This article has been written by Subodh Asthana, a second-year student of Hidayatullah National Law University. The author has discussed the doctrine of promissory estoppel.       

Section 2(h) of the Indian Contract Act 1872 states that Contract is an agreement enforceable by law and such agreement means when one person has promised to fulfil one’s obligation to another and when another person backs out or fails to perform one’s obligation to which he has guaranteed then the doctrine of promissory estoppels comes into the picture. To comprehend and study the exact extent of the regulation of promissory estoppels, it is important to follow its inception.

Estoppel is the result of equity principles. It is the recent development in the principles of contracts act where one party has by his words, conduct made to other a promise or assurance which was intended to affect legal relations between the parties. Therefore a person who gives his words cannot be allowed to revert back from what he/she has intended to act.

Promissory Estoppel: Explained

Promissory estoppel is a moderately new advancement. To follow the development of teaching in England, we have to allude to a portion of the English choices. The early cases did not talk about this tenet as estoppel. They discussed it as ‘raising equity’. Lord Cairns expressed the regulation in its most punctual structure in the accompanying words in Hughes v. Metropolitan Railway Company.

“It is the main rule whereupon all courts of equity continue, that if parties who have gone into clear and unmistakable terms which includes certain lawful outcomes for a short time later by their own demonstration or with their own consent enter upon a course of exchange which has the impact of driving one of the parties to assume that the severe rights emerging under the agreement won’t be enforced, or will be kept in anticipation, or held in hold, the individual who generally may have enforced those rights won’t be permitted to uphold them where it would be inequitable having respect to the dealings which have along these lines occurred between the parties.”

The doctrine of Promissory Estoppel was also based on obiter dicta of Justice Denning in Central London Property Trust Ltd vs. High trees House Ltd wherein the court ruled that after promising to reduce the rent of flats and then again increasing it, would affect the intended legal obligations of the parties. It was also held in Combes vs Combes that where one party by his words or conduct made an offer to another party to which any promise and assurance was intended to affect relations between them and to be acted upon accordingly, then one party has taken him on his word and then acted upon it.

Under English Law, the principle and rule has been applied in the case of explicit and not an unequivocal promise where one party, without a new consideration, makes a deal to avoid implementing his rights, since it is inequitable for the promisor to backpedal on such guarantee since the promisee probably adjusted his position independence of the guarantee made, which need not really be inconvenient.

The promisor can resile from his guarantee on giving reasonable notice, which may not be formal, giving the promisee a reasonable chance of continuing his position. The promise would move toward becoming last and irreversible if the promisee can’t continue his position, Promissory estoppel serves to suspend and not entirely quench the current obligation, The rule applies not exclusively to the contractual relationship, yet additionally to statutory rights, or to a connection between neighbouring landowners.

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Promissory Estoppel in India

Sometime before the doctrine of promissory estoppel was defined, the Calcutta High Court perceived that the principle of estoppel was not kept distinctly to the law of evidence, however, that an individual might be estopped from doing acts or depending on specific contentions or contention. In a later case, the Bombay High Court empowered the municipality to oppose the case of the Secretary of State to be launched out starting from the earliest stage the municipality had levelled, and raised versatile claims, in the conviction that they had a flat outright which should not be turned out except if other reasonable ground was outfitted, a conviction which was preferable to a desire made by the administrative authority which the legislature realized that the municipality would act upon.

Much later, the Supreme Court connected the standard (with one judge really utilizing the term promissory estoppel) to block the administration from evaluating land income in connection to a market site, when it had prior settled not to charge any lease on business sectors for business sectors would resemble other open buildings.

The court in UOI vs Anglo Afghan Agencies ruled that the doctrine of promissory estoppel discovered its most articulate exposition. For this situation, the writ-applicant had depended on the fare advancement plot issued by the Central Government which had sent out woollen products, and after that guaranteed the import qualification authentication for the full an incentive under the plan. The solicitor put together its case with respect to dependence, and the administration argued official need.

The Supreme Court negatived the protection of official need, and brought up that it didn’t discharge the legislature from its commitment to respect the guarantee made by it, if the native  acting in dependence on the guarantee, had adjusted his position, and that as well, despite that the guarantee was not recorded in the structure required by article 299 of the Constitution.

Afterwards, in Century spinning and manufacturing Co Ltd vs Ulhasnagar Municipality, the doctrine was connected to implement a guarantee of exception from the instalment of octroi obligation given by a metropolitan organisation. The court drew the refinement between the portrayal of the current actuality and description that something would be done in future was spelt out, and it was thus carefully observed.

At last, in, the Supreme Court managed the doctrine of promissory estoppel at the incredible length and held that it afforded a reason for the activity. For this situation in Motilal Padampat Sugar Mills vs. State of UP, wherein the Government of Uttar Pradesh proclaimed a plan exempting all new modern units from deals charge for a long time in the paper. The appealing party sugar organisation got the portrayal affirmed from the Secretary, Industries Department, the Director of Industries, and the Chief Secretary, expressing that in perspective on the business charge exception declared by the administration, is expected to set up a hydrogenation plant for vanaspati.

It was held that the all-out portrayal contained in the letters for the benefit of the Government of Uttar Pradesh, based on which the appealing party acquired cash from money related organizations and set up a plant, conjured the doctrine of promissory estoppel and the administration will undoubtedly complete the portrayal and excluded the litigant from the instalment of offers charge in regard to produced merchandise for a time of three years. 

The Supreme Court has seen that the doctrine of promissory estoppel is a guideline developed by value to keep away from foul play, and however generally named promissory estoppel, it is neither in the domain of agreement nor in the realm of estoppel, yet it is a doctrine advanced by value so as to avert lousy form where guarantee is made by an individual realizing that it would be followed up on by the individual to whom it is made and in actuality it is so followed up on and it is inequitable to permit the gathering making the guarantee to return upon it.

Applicability of Promissory Estoppel in India

On account of Motilal Padampat Sugar Mills the Supreme Court, after a review of Indian, English and American cases, held that:

• The rule can outfit a reason for the activity.
• The pertinence of the doctrine isn’t limited to parties as of now authoritatively bound to each other or having a prior legitimate relationship.
• The doctrine did not depend on estoppel, nor can its task be shackled by consideration. It isn’t essential to demonstrate any consideration for the materialism of the doctrine of promissory estoppel.
• The rule would be connected where the actualities are with the end goal that foul play can stay away from just by the requirement of guarantee.
• It is unimportant if no hindrance is appeared to have been caused, it is sufficient if there is a difference in position.
• The state isn’t resistant from obligation for promissory estoppel and it can’t depend on the doctrine of official need not to shackle its future official activity. It might be connected against the state, even in its legislative or open or sovereign limit, if its application is essential to avert extortion or show unfairness. The official authority is no safeguard.
• The doctrine of promissory estoppel must respect value when required, yet it isn’t sufficient to state that open intrigue will endure. It will be for the court to choose if the administration indicates reasons.
• There is no promissory estoppel against the state in its authoritative limit.
• The certainty that the guarantee isn’t as a formal contract required by workmanship 299 of the Constitution won’t influence the materialism of the doctrine.

Promissory Estoppel in a contractual relationship

The rule of promissory estoppel applies, when it does, just without a finished up contract. It couldn’t be conjured where a particular term in the agreement engaged a bank to end the advance agreement or the organization dropped the permit to run pay phones on expiry of the term or where the court would not expand the mining permit past the concurred time of a half year or wherein regard of office understandings for working pay telephones, rate of commission was decreased and the measure of security store upgraded, and the understanding gave such powers to the phone division.

The rule has been connected to force of the civil law to execute a rent deed, where ensuing upon a correspondence from the load up about distribution, the solicitor had spent sums on getting water and power associations and set up development on the plot or to avoid the power load up from pulling back the refund guaranteed, despite the fact that the standard concurrence with the power shopper explicitly given that the buyers will pay such rates as might be updated by the Board every once in a while.

The rule has been additionally connected to keep town or lodging advancement experts from making changes to plans of portions or to the singular distribution of plots or houses or to force such specialists to allocate or hand over plots or houses or even to keep such specialists from making changes in assignments by amending their policies. It has likewise been connected to implement guarantees of monetary foundations to give fund or advances.

Applicability of doctrine on public and private entities

In the case, the court observed,Public bodies are as much bound as private individual to complete portrayals of certainties and guarantees made by them, depending on which different people have adjusted their situation to their preference, in this way declining to make a refinement between the private individual and a public body as respects the utilization of the doctrine of promissory estoppel. It was recommended that the commitment could emerge as legal action, and if the law requires the agreement to be in a specific structure, it could be authorised in equity.

The case after examining the doctrine of promissory estoppel by and large, chose to what degree the doctrine was pertinent against the administration. The judgment nonetheless, insinuates the utilisation of the doctrine to private gatherings observing.

It is valid that promissory estoppel can’t be summoned to urge the administration or even a private gathering to complete a demonstration denied by law or promissory estoppel can’t be conjured to constrain the legislature or even a private gathering to complete a demonstration restricted by law and keeping in mind that it alludes with endorsement to the perceptions in 41  public bodies or the State is as much bound as private people to complete commitments brought about by them.

In all the Indian cases alluded over, the portrayals comprising the guarantees were made by or for the benefit of the state or public bodies. The doctrine has from there on created in India for the most part in the field of authoritative law.

The primary issue for the situation concerned the applicability of the doctrine to the legislature in its different capacities, and the court continued to choose the equivalent after choosing the extent of the doctrine. There is no case explicitly applying the doctrine between private parties. Except for a lone perception that the rule has been held pertinent to managerial law and not between private parties, there is no perception blocking the utilisation of the rule between private gatherings (not government or public bodies). Nor has the Supreme Court constrained the utilisation of the doctrine while detailing it.

It is along these lines presented that the doctrine as propounded for the situation applies with equivalent power to guarantees and obligations made and created by people other than the legislature or public bodies.

Exceptions to the doctrine

Some immunities and limitations have been given wherein the doctrine of promissory estoppel would not apply. Some of the exceptions of the Doctrine of promissory estoppels are as follows.

• The doctrine must respect equity when required. The promise may not be upheld against the administration if it is biased to expect the legislature to remember. On the off chance that the administration fights that public intrigue would endure by requirement, the legislature should demonstrate the realities and conditions to the court, and it would be for the court to choose whether those would render it unjust to uphold risk against the government.
• Mere supplication of the progress of strategy isn’t sufficient, it would need to be legitimised. It is just if the court is fulfilled on appropriate and adequate material set by the administration that superseding and overpowering public intrigue necessitates that the legislature ought not to be held bound by the promise (the weight of indicating it lies on the legislature), the court would decline to authorise it.
• No portrayal or promise made by an officer can block the legislature from upholding a statutory restriction. The doctrine can’t be profited to allow or excuse a rupture of law. Nor can the legislature or public bodies be constrained to complete the portrayal if it is in opposition to the law, or past their position or power.21 Nor would it be able to be conjured against the activity of administrative authority. The governing body additionally can’t be blocked by this doctrine from practising its capacity.
• The promisor might be pardoned from playing out the promise in exceptional cases, where the resulting occasions make it outlandish or discriminatory for the promisor to play out his sole obligation.

Promise

The portrayal or assurance depended upon must be unambiguous and unequivocal, and not a matter of induction, or a negligible expectation or possibility. But simple demonstrations of extravagance, especially in business exchanges, don’t make rights. While an aim to influence lawful relationship must be set up, such an objective might be found impartially, i.e., it might be demonstrated that the promisor as far as he could tell proposed to influence lawful relationship or that he deliberately so acted that he can’t be heard to state that he didn’t plan this to be the outcome.

At the point when promissory estoppel is conjured, the promise or confirmation essential to help it is definitely not exactly a promising official on the gatherings in the contract. It would not be necessary to summon the doctrine of promissory estoppel at all if the promise held contractual power.

Be that as it may, be the promise supporting promissory estoppel is firmly comparable to in many regards to a promise having a contractual impact. One of its basic properties is a similar level of unequivocally, which with the giving of full thought would have dressed it with contractual effect. In the Court of Appeal, Lord Denning alluded to the exceptional outcomes of holding that an affirmation inadequate (because of inconclusiveness) to shift a contract was yet unmistakable to help promissory estoppel achieving a similar outcome.

Impediments

To pull in the applicability of the doctrine, it isn’t essential that the promisee, acting in dependence on the promise, ought to have endured any weakness. What is just vital is that the promisee ought to have modified his situation in reliance on the promise, only that he more likely than not been directed to act uniquely in contrast to what he would somehow or another have done.

The altering position should mean such modification in the situation of the promisee as it causes it to appear to the court that holding the promisor to his portrayal is essential to do equity between the parties. The change of position need not include any disadvantage to the promisee except if by drawback, treachery to the promisee, which would result if the promisor was to subside from his promise.

