging the attention of the public to the concept of Surveillance State, as there were arguments put forth that the aahaar was putting in place a surveillance state. The court dismissing all the arguments of aadhaar leading to creation of a surveillance state held that during the enrollment for aadhaar minimal biometric data like that of iris scanning and fingerprints are collected and the UIDAI does not collect data like that of location, purpose and details of the transaction and hence the information collected for the purpose of aadhaar remains in the silos and further the merging of silos is prohibited.
• After going through a detailed discussion on the aspect of right to privacy, the bench held that not all matters pertaining to an individual fall under the ambit of inheriting the right of privacy and only those with a reasonable expectation of privacy are protected under article 21 of the Indian Constitution.
• The court in order to adjudge the reasonableness of invasion of privacy laid down a triple test for aadhaar in which it came out with the verdict that aadhaar was backed by a statute, that is the aadhaar act. Moreover, it was also held by the bench that the act serves the legitimate state aim which can be inferred from the introduction of the act and also the statement of objects and reasons of the act which strive to reflect the aim of the act.
• The bench to arrive at a particular conclusion regarding the aspect of right to privacy considered under its ambit three significant tests which were

1. The Existence of law.
2. Such acts are required to pass the test of proportionality.
3. A Legitimate State interest

The court finally concluded that all the above tests were satisfied while delivering the aadhaar judgment.

“Aadhaar Act is unconstitutional”: A fiery dissent by Justice D.Y. Chandrachud

While the majority of the bench upheld the constitutional validity of the aadhaar act, Justice Chandrachud strongly dissented from the bench in his opinion and further laid strong contention to establish that aadhaar is unconstitutional in its very nature.

• While putting forth his empathic dissent from the majority, Justice Chandrachud held that Constitutional guarantees cannot be compromised by the vicissitudes of technology.
• The expression of dissent on the aadhaar by Justice Chandrachud started with the very legislative process of aadhaar. While majority of the bench expressed their opinion which was in line with Justice Sikri’s contention that there was nothing wrong with the aadhaar, justice Chandrachud condemned the introduction of Aadhaar and termed it to be ‘Fraud on the Constitution’.
• The next aspect regarding the expression of dissent by Justice Chandrachud to be taken note of is the introduction of aadhaar as a money bill. Justice Chandrachud laid down that passing aadhaar as a money bill was against the notions of the Indian Constitution. In addition to this he further laid down that the act of the speaker of Lok Sabha allowing the aadhaar to be passed as a money bill should be subject to a judicial review.
• Justice Chandrachud agreed on the same lines with the majority of the judgment of the on the aspect of Aadhaar Act being a legitimate act, but at the same time he laid down that the act does not create any kind of robust mechanism for the protection of personal information of the citizens.
• He further laid down that allowing private parties to access individual’s data would lead to profiling and this in turn causes ascertaining of political views of a citizen. Hence, he put forth his opinion that the data should all the time vest with the individuals itself as it is of prime importance to them and not following the same may lead to the hampering of the situation.
• Lastly, he contended that now it is impossible to live without aadhaar in India, but at the same time, it is violative of article 14 of the Indian Constitution. He stated that there would be a grave chance of infringement of the right to privacy if the aadhaar is seeded with every other database.

Is Aadhaar in Jeopardy?

During the time of discussions on the aadhaar and the law being approved by the parliament, aadhaar was considered to be serve the interests of rural population and the marginalised sector by enabling them to access the entitlements and governmental schemes which were meant for their upliftment, but during the course of time, it has come to the notice of the population that aadhaar has just made the enabling of these schemes even more difficult.

Reetika Khera, a social scientist stated in one of the interviews with Times of India views in the following manner- She initially believed that aadhaar is a remedy in search of  disease, but now she believes remedy is worse than the disease itself.

A study held during the end of October 2017 revealed that approximately 500 million subscribers had already linked their aadhaar with their mobile numbers. The prime question to be taken under consideration here is, if the government brought aadhaar into effect for the purpose of facilitating the access to its scheme, why was there a need to force people to link their mobile numbers with aadhaar? why is the government linking aadhaar with the telecoms? and who is to take responsibility regarding this?