The Law Commission of India couldn’t help contradicting the view that disservice was not necessary, and prescribed that so much hindrance was significant as that harm or misfortune which the promisee was probably going to endure if the promisor was permitted to backpedal on the promise or portrayal.

Promise irrevocable

The promisor may deny his promise except if it is unjust for him to backpedal on it. It would be unfair if the promisee, having acted in dependence on the promise, can’t be re-established to the situation where he was before he made a move. If the promisee can be re-established to that position, the promisor may backpedal on his promise. It has been held that even where there is no abrogating public intrigue, the promisor may resile from the obligation by giving reasonable notice, giving the promisee reasonable open door for continuing his position, if it is feasible for the promisee to reestablish the present state of affairs risk. Be that as it may, if the promisee can’t continue his position, the promise ends up last and irrevocable.

Cures

The doctrine depends on dependence, and it produced for anticipating unfairness. Any cure should, in this way, be formed for the reasons for counteracting it.

The promise can be authorised by explicit authorisation, directives and obligations. A fundamental inquiry emerges about the premise of conceding pay rather than the abovementioned when the idea of the exchange requests or when the above cures are insufficient.

When cures in the contract are worried to put the plaintiff in as high a situation as he would have involved had the litigant played out his promise they are said to satisfy the desires caused and to ensure the desire intrigue of the plaintiff. Then again, the assurance of dependence intrigue is worried about putting the plaintiff in as high a situation as he was in before the promise was made, i.e., to put the plaintiff in the status quo. This can be outlined with the accompanying precedents, the principal where the doctrine is utilised as a reason for the activity, and the second where it is utilised as protection.

No Estoppel against Minors

Assume that a minor by distorting his age incites another to contract with him, will there be any estoppels against him, or, as it were, will he be blocked from unveiling his actual age in case coming about because of the contract?

Indeed, even this inquiry had at one time made a debate. Yet, it is currently settled by the dominance of power that there are no such estoppels against a minor.

The infant isn’t ceased from setting up the resistance of outset. The reason is exceptionally straightforward. There can be no estoppel against a resolution. The strategy of the law of contract is to shield people underneath age from contractual risk and usually, the doctrine of estoppels can’t be utilised to overcome that approach. In this manner, for a situation under the steady gaze of the Bombay High Court, Beaumont CJ audited the previous specialists and closed by saying:

“The Court is of the conclusion that where an infant speaks to falsely or generally that he is of age and in this manner incites another into a contract with him then in an activity established on the contract the infant isn’t halted from setting up outset.”

Conclusion

It tends to be said that if the Government of India or of any State in India makes a promise to any individual and the promise isn’t conflicting with the law and regulation that must be adhered to and isn’t against the public intrigue, at that point a short time later it can’t decline to maintain its promise. The Supreme Court of India has said that following up on the affirmation or portrayals are sufficient and ensuing burden, harm or bias caused isn’t to be demonstrated.

It is likewise insignificant whether such portrayal was completely or halfway in charge of such adjustment in the position. It can be also said that wherein the Government or any private entity has promised to fulfil any contractual obligations and then that entity backs out without committing the obligation to its entirety then it would lead to arbitrariness on one party’s right and therefore rights of one party would be lynched if every party is allowed to back from their obligations. Thus the same was also ruled in Pournami Oil Mills Case, wherein the court directed the government to fulfil the promise done by it.

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The article has been written by Subodh Asthana, a student of Hidayatullah National Law University. The author has discussed the Overview of the Criminal Law (Amendment) Act, 2018.

The criminal law amendment ordinance was promulgated on April 21, 2018 and passed in Lok Sabha and Rajya on July 30, 2018 and August 06, 2018 respectively. A few state assemblies, for example, Madhya Pradesh, Haryana, Rajasthan, and Arunachal Pradesh passed stringent enemy of rape laws for submitting rape of minor girls after the Kathua rape and the Unnao rape incidents. Following this, the President had proclaimed the Criminal Law Amendment Ordinance on 21 April 2018. The Criminal Law (Amendment) Bill was then introduced in the Parliament which supplanted the Ordinance. The Bill was passed by the Parliament on 6th August 2018. The President offered consent to the Bill and accordingly, the Criminal Law (Amendment) Act, 2018 came into power.

Highlights of the Bill

Rape of a woman and minor child is an offence under the Indian Penal Code (IPC), 1860, and the Protection of Children from Sexual Offenses (POCSO) Act, 2012. In 2016, 21% of the absolute 39,068 instances of rape were against minor young ladies underneath the age of 16 years. Over the most recent year, a few states have acquainted or passed Bills with permit capital punishment for rape of young ladies beneath the age of 12 years. On April 21, 2018, the legislature proclaimed the Criminal Law (Amendment) Ordinance, 2018. Some of the amendments and changes are done in the bill by the legislature are as follows.

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Amendment to Indian Penal Code, 1860

Before the amendment, Section 376 managed punishment for the rape of ladies in two conditions.

Section 376(1) managed punishment for rape of a lady in every one of the conditions except for those referenced. Section 376(2) administered punishment for the rape of a lady done by cops, local officials, individual from the military, and so forth. This punishment has not been changed and is a base ten years through imprisonment, which might be reached out to life imprisonment. The sentence in such cases was thorough imprisonment of a base seven years which might be stretched out to imprisonment forever. The punishment under this section has now been increased.

Upgraded punishment for rape

Section 376 of the IPC, 1860, which manages the offence of rape was before culpable with thorough imprisonment or in any event seven years up to life imprisonment, alongside fine. The Ordinance, 2018 has expanded it to thorough imprisonment of least ten years, stretching out up to life imprisonment, alongside fine. Another proviso (3) has been included endorsing the base discipline of twenty years to an individual submitting rape on a lady under 16 years old, reaching out up to life imprisonment, alongside fine.

New offences

The Ordinance acquaints three new offences relating to the rape of minors, and builds the penalty for one:

• Section 376 AB: Rape of a young lady beneath the age of 12 years pulls in thorough imprisonment of at least 20 years extendable to life imprisonment, alongside fine to meet medicinal costs and recovery cost of the person in question, or, with death.
• Section 376 DB: the Gang rape of a young lady beneath the age of 12 years has been made culpable with life imprisonment, alongside fine, to meet restorative costs and recovery cost of the person in question, or, with death. Rape of a young lady underneath the age of 16 years draws in thorough imprisonment or in any event 20 years extendable to life imprisonment, alongside fine to meet medicinal costs and restoration cost of the person in question, or, with death. Already, rape of a young lady beneath the age of 16 years was culpable with imprisonment of ten years extendable to life imprisonment, alongside fine.
• Section 376 DA: the gang rape of a young lady beneath the age of 16 years has been made culpable with life imprisonment, alongside fine, to meet medicinal costs and restoration cost of the individual who has been raped.

Amendments to the POCSO Act

The Ordinance corrects the IPC, 1860, POCSO Act, 2012 and different laws identified with the rape of ladies. The POCSO, Act states that the punishment which is higher between the POCSO Act and the IPC will apply to the rape of minors. The POCSO Act, 2012, makes the rape of minors culpable within any event seven years or life imprisonment, alongside a fine.

For rape of minors underneath the age of 12 years or for gang rape of minors, the punishment is the rigorous imprisonment or in any event, ten years or life imprisonment, alongside fine. The Ordinance amends the POCSO Act, 2012 to state that for every single such offence, the punishment which is higher between the POCSO Act, 2012 and IPC, 1860, will apply. Section 42 of the Act which manages elective punishment has been amended to incorporate Sections 376AB, 376DA, and 376DB.

Amendments to the Criminal Procedure Code

Time-bound examination: The Cr.P.C., 1973 under section 173 states that an examination concerning the rape of a child must be finished within a quarter of a year ( 3 months). The Ordinance corrects the section and decreases the ideal opportunity for the consummation of examination from a quarter of a year to two months extendable to all offences of rape (counting rape, gang rape, and rape of minors younger than 12 years and 16 years).

Appeal: according to the Ordinance, any appeal under section 374 or section 377 of the Cr.P.C., 1973 against a sentence identified with rape cases must be discarded inside a half year.

Anticipatory Bail: The Cr.P.C., 1973 records conditions for conceding anticipatory bail. The Ordinance makes the arrangement of anticipatory bail not appropriate to rape and gang rape of minor young ladies underneath 12 years and 16 years old.

Besides, the amendment has additionally rolled out two improvements in Section 439 of the Code.

A stipulation has been embedded which states that the High Court or the Session Court needs to pull out to the open examiner inside 15 days of which it gets the bail use of an accused of assaulting a young lady under 16 years old.

A sub-section has been embedded which makes the nearness of source or an individual approved by him required amid the becoming aware of bail use of the accused in such cases.

The state of Madhya Pradesh has appeared fruitful usage of the arrangements of the amendment. The state has finished the examination of rape cases inside the time allotment for example inside 60 days in 72% of the cases.

For another situation, the preliminary for the rape of a 4-year-old was finished in the multi-day following four days test.

These insights obviously demonstrate that the arrangement set down in the amendment is a feasible undertaking and can prompt improvement of the conveyance of equity everywhere throughout the nation.

Amendment to Indian Evidence Act

Section 53A and Section 146 have been revised to make the arrangement of the Act to be in consonance with the amendments in different Acts. Under the Evidence Act, in deciding if the act was consensual or not and the two-finger test that decides the past sexual experience or character of the unfortunate casualty is neglected. This arrangement has been stretched out to the rape and gang rape of minor young girl beneath 12 years old and underneath 16 years old.

Dissenting views on the amendment

The amendment has although made reasonable classification by increasing the punishment of the heinous crime, rape. There are various shortcomings in the present act which have been addressed by the various eminent personalities in the field of law. There is a dire need to address the shortcomings and restructure the law again. Some of the dissenting views about the Act are as follows:

The majority of the above amendments are imperative changes in the enactment for accomplishing the expected target, be that as it may, the equivalent is not free from flaws.

• Offender killing the victim: The Supreme Court of India has suggested conversation starters to the Government of India, including one extremely relevant inquiry, “Since the punishment for rape of a minor and that of homicide is death, what number of the culprits would leave their unfortunate casualties alive?” an inquiry that appears to be outlandish at the beginning to be replied.

Along these lines, presently the odds are high that the guilty party will ensure that the victim does not endure. This point was additionally raised by the Delhi High Court when a Bench containing Acting Chief Justice Gita Mittal and Justice C. Hari Shankar commented “Have you thought of the consequence to the victim? What number of offenders would enable their victims to endure since rape and murder has the equivalent punishment?

Thus, this may result to be of deadly consequence for the victims.

• Not Gender Neutral: The Ordinance needs in its degree in as much as it just identifies with punishment for rape of minor girls, and does not cover minor boys so far as that is concerned. There are sufficient records and proof of sexual maltreatment exacted on minor boys, and the equivalent ought to have been fused by the Ordinance.              

The last government investigation about in India to address the issue was completed in 2007 when 53.2% of children detailed having encountered some type of sexual abuse. Of those, 52.9% were a male child. “Child sexual abuse is unbiased,” “Young men who are sexually abused as children spend a lifetime peacefully as a result of the disgrace and disgrace joined to male survivors standing up. It is a difficult issue and should be tended to.

• Ambiguity: The constitutional legitimacy of the base imprisonment of 20 years enshrined under section 376 (3) is flawed when made a decision on the ground of proportionality. When sexual experimentation among young people isn’t an exceptional wonder, the seriousness of the base 20 years’ imprisonment, rises above the breaking points sensibility and reasonableness. How about we accept a young lady who is under 16 years old goes into a consensual physical association with a man (18 years’ age).

This being an instance of statutory assault, when the way that the prosecutrix is beneath the period of consent (18 years in India), is demonstrated, the subject of consent ends up superfluous and sex with her adds up to assault regardless of her consent. But a sentence of ’20 years’ imprisonment to the kid, without legal caution, has all the earmarks of being outlandish and excessively harsh.

The judge will be obligatorily required to sentence the man 20 years’ imprisonment who will, in the long run, get discharged at 38 years old years or may never get discharged in case of life imprisonment. The law will likewise make counterproductive outcomes at the point when the guilty party is a minor.

• Bogus Cases: The amendment in Cr.P.C gives that no anticipatory bail will be allowed in instances of rape on a lady under sixteen years old. In this manner, presently the charged has no arrangement to get an anticipatory bail regardless of whether there are odds of being reserved under a bogus case. There might be a possibility that these bogus and fraudulent cases may increase at a substantial rate.
• How to check the faster Investigation by authorities: For any effective conviction, the examination is a significant segment in the criminal justice system. Be that as it may, aside from the pre-famous position of examination in a criminal preliminary, the quick review is likewise a critical piece of the criminal justice system. The unresponsiveness of law enforcement agencies towards examining rape cases frequently prompts delays in documenting a charge sheet, which is regularly an impression of broken examination. Deferral in the examination may lead to altering of evidence, witness terrorising and in this manner acquittals in preliminary owing to need of proof.

Conclusion

The criminal law is a standout amongst the most fundamental connections which characterizes the connection between a state and its natives. Along these lines, it is attractive if this relationship is characterised correctly and unmistakably in the reformatory rules. The criminal law, which is viewed as the most potent State instrument confining a person’s crucial ideal to life and individual freedom must be free from irregularities and ambiguities. Notwithstanding, recently dubiousness and equivocalness give off an impression of being the direct principle of the present day authoritative intercessions. The three previously mentioned characteristics of a decent code which Macaulay have been given a pass by with regards to administrative drafting. The questionable diction utilised in criminal laws mirrors their need for exactness.

Apparent irregularities in criminal laws of India make it hard for common natives and even legitimate specialists to comprehend the extent of a specific arrangement. From one perspective, IPC and its amendments keep on being liable to steady judicial elucidation verging law-production because of moderate advancement in law changes. While, then again, the legislature and the executive keep on dozing on significant law change suggestions made by master bodies and councils.

Accordingly, the IPC and its ongoing enemy of rape amendments proceed to afflict from ambiguities, irregularities, and authoritative indifference towards its transformation. Hurried enactment, drafted with a goal to quiet open motivation, may forecast well for optics and political talk. In any case, in knowing the past, it bargains the nature of law changes and stops up the judicial system with petitions appealing to God for a legitimate assertion on the law.

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The article has been written by Varnik Yadav, a student of Gujarat National Law University, Gandhinagar. The author has discussed the intricacies of the hire purchase transactions.

Introduction

The important role that contract law plays in our lives has given rise to a number of need-based contracts, such as that of bailment. A modern species of the contract of bailment is the hire-purchase agreement. It is a contract of hire with the option to purchase available at the inception.

Chitty defines characterizes a hire-purchase agreement as an agreement under which an owner lets chattels of any depiction out on hire and further concurs that the hirer may either restore the products and end the procuring or choose to purchase the merchandise when the instalments for hire have achieved an entirety equivalent to the measure of the purchase cost expressed in the agreement endless supply of an expressed total of the agreement. The hire-purchase agreement is therefore related to, but distinct from, a contract of bailment. It contains not only the element of bailment but also the element of the sale.

Hire-purchase agreements originated in England and were thereafter brought to India by the British. Such transactions were initially governed by English law and the major judicial precedents. A specialized act to govern the same, viz. the Hire Purchase Act was passed in 1972 but was never enforced, and was finally repealed in 2005. This gives rise to a most interesting March of Law that begs examination.

This term paper is aimed at a thorough examination of hire purchase agreements with specific reference to the Indian context. Therefore, it would begin with an examination of the history and nature of such transactions, followed by a comparative analysis between the relevant position at Common law and in Indian law. Relevant case laws have been relied upon wherever possible.

Historical Perspective: Development of Hire Purchase Transactions

Hire-purchase transactions originated in England during the mid-19^th century when, against the backdrop of the Industrial Revolution, sewing machines were sold under a formal agreement to hire with an option to purchase. Subsequently, other consumer durable goods began to come under the purview of such agreements.

The advent of automobiles provided a great fillip to the proliferation of hire-purchase transactions.  Initially, there were only two parties to such agreements, viz. the owner and the hirer. After World War I, the transactions assumed a triangular form with the establishment of large scale financing companies. The new form that became popular was one in which the owner, instead of dealing directly with the hirer, sold his goods to the financing companies, which then let them out to the hirers/intended purchasers under hire-purchase transactions.  

In India, hire-purchase transactions were introduced at the beginning of the twentieth century. The pioneering hire-purchase company was the Madras-based Auto Supply Company Ltd. (1920), later known as Commercial Credit Corporation. Other prominent companies included the Motor and General Finance Company and the Instalment Supply Company (c. 1925), based in the north.

In the post-war years, hire-purchase agreements gained popularity, proving particularly useful in the road transport industry and the automobile industry, viz. financing on commercial vehicles. Various government-constituted committees such as the Masani and James Raj Committees have recognised role of hire-purchase agreements in the development of the road transport industry.

With the proliferation of hire-purchase transaction, there has also been a fair amount of litigation with respect to the same. The Courts have been active in expounding the various aspects and characteristics of hire-purchase agreements.

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Nature of Hire Purchase Agreements

Overview

According to Chitty, a hire-purchase agreement might be characterized as an agreement under which an owner lets chattels of any depiction out on hire and further concurs that the hirer may either restore the products and end the contracting or choose to purchase the merchandise when the instalments for hire have achieved an aggregate equivalent to the measure of the purchase cost expressed in the agreement endless supply of an expressed total. It is one of the varieties of the agreement of bailment, yet it is an advanced improvement and the guidelines concerning bailment can’t be connected without modification in light of the fact that such an agreement has the component of bailment as well as of the sale.

Such transaction is, therefore, a contract of hire with an option to purchase, and until the option is exercised, property in the goods does not pass to the hirer/vendee. This definition has been comprehensively codified by Section 2 (c) of the Hire Purchase Act, 1972. The purpose of hire-purchase transactions is to assist those borrowers who have problems in furnishing security for lending institutions in purchasing goods: here goods themselves are security because property or title in the goods is retained by the lender until all payments are made. The law of hire-purchase is comparatively modern in origin and is designed to serve the needs of credit buying while at the same time protecting the vendor from being caught in the meshes of the law relating to sales strict sensu.

Hire Purchase: A distinct transaction

In addition to laying down general principles governing hire-purchase transactions, the judiciary has also helped to clarify the distinct nature of such transactions with respect to others, in particular those of sale. The relevant distinctions have been discussed below.

Hire-purchase itself contains an element of the sale. The distinguishing feature of a typical hire-purchase agreement, therefore, is that property in the goods does not pass when the agreement is made but only passes when the option to purchase is finally exercised in compliance with all the terms of the agreement.

The essence of a transaction of the sale is that property in the goods is transferred immediately from seller to purchaser. This is the crux of the definition of ‘sale’ as per Section 4 of the Sale of Goods Act, 1930, which requires that the seller transfers the property in the goods to the buyer for a price. It has been held that it is immaterial whether this price is paid in full or in instalments: if the transfer of possession is accompanied by the transfer of property in the chattels then the transaction is one of sale, whether immediately or in instalments. 

A hire-purchase agreement, however, is distinct from a sale and sale by instalments by virtue of the question of passage of property in the chattels. It is an agreement of hire with an option to purchase. There is no immediate passage of property in the chattels as in the transaction of sale. The property does not pass at the time of the agreement but remains in the intending seller and only passes when the option to purchase is exercised after complying with all the terms of the agreement.

Hire-purchase can be further distinguished as against sale by instalments. In Sundaram Finance v. State of Kerala, it was held that a hire-purchase transaction is more complex than that of sale. In the former, the hirer is under no legal obligation to buy the goods; he has an option either to return the goods, thus terminating payment of instalments and forfeiting the amount already paid; or to become their owner by payment in full of the stipulated hire and the price for exercising the option to purchase.

However, in the sale by instalments, the purchaser cannot return the goods once the sale is affected because property in the goods has already been transferred to him. He may not terminate payment of instalments and is legally obligated to complete the purchase by payment of the requisite instalments. In doing so, he would be in breach of contract and would be liable to payment of damages, vide Lee v. Butler and Helby v. Matthews.

In Damodar Valley Corporation v. State of Bihar, the Supreme Court laid down certain tests to determine whether an agreement to be one of hire-purchase as opposed to sale:-

1. Whether there is a binding obligation upon the hirer to purchase the goods.
2. Whether there is a right reserved to the hirer to return the goods at any time during the subsistence of the contract.

It was held that if there was no binding obligation and such right was reserved, then there was no contract of sale but rather, a hire-purchase agreement. In the same case, it was stated that such an agreement confers no title upon the hirer, but a mere option to purchase based on the fulfilment of certain conditions. 

The term ‘hire-purchase’ itself has two meanings. The term is often used to describe contracts that in reality represent agreements to purchase by instalments, subject to the condition that property passes only when all instalments have been paid (hence distinct from sale by instalments). These transactions can perhaps more accurately be described as contracts of conditional sale or credit sale.

In such transactions, there is again a binding legal obligation to purchase the goods and therefore the hirer can pass good title to any purchaser or pledgee dealing with him in good faith, without notice to the original owner. Moreover, termination of a credit sale by the intended purchaser would find him in breach of contract and make him liable for damages. However, in pure hire-purchase transactions, such a legal obligation is absent and so is a transfer of property in the goods. Hence a further purchaser or pledgee can obtain no better title than the hirer had. Credit sale agreements, being distinct themselves, are governed by the Sale of Goods Act, 1930.

Pure hire-purchase agreements must also be distinguished from transactions in which the customer is the owner of the goods and with a view to financing his purchase he enters into an arrangement which is in the form of a hire-purchase agreement with the financier, but in substance evidences a loan transaction, subject to a hiring agreement under which the lender is given the license to seize the goods.

Thus we see that a hire-purchase transaction is distinct and unique.

Modern Trends

Initially, hire-purchase represented a two-party transaction between the owner and the hirer or intended purchaser. However, in modern times, there are variations when a financier is interposed between the owner of the goods and the customer. Many retailers have no wish to act as financiers themselves supplying credit to customers. Consequently, a hire-purchase transaction often involves first, a sale under which the retailer sells the goods to a finance company, and then secondly, a hire-purchase contract under which the finance company lets the goods on hire-purchase terms to the hirer (intended purchaser).

In modern times, therefore, the owner has no real contractual relations with the seller. Similarly, if the owner is unwilling to look to the purchaser of goods to recover the balance of the price, a financier may pay the balance and undertake recovery. In this form, goods are purchased by the financier from the dealer, who then obtains a hire-purchase agreement from the customer under which the latter becomes the owner of the goods on payment of all the instalments of the stipulated hire and exercising his option to purchase the goods on payment of a nominal price.

Hire Purchase and Sales Tax Liability

One of the major questions related to hire-purchase transactions is related to sales tax liability. The basic question is, whether hire-purchase can be classified as sales and thereby attracts sales tax. It appears that initially, the Supreme Court observed that the hire-purchase agreement does not only contain the element of bailment but also the element of sale and hence should also be included as a sale transaction. This was the ruling of the Madras High Court in Commercial Credit Corporation v. Deputy Income Tax Officer. 

However, in the landmark judgment of K.L. Johar& Co. v. Deputy Commercial Tax Officer, it was held that a hire-purchase transaction would be liable to sales tax only when it fructifies into a sale at the option of the hirer. Where, however, the option is not exercised or cannot be exercised because of the inability of the purchaser to fulfil all the terms of the agreement, there is no sale and thus the transaction is not liable to sales tax, as the taxable event, which is the taking place of the sale, is not taking place.

Following this judgment (1965), the Law Commission in its 61^st Report (1974) on “Certain problems connected with power of the States to levy a tax on the sale of goods and with the Central Sales Tax Act, 1956”, recommended that hire-purchase transactions should not be liable to sales tax unless the impugned sale actually takes place.

Consequently, the 46^th Amendment was passed in 1982, thus inserting Clause 29A into Article 366 of the Constitution. With respect to hire-purchase agreements, the Amendment Act stated that since there is sale only when the hirer exercises his option to purchase, only the depreciated value of the goods involved in such transaction at the time the option is exercised becomes assessable to sales tax.

Hence, the present position of tax liability under hire-purchase transactions has been discussed.

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

The purpose of this article is to insult you. So even if you feel insulted, just read on. Insult could be exactly what you need to get out of inaction or a rut sometimes.

Look at the video below. This is the video of a guy, made by a channel called FoodDaddy, who sells rolls and chicken seekh next to Saket metro in Delhi. This is right next to our LawSikho and iPleaders office in Saket.

https://www.youtube.com/watch?v=ESTlItQs5Jo

Guess how much he earns?

I stood there and saw around 8 rolls selling in 10 minutes. He rapidly keeps making and selling these rolls. He stands at that spot for about 7 hour a day. A roll costs 60 rupees. His margin would be about half of that. Still, let’s assume he makes a profit of 20 rupees per roll. And that he sells about 30 rolls in an hour. That’s a revenue of 1800 rupees per hour and a profit of 600. In 7 hours, if he keeps selling at that speed, he makes a profit of 4200 per day. And revenue of Rs 12,600. At least. He also sells a lot of chicken seekhs.

He doesn’t pay any income taxes also. Obviously. And my estimates are only on the lowest side, I am purposefully being super conservative about the maths.

I am not going into much details, but even if my calculation is very wrong, he makes a revenue of at least 3,00,000 per month, of which about a lakh will be profit if not more. He probably gives a few thousand to municipality and police guys as weekly payment to keep them at bay.