There even arises a need to understand the onus behind linking aadhaar to various other personal details like that of bank accounts, health insurance and etc. This calls for immediate attention as it leads to the creation of the digital profile of a person based on the data which is aggregated and there is every chance of this data being misused.

The lack of protection of the privacy of an individual can further be proved by the provision of the new e-aadhaar password. The e-aadhaar password is a combination of the first four letters of a person’s name and his or her year of birth. There is a highly likely probability of this password being easily known by friends, family, acquaintances and often strangers or security guards who would want to confirm the identity of a person before letting him or her inside the office, building, theatre or airports.

Months after the aadhaar act coming into force, the Karnataka government in its statement pointed out that its department had faltered in terms of issuance of the aadhaar cards. The state’s top executive took the notice of the issue that most of the department did not have the knowledge about how to seed the aadhaar into the database.

In addition to this several complaints were registered throughout the state regarding the mismatch in the number of aadhaars issued which had actually surpassed the population of the state in totality. There were even complaints of denial of genuine services to the beneficiaries.

A number of activists even put forth the contention that the introduction of Karnataka Aadhaar Act would further lead to an increase in the number of cases where genuine beneficiaries are denied services.

Conclusion

From a detailed analysis of the case of Aadhaar, it can be finally said that the case has gone through various changes from the date of its origin, there were numerous issues taken into consideration like that of protection of citizens at large, serving the interests of justice and upholding the concept of privacy.

Thinking from the perspective of various people it can be said that, there arises a difference when it comes to interpretation of the aadhaar case from one person to another and the same was even seen in the argument put forth by the five judge bench, as there was a variation in the contentions put forth by three of the judges who upheld the constitutional validity of aadhaar and Justice Chandrachud strongly dissented from the majority judgement and his arguments were in contrary to that of the majority of the bench.

Further, there is a dire need to bring changes and cover the loopholes which exist in the aadhaar case. Otherwise, it would again pose as a threat to an individual’s right to privacy. There is also a need to analyse if the aadhaar is serving the purpose which it was meant for and if not there needs to be a mechanism which needs to be adopted to make aadhaar serve its real purpose. A meticulous look into the case, analysing the demerits and merits and trying to curb the faults and the negative aspects is the need of the hour.

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The article has been written by Subodh Asthana, a student of Hidayatullah National Law University. The author has discussed the Nature and Essentials of Partnership under the provisions of the Indian Partnership Act, 1932.

The term “Partnership” has been defined under section 4 of the Indian Partnership Act, 1932. It was in the year 1932 when a separate law of Partnership was passed, before that all the matters about the Indian Partnership were dealt with by a chapter in the Indian Contract Act, 1872. Contract Act was not able to suit the needs of the business community; therefore it became essential to come up with a new exhaustive amendment in the form of Indian Partnership Act which may suit the needs of the business generation at that point of time.

Nature of Partnership

Whenever at least two people hold hands to set up a business and offer its benefits and misfortunes, it is called Partnership. Section 4 of the Indian Partnership Act 1932 characterises partnership as the ‘connection between people who have consented to share the benefits of a business carried on by all or any of them representing all’.

Partners are the people who have gone into partnership independently with each other. Partners all in all are called ‘firm’. The key highlights of the partnership are as per the following.

Two or More Persons

There ought to be, at any rate, two people meeting up to frame the partnership for a shared objective. As it were, the base number of partners in a partnership firm can be two. Indian Partnership Act, 1932 has put no constraints on most extreme quantities of partners in a firm. Be that as it may, nonetheless, the Indian Companies Act, 2013 puts a point of confinement on some of the partners in a firm as pursuing.

For Banking Business, Partners must be not exactly or equivalent to 10.

For Any Other Business, Partners must be not exactly or equivalent to 20.

On the off chance when the number of partners surpasses the limits, the partnership ends up unlawful.