I asked him how much he earns, he broke into a smile and told me aap ke dua se sab achha chal raha hay. Wouldn’t divulge more.

The food seller on the street makes at least 1 lakh per month. Do you?

Btw, it is not an easy job. It’s hard work. He had to find a good spot, good location. He works very hard. He does not take days off. He makes parathas all morning and then comes and stands in the sun. He has to deal with police and municipality people who extort money from him.

I once read about an engineer turned roll seller, who wrote about his business on quora, and he mentioned how he earns ten times more by selling rolls rather than what he earned in an engineering job. I could not find that one, but here is another fascinating thread. Here, a roll seller claims that he earns 3-4 lakhs per month and gives the math break up of that too.

Ok forget rolls. It could be some one off thing right?

Did you know that barbers earn more than the most people whose hair they cut?

My school friends in their whatsapp group were recently complaining about how the chaiwala in the office earns more than them, because the guy built a three storied house and was showing off pictures of it!

So I did some research.

How much do you think your road side chaiwala earns? This tea stall in worli has a turnover of over 2 lakhs per month. Barely any investment goes into it. And his margin is more than 50%. A chaiwala also easily earns more than a lakh per month.

What about you?

How about the samosawala? Apparently, in big cities, they easily earn 1 lakh per month.

My masseur charges 700 per visit, for one hour of massage. Most of his day is free. If he does 5 massages in a day, he makes 3500. He says he earns between 70,000 – 1,00,000 per month.

How much do lawyers make?

Surely, lawyers have the potential to earn a lot. Good lawyers at district courts also easily earn 7-10 lakhs per month. It is in High Court and Supreme Court that junior lawyers without much brand value earn quite less and toil in the hopes of making it big one day.

Look, it’s not just about the money. You have got a great degree, the LLB. Maybe you got a foreign LLM also. But where is the return on investment?

Have you considered, maybe the job you are doing is not that great? Maybe you are not aiming high enough? Maybe you are being satisfied with too less?

If you let yourself truly dream, what could be your ambition?

The point of reminding you of how much hard working people with little education and investment are making in our metros is to tell you that you need to up your ambition. You need to up your game. You need to set your targets higher. Otherwise, what is the use of your law degree, all the learnings and hard work?

Money is not just about greed. It is an important scoreboard. You can see how much value you are generating for the world and how much of that you are managing to capture for yourself. It is a great indicator of your capabilities unless you are doing a non-profit or nature conservation or some other work like that, in which case the measurement should be the impact you are making.

My point is that if you are just working enough to survive, I want you to feel insulted that you are not doing enough. I want you to reflect. Can you look any higher? Is this the best you can imagine for yourself? Will your life get over with so less?

At the least, you should not set your targets too low. You should not be satisfied with a meagre salary. I hope you take away some benchmark from here. If a tea seller earns a lakh, how much should be your target? How much do you think you deserve?

If roll or tea doesn’t taste good, it won’t sell well. If they do not position themselves in the right place, they won’t make enough to eat two square meals. They need to consistently provide high quality over a period of time to build up a clientele.

Even the Worli tea seller adds lemongrass to his tea. Who knew! To create a distinct taste, obviously.

What is your USP? What’s your secret ingredient?

What are you gonna do? How much effort are you putting into developing your capacity to deliver high-quality legal services? How much time are you spending in getting your positioning right? Are you building a brand? Do you have the capacity to deliver high quality legal services consistently and reliably to the majority of your clients?

Think about each of these questions. Don’t skip them, read them again and again and wonder.

Your success depends on that. And surely you can earn a lot more than a chaiwala if you get all these things right.

Please don’t think small. Please don’t be lazy. Please do not prevent yourself from investing in your future.

Your future is in your hands. Jump in and make a difference to your own life.

All the best! Don’t let chaiwalas and masseurs beat you financially! You certainly deserve better. Get better at your work and earn lots and lots of money

We can help you to develop yourself into a powerful, extraordinary lawyer. Here is our list of upcoming courses. Don’t miss the opportunity to enroll in them if these are in your areas of interest

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 Does a Roadside Chaiwala Earn More than You? appeared first on iPleaders.

This article is written by Anushka Ojha, a third-year student of ICFAI University, Dehradun. In this article she discusses the Trademark law in India, types of trademarks, the designation of trademarks, uses, ownership of trademark, process and effects of registration of a trademark, passing off and its scope.

What is a Trademark?

Trademark is a branch of intellectual property rights. Intellectual property rights permit people to maintain ownership rights of their innovative product and creative activity. The intellectual property came to light because of the efforts of human labour, so it is limited by a number of charges for the registration and charges for infringement. Types of intellectual property are Trademarks, Copyright Act, Patent Act, and  Designs  Act.

A trademark includes a name, word, or sign that differentiates goods from the goods of other enterprises. Marketing of goods or services by the procedure becomes much easier with a trademark because recognition of product with the trademark is assured and easier. The owner can prevent the use of his mark or sign by another competitor.

Trademark is a marketing tool which increases financing of the business. A trademark is not always a brand but the brand is always is a trademark. Sometimes there is a confusion between trademark and brand. The brand name can be simply a symbol or logo but the trademark is a distinguishing sign or indicator in a business organization as it has a wider implication than brands. People are more influenced by the distinctive trademark that reflects the quality of the product. A trademark can be a logo, picture mark or a slogan.

Trademark law in India

Before 1940 there was no law on trademarks in India. A number of problems of infringement of registered and unregistered trademark arose which were resolved under Section 54 of the Specific Relief Act, 1877 and registration was adjudicated under the Indian Registration Act,1908. To overcome these difficulties, the Indian Trademark law was enforced in 1940. After the enforcement of the trademark law, demand for protection of trademarks increased as there was major growth in trade and commerce.

The Trademark law was replaced with the Trademark and Merchandise Act, 1958. It provides better protection of trademark and prevents misuse or fraudulent use of marks on merchandise. The Act provides registration of the trademark so that the owner of the trademark may get a legal right for its exclusive use.

This previous Act got replaced with the Trademark Act, 1999 by the government of India by complying it with TRIPS (Trade-related aspects of intellectual property rights) obligation recommended by the World Trade Organization. The aim of the Trademark Act is to grant protection to the users of trademark and direct the conditions on the property and also provide legal remedies for the implementation of trademark rights.

The Trademark Act, 1999 gives the right to the police to arrest in cases of infringement of the trademark. The Act gives a complete definition for the term infringement which is frequently used. In Trademark Act, it provides punishments and penalties for the offenders. It also increases the time duration of registration and also registration of a non-traditional trademark.

Types of Trademark

Service mark

A service mark is any symbol name, sign, device or word which is intentionally used in trade to recognize and differentiate the services of one provider from others. Service marks do not cover material goods but only the allocation of services. Service marks are used in day to day services :

• Sponsorship
• Hotel services
• Entertainment services
• Speed reading instruction
• Management and investment
• Housing development services

A service mark is expected to play a critical role in promoting and selling a product or services. A product is indicated by its service mark, and that product’s service mark is also known as a trademark.

Collective mark

A collective mark is used by employees and a collective group, or by members of a collaborative association, or the other group or organization to identify the source of goods or services. A collective mark indicates a mark which is used for goods and services and for the group of organizations with similar characteristics. The organization or group uses this mark for more than one person who is acting in a group organization or legal entity for dividing the different goods or services. Two types of collective marks for distinguishing with other goods or services of similar nature:

• Collective mark indicates that the marketer, trader or person is a part of the specified group or organization. Example – CA is a collective trademark which is used by the Institute of the chartered accountant.
• Collective trademark and collective service mark are used to indicate the origin or source of the product.

A collective trademark is used by the single members of a group of an organization but is registered as a whole group. Example- CA is the title or mark which given to the member of Institute of a chartered accountant. That collective mark may be used by the group of association. This was added to the Trademark Act, 1988.

Certification mark

A certificate mark is verification or confirmation of matter by providing assurance that some act has been done or some judicial formality has been complied with. A certification mark indicates certain qualities of goods or services with which the mark are used is certified, a certification mark is defined in the Trademark Act, 1999.

Certification trade mark means a mark competent of identifying the goods or services in connection with which it is used in the manner of trade, which is certified by the owner of the mark in respect of source, body, mode of manufacturer of goods or performances of assistance, quality, accuracy or other characteristics.

Those goods or services which not so certified and registrable as such under this Act, in respect of those goods or services in the name as the proprietor of the certification trade mark, of that person. Registration of certification mark is done according to the Trademark Act, 1999. Requirements for registration is the product must be competent to certify.

Trade dress

Trade dress is a term that refers to features of the visual appearance of a product or design of a building or its packaging that denote the source of the product to customers. It is a form of intellectual property. Trade dress protection is implemented to protect consumers from packaging or appearance of products that framed to imitate other products.

Essential of trade dress

• Anything that makes an overall look or overall dress and feel of brand in the market.
• The consumer believes that trade dress is the main indicator of differentiation of one brand or goods from others.
• The requirement for the registration of trade dress is the same as the registration of the logo, mark. The features in trade dress are size, colour, texture, graphics, design, shape, packaging, and many more.

 Designation of trademark

Trademark is designated by:

• ( is used for an unregistered trademark.it is used to promote or brand goods).
• ℠  ( used for an unregistered service mark.it is used to promote or brand services).
• R   (letter R is surrounded by a circle and used for registered trademark).

Uses of Trademark

Trademark identifies the owner of the product. Under any authorized agreement of product, a trademark can be used, an example of trademarks goods names are, iPod and a big mac. Company logos like the Golden Arches at McDonald’s and McDonald’s “I’m lovin’ it. Brand names like Apple, McDonald’s, and Dolce & Gabbana.

The usage of the trademark by unauthorized means or illegal means by producing it in trading is known as trademark piracy. If there is an infringement of trademark, the owner of the registered trademark can take legal action and for an unregistered trademark, the only option is passing off.  Many countries like the United States, Canada and many more also, accept the trademark policies, so they also gave the right to the master of product to take the action for the protection of their trademark A common concept of a trademark is that the owner of a registered trademark has a more legal right for protection than the owner of unregistered trademark.

The concept of usage of the non-physical trademark the Supreme Court held in the case of Hardie trading Ltd. v. Addison paint and chemicals Ltd. The Supreme Court gave a wider interpretation on the usage of a trademark that it could be non-physical and that there were no grounds to restrict the user to use on the commodities or to the sale of the commodities bearing the trademark.

Owner of the Trademark

Trademark gives protection to the owner by assuring them with the exclusive rights to use a trademark, to identify the goods or services or permit others to use it in results of payment. It is a weapon for the registered proprietor to stop the others from illegal use of the trademark. Under Section 28 the rights conferred by registration.

• The registration of a trademark is valid if the right is given to the certified owner of the trademark, the owner  has the exclusive right to use of the trademark in respect of goods or services in which the trademark is registered and to claim maintenance in respect of infringement of the trademark is given to the holder of the trademark.
• Wherever more than two persons are certified proprietors of the trademark which are same with or nearly identical with each other. The exclusive right to use of each of those trademarks shall not except if their own rights are related to any conditions or limitations entered on the register be expected to be taken by one of those persons as against of other persons only by registration of the trademark, but each of those persons has the same rights as against other persons.

Registration of Trademark

Any person claiming to be the owner of the trademark or supposed to used the trademark by him in future for this he may apply in writing to the appropriate registrar in a prescribed manner. The application must contain the name of the goods, mark and services, class of goods and the services in which it falls, name and address of the applicant and duration of use of the mark. Here the person means an association of firms, partnership firm, a company, trust, state government or the central government.

Conditions of registration

The central government by mentioning in the official gazette appoint a person to be known as the controller, general of patents, designs and trademark who shall be the registrar of the trademark. The central government may appoint other officers also if they think that they are appropriate, for the purpose of discharging, under the superintendence and direction of the registrar, the registrar may authorize them to discharge.

The registrar has the power to transfer or withdraw the cases by in writing with reasons mentioned. Under Section 6 of the Act, discussed the maintenance of a registered trademark. At head office wherein particulars of registered trademarks and other prescribed, particulars, except notice of the trust, shall be recorded. The copy of the register is to be kept at each branch office. It gives for the preservation of records in computer or diskettes or in any other electronic form.

Absolute grounds for refusal of registration

Absolute grounds for the refusal of registration is defined in Section 9 of the Act. The trademarks which can be lacking any distinctive characteristics or which consists exclusively of marks or signals, which can be used in trade to indicate the kind, fine, quantity, supposed grounds, values, geographical origin.

And also a time of production of goods or rendering of the offerings or different characteristics of the goods or offerings which consists solely of marks or indications which have come to be average in the present language. That marks are not entitled to registration. Except it is confirmed that the mark has in fact acquired a new character as a result of use before the date of application.