Partnership Deed

Agreement to carry on business between the partners, the partnership appears. The partnership agreement can be either oral or composed. The Partnership Act does not necessitate that the agreement must be recorded as a hard copy. Be that as it may, when the agreement is in composed structure, it is called ‘Partnership Deed’. Partnership deed ought to be appropriately marked by the partners, stepped and enlisted.

Partnership deed, for the most part, contains the accompanying subtleties.

• Names and Addresses of the firm and its primary business;
• Names and Addresses everything being equal;
• A commitment of the measure of capital by each accomplice;
• The bookkeeping time of the firm;
• The date of initiation of partnership;
• Principles concerning a task of Bank Accounts;
• Benefit and misfortune sharing proportion;
• The rate of enthusiasm on capital, credit, illustrations, and so on;
• Method of reviewer’s arrangement, assuming any;
• Pay rates, commission, and so on, if payable to any accomplice;
• The rights, obligations, and liabilities of each accomplice;
• Treatment of misfortune emerging out of indebtedness of at least one partners;
• Settlement of records on the disintegration of the firm;
• The mode for a settlement of disputes among the partners;
• Guidelines to be followed in the event of confirmation, retirement, the demise of a Partners; and

Some other issue identifying with the lead of business. Ordinarily, every one of the problems influencing the relationship of partners among themselves is canvassed in the partnership deed.

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Defining Partnership

The term partnership has been explicitly established under section 4 of the Indian Partnership Act as follows.

• The partnership is the agreement between persons.
• Organised to carry on business activities.
• To share profits and losses.
• Mutual Agency.

Thus the four grounds determining the valid and binding partnership between the persons are as follows:

Agreement

Section 5 of the Indian Partnership clearly rules out that relation of partnership from the contract must be a result of a valid agreement which must be mutually agreed by all the partners. In various judicial pronouncements, it has been ruled that if there is no agreement, then the arrangement will not be considered as an agreement.

It is to be noted that Partnership must not be created by any status. E.g. The members of HUF will not be considered as the partners, also if husband and wife are carrying on any business, then they will also be not considered as partners unless there is an agreement governing them. The requirements of the same have been specified by the Supreme Court in CST vs K. Kelukutty(1). It has been clarified by the courts’, section 4 itself uses the word “Who have agreed”. Therefore families carrying on business will not be governed by Partnership provisions. The interests of partners in the firm are governed by the rules of Contract for which they have entered.

The partnership between Family Members can be termed as a partnership only after they agree to draft an agreement and contract, then only they will be governed under the provisions of the Indian Partnership Act. Only if the business was governed by an agreement and contract, then a partnership shall be recognised as a valid partnership, which was held in Lakshmiah v Official Assignee of Madras wherein Court ruled that if there is any specific agreement which governs the partnership principles then it doesn’t matter whether it is made between a joint family or it is the collaboration of family members.

Therefore the above ground must be fully satisfied to register a firm or partnership under the provisions of the act.

Business

A motive of partnership firm and partnership as a whole must be to do business. This should not be judged with a strict interpretation. In some of the judicial pronouncements, it has been ruled by the judiciary that the term business is the activity which results in accruing more and more profits by a particular organisation. However, it is not necessary that a business must have long chains and ventures. A partnership may even exist in a single venture business. It is the carrying on business in a particular way, which constitutes a valid partnership. The court in Khan vs Miah(2) has ruled as to what will qualify as a business entity in case of a partnership.

Sharing of profits

The word partnership per se means to part and which means division. The division of profits between two or more members is a prerequisite to constitute a valid partnership as a whole. It has been ruled that any man who has earned out of the activity of the partnership must share the same with the other partners. In 1860 when there were no acts pertaining to the governance of partnership provisions then sharing of profits was regarded as the most important test in determining the validity of a partnership which was also ruled in Cox vs Hickman(3).

Sharing of Losses

To establish a partnership it is not essential that the partners ought to consent to share the losses (Raghunandan vs Harmasjee). It is available to at least one partner to consent to hold up under every one of the losses of the business. The Act, accordingly, does not try to make consent to share losses, a test of the presence of partnership.