It  gives that a mark shall not be registered as trademarks if:

1. It frauds the public or causes confusion.
2. There is any matter to hurt religious susceptibility.
3. There is an obscene or scandalous matter.
4.  Its use is prohibited. It provides that if a mark contains exclusively of (a) the shape of goods which form the nature of goods or, (b) the shape of good which is needed to obtain a technical result or, (c) the shape of goods which gives substantial value of goods then it shall not be registered as trademark.

Test of similarity

For the conclusion, if one mark is deceptively similar to another the essential features of the two are to be considered. They should not be placed side by side to find out if there are any differences in the design and if they are of such a character to prevent one design from being mistaken for the other. It would be enough if the disputed mark has such an overall similarity to the registered mark as it likely to deceive a person usually dealing with one to accept the other if offered to him. Apart from the structural, visual, and phonetic similarity or dissimilarity, the query needs to be viewed from the factor of view of man typical intelligence and imperfect collection secondly. It’s regarded as an entire thirdly it is the query of his impressions.

In Mohd. Iqbal v. Mohd. Wasim  it was held that “it is common knowledge that ‘bidis’ are being used by persons belonging to the poorer and illiterate or semi-literate class. Their level of knowledge is not high. It cannot be expected of them that they would comprehend and understand the fine differences between the two labels, which may be detected on comparing the two labels are common. In view of the above, there appears to be a deceptive similarity between the two labels”.

Relative grounds for refusal of registration

Under Section 11 of the Act, it gives relative grounds for the refusal of registration of a trademark. A trademark cannot be registered if because of (i) its identity with an earlier trademark and similarity of goods or services, (ii) its similarity to an earlier trade mark and the similarity of the goods and there is a probability of confusion.

It also gives that a trademark cannot be registered which is identical or similar to an earlier trademark. And also which is to be registered for goods and services which are not similar to those for which earlier trademark is registered in the name of a different proprietor if, or to the extent, the earlier trademark is well known in India. It further gives that a trademark is cannot be registered if, or to the extent that, its use in India is liable to be prevented by virtue of any law.

Procedure and Duration of registration

The registrar on the application made by the proprietor of the trademark in the prescribed manner within the given period of time with the adequate payment of fees. Registration of a trademark shall be of ten years and renewal of the registered trademark is also for a period of ten years from the date of expiration of the original registration or of the last renewal of registration.

The registrar shall send the notice before the expiration of last registration in the prescribed manner to the registered proprietor. The notice mentions the date of expiration and payment of fees and upon which a renewal of registration may be obtained if at the expiration of the time given in that behalf those conditions have not duly complied with the registrar may remove the trademark from the register.

But the registrar shall not remove the trademark from the register if implication made within the prescribed form and the prescribed rate is paid within six months from the expiration of the final registration of the trademark and shall renew the registration of the trademark for an interval of ten years. If the trademark is removed from the register for non-payment of the prescribed fee, the registrar shall after six months and within one year from the expiration of the last registration of the trademark renew the registration,

And also on receipt of implication in the prescribed form and on payment of the prescribed fee the registrar restores the trademark to the register and renew the registration of the trademark, for a period of ten years from the expiration of the last registration.

International registration of a trademark

The law of trademark passed by the Indian government is applicable only within the territory of India. The trademark which is registered in has effect only in India, for the protection of trademark in other countries needs to be registered in another country as well. Each country has its own trademark law with rules and law for the registration of a trademark in that country. In other words, if an individual desire to obtain trademark registration in any particular nation then a separate application must be moved in all such international locations. Within the year 2013, the Indian government agreed to the Madrid conference which prescribes a methodology of submitting a worldwide application to the contracting events from India by means of the workplace of the Registrar of Trademark. For example- India’s mobile phone manufacturing Micromax received 1.25 millionth international trademark registration for its trademark ‘MICROMAX’ protection in over 110 countries. The international trademark registration for Micromax filed under the Madrid Protocol, under mark can be protected in many jurisdictions by only filing an application for international registration. There are two methods by which an international application can be filed:

• International application in each foreign country: For the protection of trademark in any foreign country, an international application must be filed to the trademark office by following the rules and regulations of that country. For this purpose the applicant must hire a firm dealing in trademark registration in foreign, the applications to countries which is not a party to the Madrid system can be filed as per above. It provides services that engaging an Attorney in the foreign countries works closely for registration of a trademark in the foreign country.
• The international application under the Madrid system: The trademark registration may also be initiated by means of filing an international application under Madrid protocol before the Registrar of Trademark for different nations. The Indian Trademark office collects international Trademark application and after finding it in conformity with the Madrid protocol transmits such a global application to the WIPO (World Intellectual Property Organization), which further transmits it to the situation overseas. Each and every global software is processed by way of the overseas nation as per their legislation and all communications are routed by means of Indian executive.

Effect of Registration

The registration of a trademark shall if valid give the exclusive right to the registered proprietor to the use of trademarks in respect of goods and services of which the trademark is registered, and also to obtain relief in respect of the infringement of the trademark.

Infringement of trademark

A registered trademark is infringed by a person who not being a registered proprietor or a person using by way of permitted use in the course of trade, a mark which is identical with or deceptively similar to the trademark in relation to goods or services in respect of which the trademark is registered. After infringement, the owner of the trademark can go for civil legal proceedings against a party who infringes the registered trademark. Basically, Trademark infringement means the unapproved use of a trademark on regarding products and benefits in a way that is going to cause confusion, difficult, about the trader or potentially benefits.

Infringement of trademark on the internet

The expansion of the web is also leading to an expansion of inappropriate trademark infringement allegations. Probably, a company will assert trademark infringement each time it views one among its trademarks on an online page of a Third party. For example, an individual who develops a website online that discusses her expertise with Microsoft software could use Microsoft’s trademarks to consult exact merchandise without the worry of infringement. However, she mainly would no longer be competent to use the marks in this kind of means as to intent viewers of her internet web page to feel that she is affiliated with Microsoft or that Microsoft is someway sponsoring her net web page. The honour could simplest be analyzed upon seeing how the marks are sincerely used on the web page. In this way, there is an infringement of trademark on the internet.

Case laws on Infringement

Hearst company Vs Dalal avenue verbal exchange Ltd.

The courtroom held that a trademark is infringed when a character in the course of trade makes use of a mark which is same with or deceptively similar to the trademark in terms of the goods in respect of which the trademark is registered. Use of the mark by using such man or woman needs to be in a manner which is more likely to be taken as getting used as a trademark.

Amritdhara Pharmacy Vs Satya Deo Gupta,

In this case for determining the connection in two words related to an infringement action was stated by the Supreme Court that there must be taken two words which are deceptively similar.  And judge them by their appearance and by their sound. There must be considered that the goods to which they are to be utilised. There must be a consideration of the nature and kind of customer who would be likely to buy those goods. In fact, it must be considered the surrounding circumstances and also must consider what is likely to occur if each of those trademarks is used in common ways as a trademark for the goods of the particular owners of the marks.

After considering all those circumstances, they came to the conclusion that there will be confusion. This is to say that, not significantly that one man will be injured and the other will gain the illegal benefit, but it for that there will be a mess in the mind of the public which will lead to confusion in the goods then there may be the refusal of the registration.

No action for an unregistered trademark

This is defined under Section 27 of Act that no infringement will lie with respect to an unregistered trademark, but recognises the common law rights of the trademark owner to take action against any person for passing off goods as the goods of another person as services provided by another person or the remedies thereof.

Passing off

Passing off is common legislation of tort, which can be used to put in force for unregistered trademark rights. The regulation of passing off prevents one man or woman from misrepresenting other items or services. The inspiration for passing off has faced some changes in the duration of time. In the beginning, it was restrained to the representation of one person goods to another. Later it was elevated to business and non- trading activities. Therefore it used to be additionally accelerated to professions and non-trading movements. Today it is applied to many types of unfair trading and unfair competitors where the activity of one person cause damage to another person. The fundamental question on this tort turns upon whether the defendant’s conduct is such as deceive or mislead the general public to the confusion between the industry activities of the two.

In British Diabetic organization V Diabetic, both the parties have been charitable societies. Their names have been deceptively identical. The phrases ‘association’ and ‘society’ both should be considering that they have been similar in derivation and meaning and were not completely varied in kind. The everlasting injunction was granted.

Difference between passing off and infringement

The measures for passing off is different from the measures of an infringement. The claim for infringement is a lawful remedy whereas the claim for passing off is a common law remedy. Therefore, in order to establish infringement with respect to a registered trademark, it is only required to prove that the infringing mark is same or deceptively similar to the certified mark and no more proof is required. In the case of a passing off claim, proving that the marks are same or deceptively similar only is not sufficient.

The use of the mark should be likely to mislead or cause confusion. Moreover, in a passing off claim it is necessary to verify that the use of the trademark by the defendant is expected to cause injury or damage to the plaintiff’s goodwill, whereas, in an infringement suit, the use of the mark by the defendant must not cause any injury to the plaintiff. But, when a trademark is registered, registration is given only with respect to a particular category of goods. Protection is, therefore, provided only to these goods. In a passing off action, the defendant’s goods must not be the same; it may be different.

In, Kaviraj Pandit Durga Dutt Sharma Vs. Navaratna Pharmaceutical laboratories,  the Apex court held that there are some differences between the trial for passing off and trial for infringement of a trademark. In American Home Products Corpn. Vs. Lupin Laboratories Ltd., the Court held that it is well-settled law that when regarding the infringement of a registered trademark. It is important to carry in mind the difference between the search for infringement and the search in passing off the trial. In a passing off action, the courts seem to see whether there is deception whereas, in infringement matter, it is important to note that the Trademark Act gives to the owner an exclusive right to the use of the mark which will be infringed in the case of indistinguishable mark and in the case of related marks, even though there is deception, infringement can still take place.

In Satyam Infoway Ltd. Vs Sifynet Solutions (P) Ltd.  it was held by the Court that to proceed action for passing off three elements are required to be established, which are as follows:

• In a trial for Passing off, as the expression passing off itself suggests, is to restrict the defendant from passing off its goods or services to the public which of the plaintiff’s. It is a claim not only to preserve the status of the plaintiff but also to protect the public. The defendant must have traded its goods or given its services in a manner which was deceived or would be likely to deceive the public into thinking that the defendant’s goods or services are the plaintiffs.
• That second element that must be established by the plaintiff is a misconception by the defendant to the public and what has to be placed in the possibility of confusion in the minds of the public that the goods or services offered by the defendant are the goods or the services of the plaintiff. In assessing the possibility of such confusion the court must allow for the ‘imperfect recollection of a person or ordinary memory’.
• The third element of a passing off action is loss or the possibility of it.

Notwithstanding, trademark registration under the Act only has effect in India. To get trademark rights and protection in other countries it is required to register the trademark in those countries. Trademark protection is regional in nature. A single registration will have to be made in every country where protection is wanted. To get protection outside India, it is required to file applications in the respect of the countries individually. In enhancement, there should be registration in a country before you begin the use of the trademark in that country. In some countries such as China, Japan, Continental Europe, and Indonesia, the first person who applies for registration will get the rights of a trademark, rather than the person who first uses the trademark. Hence, the different party could legitimately take trademark by applying for registration even if there is the first person using the trademark.

Expanding  boundaries of the scope of trademark

• Domain name

Every company on the internet has a domain name with a different address in cyberspace at which the website is located. Nowadays companies have internet pages as the producer and consumer are far away located as well as every company is going global. The other purpose is that the Internet has become an essential tool in marketing. The rule came to be revealed as IP numbers are hard to remember therefore they came up with the Domain Name System.

A user of the internet will find the domain name very useful in finding the goods or services that he expected to find. But sometimes a distinct name of a highly commended business may be allowed and passed off as the original one, For example, Tata, Google and Maruti. People visit a website or domain name through a website or a URL. Cybercrime generally means the registration of another party’s mark as a domain name for the purpose of misuse. A domain name has to be related to the product given and it has to be different. While choosing a domain name for a website it is desirable that it should be different. A high level of distinctiveness is allowed that two domain names could not be alike. Two types of disputes that occur which concerns with the domain name.

(i)  That both the parties have the legal right to forming the words for the domain name in use. In this way, the court decides that who is the original owner and who the infringer is.

(ii)The second type is cyber piracy where a party with no legal right questions the real owner. In this type of problem, there is a number of ways by which a trademark owner can fight with cyberpiracy.

• Smell

It is a non-traditional type of trademark. There is a large problem in registering this type of trademarks as there is no physical representation. Due to its high level of distinctiveness, for example, the smell of a perfume strawberry etc., it is difficult to register this kind of trademark. Smell marks are accepted if they are represented with a graphical representation. But this provision is only in some countries. Smell the trademark is protected under copyright. In some instances a particular scent is also a commodity by itself in other circumstances it is a scent used or attached to the commodity not the natural smell of the product itself.

• Sound

A sound may be trademark and can also be registered. A sound mark is a sound or a theme with a different identification effect. A well-known sound mark is music owned by Hemglass. When applying for a sound mark the mark can be expressed by a sound file or by an accurate description of the sound in notation.

• Shape

Distinguishing the one product from another assures that the customer doesn’t get confused by similar products. The shape of goods registered as a trademark as long as the shape is not working. A shape is working if it affects the use or performance of the product. The shape of goods can be a trademark if,

• The shape doesn’t superior working.
• The shape has become connected with public and manufacturer.

.A shape of goods may be registered as a trademark when the shape is not working. Thus if a certain shape is delicate more than useful in daily life and serves no purpose then it may be registered.

Conclusion

Intellectual Property reflects the meaning that it’s subject body is the product of the mind or the intellect. As it’s the product of a productive and creative mind, It can be traded, purchased, given and reserved. All this can be done but there are issues related that to be dealt. Trademarks are very important aspects of Intellectual Property so, the protection of the trademark has become essential in the present day because, every generator of a good or service will want his mark to be different, eye-catching and it should be easily distinguishable from others.

Designing a mark like this is difficult and after this when infringing of the mark takes place it will cause maximum difficulty to the producer. Capital Protection is very important and there should be a step towards Global Intellectual Property Order, if there is no IPR protection, it can be explained that inventive activity will terminate. The reason for Intellectual Property protection is that it can arouse creativity and discovery and prevent the exploitation of inventions.

Public policy here points at keeping an Intellectual Property system which promotes innovation through protection initiatives, while at the same time assuring that this is not at the value of societal interests. In this meaning, the challenge for the World Intellectual Property Organisation would be to include public policy effects in applications carried out with developing countries, such as increasing awareness of flexibilities in existing international intellectual property treaties.

Intellectual Property is not an unusual concept, in fact, it is a concept which is discussed in everyday life whether a movie, book, plant variety, food item, cosmetics, electrical gadgets, software’s etc. It has become a concept of pervasiveness in everyday life. The World Intellectual Property Day on 26th April every year.

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This Article is written by Shreya Tripathi of Banasthali Vidyapith, Jaipur. In this article she has discussed the process of Session Trial and Warrant Trial under the Code of Criminal Procedure and difference between both the procedures.

One of the best and fruitful things received from the British in India during their time was law and legal system of the British, especially the Concept of Criminal Justice System and legislation related to it. Code of Criminal Procedure deals with various procedure in a criminal proceeding. This article mainly focuses on Warrant and Session Trial under the Code of Criminal Procedure.

Session Trial

Process of session trial: Session Court deals with criminal matter at a district level. To be more accurate these offences are of more serious nature, the session court does not have the power to take cognizance only under Section 199 of the CrPC it can take cognizance in all other cases the cognizance will be taken by Magistrate and commit the trail.

• Section 225-  Trial to be Conducted by Public Prosecutor
• Section 226-  the Opening case for Prosecution
• Section 227-  Discharge
• Section 228-  Framing of Charges
• Section 229-  Conviction on a plea of guilty
• Section 230-  Date of Prosecution
• Section 231-  Evidence for Prosecution
• Section 232-  Acquittal
• Section 233-  Entering upon defence
• Section 234-  Arguments
• Section 235-  Judgement of acquittal or conviction
• Section 236-  Previous Conviction
• Section 237-  Procedure in the case instituted under Section 199 (2)

Initial Stage

It is very simple and easy to understand the initial stage with the help of the illustration– In a courtroom, the public prosecutor will act as one side and the accused person will be the other party in the matter. Here, the court expects that all the necessary documents need to be given to an accused person in advance so he has a clear idea why the trail is being taken place.

Public Prosecutor is appointed under Section 24 of the Act, who is acting under the direction of such prosecutor.  

When the case is brought under Section 209 of the CrPC then in those condition public prosecutor needs to present the piece of evidence so the trail can be started without any delay. All the details regarding what all charges are framed against him need to be mentioned in a court of law. After this stage, if magistrate feels that there is no case regarding the accused person then he will be discharged.

Kewal Krishan vs. Suraj Bhan, to avoid unnecessary harassment to the person without any ground as a reasonable ground needs to be given for going to appeal under Supreme Court.

In the case of Prafulla Kumar Samal vs. Union of India, four principles were introduced which should be kept in mind while deciding the case that prima facie case should be made against the accused person and test relating to it differ from case to case.

But if the commission of presumption arises in two aspects:

1. Court of the session can exclusively deal with the case, by writing charges by the court under Section 228 (1)(b) of the Act.
2. If the Court of the session cannot deal with the matter then some other courts have the proper jurisdiction to deal exclusively with the matter by transferring the case to the Competent court or to appropriate CJM or JM of the first class.

Further, the charges made against the accused body will be explained to him in a language which he can easily understand so that no violation takes place due to which delay can be made in the proceeding. If the plea is guilty of the offence committed by him then he may get punished.

Niranjan Singh Punjab vs. J.B. Bijja,, all the evidence and documents are evaluated to find the disclose ingredients of an alleged person during the time of framing the charges.  

Century Spinning and Manufacturing Company case, under this case it was clearly stated if “no sufficient ground for proceeding” then it should not be conducted anymore because it is the wastage of time for the court and an innocent is being humiliated without any valid ground.

Second Stage of the Trial

If the accused person pleads his guilt then he will be punished as per the nature of punishment and he will get convicted and if he did not plead then the court will fix a date for going through a further process like examination of a witness, production of any document etc. He needs to plead guilty from his own mouth, not by his pleader. Any admission made by his leader is not binding in nature.

The court needs to have all pieces of evidence which are presented in the case and during the cross-examination stage.

Prem Kumar vs. the State of Karnataka, it was held that before framing of charges, the court needs to see that documents placed before the court whether FIR or any statement given by witnesses disclosing the ingredients of the alleged offence.

Suresh Kumar vs. State of Uttar Pradesh, accused person is entitled to get copies of the statement of the complaint before the charges are framed.

Difference between Acquittal and Discharge under Trial

State of Maharashtra vs. B.K. Subba Rao and Tulsabai vs. the State of M.P, under both these cases the difference between discharge and acquittal is told. After framing of charges only two conditions are left out whether the acquittal or discharge of accused person. If after framing of charges no evidence is laid down before the court then, the only order of acquittal can be passed not of discharge. In the other case, it is explained that at an initial stage only the court need not have an elaborate inquiry of case, only relevant evidence should be presented to show that reasonable ground is present to take the case at a further stage in relation to the accused person. If no reasonable ground is shown then accused will be discharged or otherwise, he will be given next date for further proceedings.

Third Stage of the Trial  

It is the last stage where the accused person is either convicted or acquittal. The court may acquit the accused person if no evidence is laid down which indicate the involvement of the accused in committing the Act.

If no acquittal took place then, accused get the opportunity to present his case through writing or any other means he can produce evidence, witnesses to defend himself just like the way prosecution did it. An omission on the part of the Judge is the failure of justice. An accused person can apply for an application for compelling the attendance of a witness, all such application needs to be accepted by the court. He can only deny in a situation where he is sure that such application is vexatious in nature just to waste the precious time of the court. After hearing both the side, when the issue arises for giving a closing statement that Section 314 of the Act apply and the Closing statement is given by defence under Section 234 and under Section 235 by the prosecution side.

Before giving a final verdict, the previous conviction checked to see and relate the liability of the accused person in the present case. According to a previous conviction, punishment is decided by the Court of law. Lastly, the defamation of higher dignities cases are handled by the public prosecutor and compensation will be paid by the accused person to the other party for wasting their time and money.

Final judgement should be made by the judge by keeping in mind all the evidence, witnesses and argument. The process of acquittal will be done as per Section 232 and whereas provision regarding conviction is mentioned under Section 235. A judge should pass the sentence of punishment as prescribed in law.

Warrant trial

What is a Warrant  Case?

Warrant case includes offence punishable with the death penalty, imprisonment for life and imprisonment for exceeding two years.  A trial in warrant case begins either by filing an FIR in Police Station or by filing it before Magistrate.

Section 238 to 243 of CrPC so, let’s start with the study. Firstly let’s understand that warrant trial is based on 2 types of cases

1.     On the Police Report.
2.     Other than the Police Report.

The procedure of Trial in warrant cases by magistrates:

1. Compliance with Section 207
2. When accused shall be discharged
3. Framing of charge
4. Conviction on a plea of guilty
5. Evidence for Prosecution
6. Evidence for Defence Side
7. Evidence for Prosecution
8. When accused shall be discharged
9. Again Evidence for Defence
10. Acquittal or conviction
11. Absence of Complaint
12. Compensation for accusation without reasonable cause

Compliance with Section 207: When any warrant case is filed on the Police report, then accused is brought before the magistrate for the recommencement of trial and magistrate shall satisfy himself that he has resulted with Section 207 provisions.

When accused shall be discharged: If upon seeing the police report and the documents sent under Section 173 for making such examination. After hearing both the side and considering all relevant point, if magistrate thinks that charges framed against the accused person are clearly groundless, then he shall discharge the accused and reason should be recorded for doing this act.

Framing of Charge: After considering the examination, if the magistrate is of the opinion that there is ground for presuming that the accused has committed the offence then it will be triable by competent magistrate to give accurate punishment and frame charges against the accused. Charges framed against him will be explained to him and later on, it will be seen that he pleaded guilty or not.

Conviction on a plea of guilty: If an accused person accepts the offence committed by him, then the magistrate shall record the plea and on his discretion may convict him.

Evidence for Prosecution: If the accused refuses to plead the magistrate is not convicted under Section 241 magistrate will fix a date for the examination of witnesses. The magistrate shall supply all the copies related to the statement given by witnesses during the investigation conducted by the Police officer.

On the application made by the prosecution, the magistrate may issue an order of summons to any of its witnesses to be present in the court and to produce any important document or evidence. On the fixed date, the magistrate will proceed to take all shreds of evidence which are produced in support of Prosecution. The magistrate may postpone the cross-examination of any of the witness unless and until any other witnesses are cross-examined.

Evidence for Defence: Accused is given the opportunity to enter upon his defence and produce the evidence to safeguard himself and if any written statement is given by accused in written form then it will be recorded by the magistrate. If the accused, after entering into defence requests the magistrate from compelling a process to present any witnesses for cross-examination purposes or to produce any document in relation to present matter. Then, he will grant the permission for that till the time he believed that it is not done with any vexation intention or to waste the time of the court, or defeating the end of justice.

Case instituted otherwise on the police report

Evidence for prosecution: When a warrant case is instituted other than on the police report that the accused will be presented before the magistrate, the magistrate shall proceed with the hearing process and take all the pieces of evidence as produced in support of the prosecution.

Syed Mohammad Husain Afqar vs. Mirza Fakhrullah Beg (1932) 8 Luck, such evidence must be taken into consideration as laid down under Section 138 of the Indian Evidence Act.

Jethalal vs. Khimji, on the application made to the magistrate to issue the order of summoning to any witnesses for the purpose of presentation or to produce any document.

K.L. Bhasin vs. Sundar Singh, legislature provides an opportunity to the accused person to do a cross-examination of the witnesses produced by the prosecution side after framing of charges it cannot be substituted for the opportunity which is given when the witnesses were examined and before framing of charges.

The main object was to collect all the important evidence and see that particularly the case was prepared against the accused person or not? Witnesses of prosecution side are examined under Section 244 and this process will not start till the time evidence are not collected as in GopalKrishna vs. State of Kerala.

“As may be produced” before closing statement magistrate always ask the party whether he wants to produce more witnesses in support of his case. The magistrate is not under any obligation to order summon for the presence of witness but now it has become mandatory and responsibility for every prosecution party to file an application to order a summons to the witnesses to present themselves before the court on a given date and time Parveen Dalpatrai Desai vs. Gangavishindas Rijharam Bajaj.

Examination of witnesses: It is not necessary to give names of all the witnesses in the list and before the proceeding starts, if a situation arises where the name of some of the witnesses are not mentioned under list, then in that situation those witnesses can also be examined by the magistrate Nawal Kishor Shukla vs. State of Uttar Pradesh.

Summoning witnesses: In a case of a complaint made to the magistrate under Income-tax Act for the offence triable as a warrant case, an order of discharge is given just because the witnesses are not turned up so it becomes illegal. The Gauhati High Court held that the complainant was making extra efforts to order a summons to the witnesses, it becomes the duty of the magistrate to order a summon to all witnesses before giving dismissal order in the case P. N. Bhattacharji vs. Kamal Bhattacharji.

When the magistrate denies examining witnesses whose names are not mentioned under list and rejected the application, then Andhra Pradesh High Court set aside the order and said that complainant has the right to examine a few more witnesses and court is bound to order a summon for them Jamuna Rani vs. S. Krishna Kumar.

When accused shall be discharged: If all the evidence produced by the prosecution side within 4 years from the date of the appearance of an accused person and does not create any ground which satisfies the magistrate to bound the magistrate from not discharging the person.