Section 13(6), nonetheless, gives that the partners are qualified for offer similarly in the benefits earned, and will contribute likewise to the misfortunes continued by the firm, except if generally concurred. In this manner sharing of mishaps might be viewed as noteworthy upon the sharing of profits and where nothing is said with regards to the sharing of losses, consent to share profits suggests a consent to share mishaps too. It must be noticed that even though an accomplice may not partake in the misfortunes of the business, yet his risk versus outcasts will be boundless because there can’t be ‘constrained partnerships’ in our nation under the Partnership Act.

Mutual Agency

The fifth component in the meaning of a partnership gives that the business must be carried on by every one of the partners or any (at least one) of them representing all, that is, there must be a mutual agency. In this manner each partner is both an agent and principal for himself and different partners, for example, he can tie by his demonstrations different partners and can be bound by the illustrations of various partners in the standard course of business.

To test whether an individual is a partner or not, it ought to be seen, in addition to other things, regardless of whether the component of agency exists, i.e. irrespective of whether the business is led for his benefit. It is based on this test a widow of a perished partner or a chief having an offer in the profits isn’t an accomplice since business is not carried for his or her sake. On the off chance that he/she accomplishes something, the firm isn’t legitimately bound by that.

The significance of the component of mutual agency lies in the way that it empowers each accomplice to carry on the business in the interest of others. Partners may concur among themselves that somebody of them will not go into any agreements for the benefit of the firm, however by prudence of the guideline of mutual agency, such accomplice can tie the firm opposite outsiders without notice in contracts made by the customary use of the exchange.

Obviously, he can be caused subject by other accomplice’s to entomb for surpassing his power. Actually, the law of partnership overseeing relations of the accomplice’s between and with the outside world is an augmentation of the law of partnership. Where at least two people are locked in as partners in a standard exchange, every one of them has a suggested expert from the others to tie all by contracts went into as per the ordinary course of business in that exchange. The authority regarding the principle has been mentioned separately in Cox vs Hickman(3).

Thus as per the provisions of Indian Partnership, a partnership cannot be created in a nightmare. There are some grounds on which it could be checked whether the partnership is justiciable or legally binding. A sort of business association where at least two people pool cash, abilities, and different assets, and offer benefit and misfortune as per terms of the partnership agreement.

Without such agreement, a partnership is accepted to leave, where the members in a venture consent to share the related dangers and rewards proportionately. There are three relatively common partnership types: general partnership (GP), limited partnership (LP) and limited liability partnership (LLP).

A fourth, the limited liability partnership (LLP), is not recognised in all states. The partnership could be divided into four forms.

Partnership at will- which means while framing a partnership if there is no statement about the lapse of such a partnership, we consider it a partnership freely. As indicated by Section 7 of the Indian Partnership Act 1932, there are two conditions to be satisfied for a partnership to be a partnership freely. The conditions are when there is no agreement about a fixed period for the presence of a partnership and No arrangement concerning the assurance of partnership.

Partnership for Fixed Term- which means, Presently amid the production of a partnership, the partners may concur on the term of this course of action. This would mean the partnership was made for a fixed term of time. Subsequently, such a partnership won’t be a partnership voluntarily; it will be a partnership for a fixed term. After the termination of such a span, the partnership will likewise end.

Particular Partnership- A partnership can be framed for carrying on consistent business, or it tends to be shaped for one specific endeavour or undertaking. On the off chance that the partnership is framed distinctly to do one business venture or to finish one endeavour, such a partnership is known as a specific partnership.

General Partnership- At the point when the reason for the development of the partnership is to do the business, in general, it is said to be a general partnership.

To check the validity of partnership, the above essentials and grounds must be compiled, in order to form a partnership and get it registered under the provisions of the Indian Partnership Act.

Reference

1. (1985 4 SCC 35)
2. (2000) 1 WLR 2123
3. (1860) 8 HLC 268:30 LJCP 125:3 LT 185(HL)

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