At any previous stage, The magistrate can discharge the accused person at any previous stage whenever he feels so that no ground or case is against the accused person.

Procedure, where accused, is not discharged: If magistrate has collected all the evidence and after examining it all he is of the opinion that a reasonable ground is made which indicate that the accused person has committed the offence said under the case Ratilal Mithani vs. the State of Maharashtra, then he shall be punished for the same by conducting a proper trial and charges against him will be framed by magistrate. Then all the charges framed by a magistrate will be read and explained to the accused person and he shall be asked whether he pleaded guilty for the offence conducted by him or not.

If he pleads guilty then reason will be recorded by the magistrate and on convicting him on the discretion of the magistrate. If the accused person does not plead or refuses to plead then he will be required to be present on the next hearing for conducting further trial like cross-examining of witnesses presented by the prosecution side.

Mohd. Qasim vs. Gokul Tewari, if he wishes to do Cross-examination of witnesses then particular witnesses will be called and after Cross-examination and re-examination, he shall be discharged. Remaining pieces of evidence of any witnesses on behalf of prosecution side will be taken place after cross-examination and re-examination are done.

Evidence for Defence: Accused shall be given the opportunity to present his case by entering into defence and producing a piece of evidence and witnesses in his support.

Acquittal or Conviction: If on previous stage magistrate is of the opinion that no relevant ground is present to take the case further then he should have discharged the accused person otherwise. After going for the further process then only two options are left out either Acquittal or conviction. Later on, he cannot be discharged will amount to acquittal only. If the magistrate finds that the accused is guilty and did not pass the sentence according to Section 325 and 360 then he will pass the sentence after hearing the accused person.

If any previous conviction is charged under Section 211 (7) of the Act and accused deny to accept that he was previously convicted, then magistrate shall take evidence in relation to previous conviction and record it. Provided that no charges will be read out in front of an accused person and nor ask him to plead for the offence will not refer previous conviction by the prosecution nor any evidence will be cited until and unless accused has been convicted under Subsection (2).

Absence of Complainant: While the proceedings have been instituted upon complaint and if any day complainant is not present on the fixed date is given by the court and the offence is not cognizable in nature, then it is on the discretion of the magistrate to discharge the accused person from the proceeding. Such a discharge order is not considered judgement in Singh vs. Singh. The same condition will be applicable in the case where the death of Complainant is held.

Compensation for accusation without any reasonable cause: If any case is instituted on the complaint to magistrate or to Police officer or an accused person is presented before the magistrate and magistrate finds that there is no ground against accused person then he will be discharged immediately by the magistrate, the person who did the complaint will be called by summon to give explanation of why he should not pay compensation amount to the person against whom accused charges were made.

In the case of Valli Mitha,  when there is more than one accused person then the magistrate will pass an order to award compensation to one or more of them.

The Magistrate shall record or consider any such reason which complainant may show and he is satisfied that there are no reasonable grounds for making the accusation and ordered to pay a particular amount of compensation not exceeding the amount of fine and pay to an accused person.

Abdool Raheem vs. Mehrab Shah, the amount of compensation will be paid to the only accused person, not to his relatives or any other person.

If a person fails to pay the Compensation amount then he will liable to go under simple imprisonment for not exceeding 30 days. If the person is in imprisonment then Section 68 and 69 of IPC (Indian Penal Code) apply. A person who has been directed to pay compensation amount will be exempted from any Criminal and Civil liability in respect of the complaint. When any complainant or informant who has been directed under Subsection (2) by the Second class magistrate to pay an amount not exceeding one hundred rupees may go for an appeal given under Case Pereira Vs. Demello,.

Sarab Dial Vs. Bir Singh, as the compensation amount will be awarded to each accused person so the amount paid per person is one hundred rupees, if it is to be given to eight people then the total amount paid by Complainant or informant to an accused person is eight hundred rupees.

The amount of compensation will not be paid before the period of the appeal get lapsed or after the decision of the appeal is given by the court and where the case is not related to appeal then amount will be paid after the expiration of one month from the date of order. All the given provision under this Section is applicable in Summon and Warrant case too.

Conclusion

Under Session trail, we went through all the complex path which are included in conducting the trial before a Court of Session. Initially, the court decide that whether any ground is present against the accused person for conducting trail, all the evidence and documents are produced before the Court and at last by keeping in mind all the points and evidence magistrate gives the final decision which can be either Acquittal or Conviction and under Warrant case two conditions are given if the complaint is done by the police report or without police report the Informant directly file a complaint to the magistrate, in this case, the accused person will be produced before the magistrate and he will be examined in court, finds out no relevant ground then he will be discharged otherwise the further procedure will continue and the accused person will be given the opportunity to plead for the offence committed by him. Later both the side will present their case with the support of witnesses and evidence and argument, cross-examination and re-examination will be conducted and at last by hearing both sides, the magistrate will decide the quantum of punishment for the accused person.   

References

1. https://www.lawnotes4u.in/2018/12/stage-of-criminal-trial-in-warrant-case.htmlhttp://ww
2. .lawyersclubindia.com/articles/Trial-of-warrant-cases-7919.asp
3. https://lawtimesjournal.in/session-trial/
4. https://www.legalbites.in/crpc-notes-procedure-trial-sessions-court/
5. 1981 SCC (Cri) 438
6. (1924) 26 Bom LR 1243
7. AIR 1979 SC 94
8. 1993 Cr LJ 1450 (AP)
9. 1992 Cr LJ 1554 (All)
10. 1972 Cr LJ 367
11. (1973) 76 Bom LR 70
12. AIR 1993 CriLJ 2984
13. 1993 Cr LJ 368 (MP)
14. AIR 1979 SCR (2) 229
15. AIR 1990 Cr LJ
16. AIR 1994 (2) ALT Cri 155

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This article is written by Pratibha Bansal, a student of Banasthali Vidhyapith, Rajasthan. She has discussed what is a company, procedure for its incorporation, characteristic of a company. Furthermore, the article also discusses the various kinds of companies under the Companies Act 2013.

Introduction

Company is an association of person who takes their meals together. The term is derived from the Latin word (“com” meaning “with” or “together”; “panis” that is “bread”) Section 2(20) of Companies Act, 2013 states that a company means any association of person registered under the present or the previous companies act. It is called a “body corporate” because the persons composing it are made into one body by incorporating it according to the law and clothing it with legal personality.

Under common law, a company is defined as a ‘legal person’ or ‘legal entity’ separate from its member and capable of being surviving beyond the lives of its members. Whereas it is not merely legal, it is rather a legal device for attainment of any social or economic end and to a large extent publicly and socially responsible. It is, therefore, a combined political, social, economic and legal institution.

Features and advantages of the corporate form

a) Separate Legal Entity

The outstanding feature of a company is its independent corporate existence. A company before the law is a person. It is regarded as an entity separate from its members. By incorporation under the Act, the company is vested with a corporate personality which is distinct from the members who compose it. No one can say that he is the owner of the company. Now the business belongs to an institution. Thus a company continues to exist even if the members go on changing from time to time.

In the landmark decision of Salomon v Salomon (1897) AC 22, it was held that a company has a corporate personality which is distinct from its members or subscribers. A single shareholder may virtually hold the entire share capital of the company; even in such a case, the company does not lose its identity. It was declared that the business belonged to the company and not to a single shareholder or number of shareholders and neither of them is liable to indemnify the company for its debts.

In case of Tata Engineering & Locomotive Co. Ltd. v State of Bihar, the Supreme Court described the legal status of a company as  “An incorporated association” before law is equal to a natural person and has a legal identification of its own. It has its own-

• Separate seal  
• Separate assets from that of its members
• Can sue and be sued exclusively for its own purpose

Its creditors cannot obtain satisfaction from the assets of its member’s liability of the shareholders and members is limited to the amount invested by them in the company; similarly, creditors have no to the assets of the corporation. This position of a corporation is similar since the decision of the Salomon case.

The law recognises the existence of the company quite irrespective of its motives, intention, schemes, or conduct of the individual shareholders.

b) Perpetual succession

An incorporated company never dies, as it is an entity with perpetual succession. For understanding this point more clearly let’s assume M, N, and O are the only members of a company, holding all its shares. Their shares may be transferred to or inherited by P, Q, or R who may, therefore, become the new members and members of the company as they are now the shareholders of the company. But the company will remain the same entity, with same name, privileges and immunities, property and assets.

Hence in the case of Punjab National Bank v Lakshmi Industrial & Trading co ltd. it was held by the Allahabad High court that perpetual succession means that membership of a company may keep on changing from time to time, but that does not affect the companies continuity. A company has a perpetual existence i.e it has no soul to be saved or body to be kicked.

Since a company has no physical existence, it must act through its agents and all such contracts entered into by its agents should be under the company’s seal.

c) Common Seal

A Company becomes a legal entity by perpetual succession and also by a common seal. In fact, a common seal of a company is a symbol of its incorporation. It is considered as the official signature of a company. But now by the virtue of 2015 amendment to the Companies Act, a company may or may not have a common seal. As per section 21 of Companies Act, authentication of documents, proceedings and contracts on behalf of a company, signed by any key managerial personnel or an officer of the company duly authorised by the board in this behalf.

According to section 22, a company may, under its common seal can authorise any person generally or in respect of any specified matters, to act as an attorney to execute other deeds on behalf of the company, such deeds can be in or outside India. Such signed deeds by its attorney on behalf of the company binds the company. Provided that in case if a company does not have its common seal as per the amendment of 2015, the authorisation shall be made by two directors or by director and company secretary.

d) Limited Liability of Members

A company having its separate legal entity is the owner of its own assets and bound by its liabilities. Members are neither the owner nor liable for its debts. All the debts of a company are to be paid by itself rather than by its members. Members liability becomes limited or restricted to the nominal value of the shares taken by them in a company limited by shares or the amount guaranteed by them in a company limited by guarantee. Limited liability is a principal advantage of doing business under a corporate form of organisation.

Exceptions to the principle of limited liability

• Incorporation by furnishing false information  

According to section 7(7), (b) of the Act, tribunal may on an application made to it in regards to any fraudulent or false information being furnished by a company during its incorporation and on being satisfied with the same, direct that liability of the members of such company shall be unlimited.

• Fraudulent conduct of business

Under section 339(1), during the course of winding up a company if it appears that any business of a company is carried on with the intent to defraud creditors of the company or any other persons, the tribunal may on the application of the Official Liquidator or the Company Liquidator or any other creditor on being satisfied declare that any person who is or has been a director, manager or officer of the company or any other person knowing part of aforesaid business shall be personally responsible, without any limitation of liability.

• Unlimited company

When the company is incorporated under section 3(2)(c)  of the Act as an unlimited company. Then as the name clearly suggests that the liability of its members will be unlimited.

• Misleading prospectus

As per section 35(3) companies act, where it is proved that a prospectus is issued with an intention to defraud or mislead an applicant for securities of a company or any other person for any fraudulent purpose, then every person who was a director at the time of issuance of  such prospectus or has been named as director in the prospectus shall be personally responsible without any limitation of liability for all and any of the losses or damages.

• Acceptance of deposit with a fraudulent intention

As per section 75(1), when a company fails to repay the deposit or part thereof or any interest referred under section 74 within specified time and it is proved that deposit is accepted with the intent to defraud the depositors or for any fraudulent purpose, every officer of the company who was responsible acceptance of those deposits shall be liable of all or any of the losses or damages that may have been incurred by depositors.

e) Transferability of shares

Section 44 companies act of the Act, declares that “the shares or debentures or any other interest of any member in a company shall be a movable property that can be transferred in the manner provided in the article of the company.” Thus incorporation of a company allows its member to sell their shares in an open market and to get back his investment without any hassle of withdrawing money from the company. This unique feature of incorporation provides liquidity to the investor and stability to the company because on the other hand in a partnership firm partners can’t sell their share in an open market except with unanimous consent of all the partners.

f) Capacity to sue and be sued

Being a body corporate company possesses individual capacity being sued and suing others in its own name. A company’s right to sue arises when some loss is caused to the company i.e. to property or personality of the company. A company also has a right to sue whenever any defamatory material published about it that may affect its business.

The criminal complaint can be filed by a company but it must be represented by a natural person. Not necessarily be represented throughout by the same person but the absence of such representative may result in dismissal of the complaint. Similarly, any default on the part of the company can be sued by the victim on the name of the company only.

g) Company, not a citizen

According to Citizenship Act 1955, only a natural person can be a citizen of India, not a juristic person will be considered as citizen same stated by the Supreme Court in case of The State Trading Corporation Of India Ltd. vs The Commercial Tax Officer. Even though the company does not get the citizenship status of a country, it still can get a residential status.

Procedure for Registration and incorporation of a company

Formation procedure

Starting from section 3 of the Companies Act, which states provision regarding the formation of a company. A public company may be formed by seven or more person, whereas, a private company can be formulated by two or more people and one person company can be incorporated by one person only. By subscribing their names to a memorandum company and complying with the procedure for registration prescribed under the Act company can be formulated according to the provisions of law.

There is an exception for the incorporation of one person company is that its memorandum must indicate the name of another person with his prior consent,  consent should be in writing which is to be filed with the registrar along with its memorandum at the time of incorporation that should be done according to the procedure of law.

The person named then shall become a member of the company in case of subscriber’s death or his incapacity to contract. The named person can withdraw his consent or the at any time can change the name of the other person according by giving notice in such a manner prescribed by law.

It becomes the duty of the member to indicate the change made to the company via indicating it in the memorandum or in any other prescribed manner and the company shall imply the same to the registrar. Such change of name will not be considered as amendments in the memorandum as this change is not affecting any terms and conditions of the company.

Registration procedure under Companies Act 2013

As per section 7 of companies Act,2013, the incorporation of the company shall be filed with the Registrar within whose jurisdiction the registered office of the company is to be situated. Required documents are as follows.

1. Memorandum of association(herein referred to as MOA) and Article of Association (herein referred to as AOA) which is to be signed by all the subscribers to the memorandum in the prescribed form.
2. A declaration is to be made in the prescribed manner by an advocate, a chartered accountant, cost accountant or company secretary who is a part of formation of the company and also by a person named in the article as director, manager or secretary of the company that all the requirements of the act and rules for registration of an association are fulfilled.
3. An affidavit of each of the subscribers to the memorandum and person named as first directors in the article declaring that they have not indulged in any criminal activity during promotion, formation or management of the company neither be found guilty of any fraud or misrepresentation or any breach of duty of any company under present company law or any previous 5 year company law.
4. The affidavit must also state that all the documents given to the Registrar for registration of the company are true to his knowledge that contains all the correct information. If any of such information found wrong, the person shall be liable for action under section 447 of the Act.
5. Correspondence address of company till its registration must be established.
6. All the particulars(name, address, surname, nationality, etc.) of each subscriber to the MOA and person mention as first directors in the AOA of the company along with identity proof and for directors Director Identification Number must be prescribed in case any subscriber is a company then such details should be prescribed.
7. Particulars relating to the interest of the first directors of the company in other firms or body corporate along with their consent to as a director must also be provided.

After collecting all the information and documents, the registrar shall register all the documents and information given to him and issue a certificate in a prescribed form to ratify the company proposed is incorporated under this act.

Company will also be provided with a distinct identity in the form of Corporate Identification Number that must also be included in the certificate issued by the Registrar after incorporation is completed.

Company shall keep all the copies of the documents and information provided during registration at its registered of till its dissolution.

Section -8 of the companies act, 2013  deals with the formation of charitable companies whose objectives are charitable in nature. Such companies must be registered under this act as a limited company.

What are its effects(with respect to section 9)?

All the subscribers to MOA will become members of the company and are capable of performing all the functions of an incorporated company under this act from the date of its incorporation specified in the certificate issued as a proof of such incorporation.

Every alteration that is to be made either in MOA or AOA shall be done through special resolution and after complying with the procedure specified under the act. Such alteration will have no effect without the approval of the Central Government in writing. Such approval is not required for AOA alterations or any alteration in regards to the name of the company is deleted therefrom or addition thereto, of the word.

Difference between the company and partnership firm

Making a distinction between a company and a partnership firm as both are formed by no of members agreeing to for either of them.

•  Companies are incorporated under the companies act whereas partnership firms are created on a mutual agreement between the partners.
•  Companies are governed Indian Companies Act, 2013 whereas for managing and controlling partnership firms there is Indian Partnership Act, 1932.
•  Registration of partnership firms is voluntary unlike of a company which is obligatory under the Companies Act to be recognized as a separate legal entity before the law.
•  Number of partners required for incorporation of partnership firm is 2 max can be 100 and for incorporation of company minimum number of members that are required is 2 in case of private company and maximum can be 200, but in public company it has to be a minimum of 7 persons that can last to unlimited as no fixed number is specified, also one person company can be incorporated by one member.
•  Company is a separate legal entity whereas the partnership firm isn’t.
•  A company has a contractual capacity of suing and being sued in its own name whereas a partnership firm can’t.

Classification of companies

Following are the grounds for making the classification of companies.

On the basis of incorporation

There are two types of companies which are as follows.

• Statutory Companies

Companies incorporation under a special act of parliament or state legislature not under any of the companies act and provisions of the same do not apply to such companies. Example are- RBI, SBI,  Employees State Insurance Corporation etc.

• Registered Companies

Companies which are incorporated under section 7 of the companies act 2013 or any other previous companies law. For example-  Tata, Reliance, Infosys etc.

On the basis of the number of members

There are three forms of companies classified on the basis of the number of members required for its incorporation.

• One person company

Section 2(62) of companies act 2013 defines one person company as a company that is to be incorporated with one person as a member. Whereas section-3 companies act specifies certain exceptions that are to be followed for making registration of a one person company. For example- AVV AD Avenue (OPC) Pvt. Ltd. company, etc.

• Private companies

According to section 2(68), a private company except in the case of one person company limits the number of its members to two hundred, minimum paid-up capital is as may be prescribed. Such companies prevent any public invitation to subscribe to any of its securities.

• Public companies

Public companies defined under section 2(71), as not a private company, whose shares are exchanged in an open trade market. It issues its shares via an initial public offering and the same can be bought by the general public. A minimum number of members required to form a public company is at least seven and may extend to unlimited. There is no restriction on the transferability of its shares.

On the basis of control

There are three categories of companies identified on the basis of control is as follows.

• Holding companies

Section 2(46) of the Act states that when one company is having control over the composition of the board and the company holds the majority of shares in the other company is known as holding the company of that other company.

• Subsidiary companies

A company whose control and composition is regulated by the other company known to be its holding company are called subsidiary companies. Its composition of the board of directors are being controlled by its holding company and more than half of its shares are in possession of that company. Section 2(87) of the act define a subsidiary company.

• Associate companies

Company in which the other company has significant influence but the company is not a subsidiary of the company having such influence(control of at least 20% of total share capital)  is called an associate company according to Section 2(6). These type of companies include joint venture company

On the basis of Liability

1. Limited companies

Liability of its members is either limited to the share bought by them or limited to the amount each member consented to contribute to the assets of the company at it’s winding up.

• Limited by share

Liability of members is limited to the number of shares bought by them in a company limited by share. A company having the liability of its members limited by the memorandum to the amount, if any, due on shares held by them respectively is called company limited by shares according to section 2(22)

• Limited by guarantee

Limited by guarantee is one whose members liability is limited by the memorandum. This liability will be limited to such amount as members respectively undertake to contribute to the assets of the company in the process of it’s winding up. Liability of the members is limited to the fixed sum specified in the memorandum agreed by the members to contribute.

2. Unlimited companies

Limited liability is a desirable option by the members but is not a necessary adjunct to incorporation. According to section 2(92) of the Act, any company not havings limit on the liability of its members is termed as an unlimited company. These types of companies are rarely formed now. AOA is must for such companies stating the number of members with which the company is registered and amount of capital share if it has. Liability of the member is like partners of a firm for all trade debt without any limit.

On the basis of the manner of access to capital

• Listed company

According to section 2(56), any company whose securities are listed on any recognised stock exchange for public trading is termed as a listed company.it is also known as a quoted company.

• Unlisted company

These companies are privately owned companies as they are not listed on any stock exchange. Hence they do not find any opportunity to raise funds.

Doctrine of lifting the corporate veil

It has often been assumed that it is a veil covered on a personality of a company beyond which a court can’t see, which is not actually true. It can be said that this doctrine is an exception to the natural person identity of a company.

In Charanjit Lal v Union of India case, the Supreme Court did not allow a shareholder to sue for the violation of the fundamental rights of a company.

A company before the eyes of law is a legal person but in reality, it is an association of person incorporated under the Act to be called a company. There are certain exceptions when the curtain of corporate personality can be lifted by the court. In the question of property and capacity of acts done and rights acquired or, liability assumed thereby the personality of the company corporators are being ignored. Whereas, when the members enjoying the benefits on the name of a company or when the court wishes so can lift such a veil. Specific grounds on which a court can lift the corporate veil are as follows.

• In case of determining the character of a company- To see whether a company is an “enemy”. In such cases, the court may in its discretion examine the nature of persons in real control of the corporate affairs.
• For the benefits of revenue-The court can cancel the registration of a company if it is used for tax evasion purposes” this statement is held by the Supreme Court in Juggilal Kamlapat v CIT case under income tax act, agricultural income is exempted from tax.
• In Bacha F Guzdar v CIT [AIR 1955 SC 74] Court observed that the income of a tea company was exempted upto 60% as agricultural income and 40% is taxed income. Plaintiff is an employee of such company and demand exemption of 60% in dividend income as to be regarded as agricultural income. Therefore, it was held by the court that though the income of the company is partly agricultural, therefore income, when received by the shareholders as dividends, could not be regarded as agricultural income.
• In case of fraud or improper conduct-The court can refuse to uphold the separate existence of a company where it is formulated to overcome law, to defraud creditors or to avoid legal obligations. Simply stating that whenever a company is incorporated with an intention to defraud its creditors or to avoid legal duties, in such cases the court has the power to lift the veil of the corporation.
• There can be many other possible grounds on which court can lift the veil of a corporation to get to know the true picture of working of any company.

Conclusion

Any association of person to be called a company is to be registered under the procedure prescribed by the Law. An incorporated organisation is queued with a bundle of advantages, which a partnership firm or any other business organisation does not have. Therefore indulging in business with an incorporated organisation is the safest way.

There are many other miscellaneous Category of companies, those are not being discussed in the given article.

The post Overview of Features, Types and Incorporation of a Company under the Companies Act 2013 appeared first on iPleaders.

This article has been written by Pankhuri Anand, a student of Banasthali Vidyapith, Rajasthan. This article discusses all the provisions related to the maintenance of public order and tranquillity under the Indian Penal Code, 1860 and the Code of Criminal Procedure, 1973.

Public order and peace is something that should prevail in every civilised society. Peace and public order are essential for every civilised society and it is the duty of the state to maintain the  Public Order and Tranquility. Section 31 of the Police Act,1861 defines the term “maintenance of public order” which requires that the order should be maintained on public places and should not be obstructed by assemblies and processions.

Several provisions have been laid down in the Indian Penal Code, The Code of Criminal Procedure and The Police Act for the maintenance of public order and tranquillity. Maintenance of Public Order and Tranquility has been dealt with specifically under Chapter X of the Code of Criminal Procedure.

The public order is disturbed mainly due to the following reasons.

• Unlawful Assembly
• Public Nuisance and Urgent Cases of Nuisance
• Disputes related to immovable properties

Unlawful Assembly

The unlawful assembly has been criminalised under the law to preserve public peace and security. The definition and punishments for unlawful assembly have been laid down under the Indian Penal Code which several other provisions have been laid down under the Code of Criminal Procedure as procedures to be followed in matters of unlawful assemblies.

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Provisions under the Indian Penal Code, 1860

Section 141: Definition of Unlawful Assembly

Section 141 of IPC defines the term “Unlawful Assembly”.

For an assembly to be an unlawful assembly, these are the following requisites as laid down by section 141.

Assembly of Five or More Persons

There must be five or more than five persons having a common object. If an assembly lacks the number of requisite members as less than 5, then it can not be considered as an unlawful assembly.

In a landmark case of Amar Singh & Ors. v. State of Punjab, seven people were accused under section 148 and 149 of the Indian Penal Code. out of seven accused, three of the accused were acquitted due to which the conviction of four members was not sustained as the members of where not five or more to be charged with the offence of being a member of unlawful assembly. Total number of members

Common Object

While considering any assembly of five or more persons to be an unlawful assembly, one of the major essentials is the presence of a common object which has been discussed under section 149 of the IPC.

All the members of the unlawful assembly should be involved in the unlawful assembly with a common object. There must be an existence of a common object and the members should have knowledge of it and agree to it.

In the leading case of Iqbal and Anr. V. State of U.P, it was held by the Supreme Court that in the matter of unlawful assembly, the common object must be present as one of the five essentials mentioned under section 141 of IPC. Common object can be gathered in such matters by the nature of the assembly, arms used, the behaviour of that assembly either during the act or prior to the act.

For being an unlawful assembly, the assembly of five or more than five members having a common object should qualify at least one of the five acts mentioned under section 141 of the Indian Penal Code:

1. Criminal Force

The use of criminal force is one of the major essentials for an assembly to be held as an unlawful assembly. The term “Criminal force” has been defined under Section 350 of the Indian Penal Code.

The members of the assembly should overawe by criminal force or use criminal force. When a person is forced to do something which otherwise he won’t do or, forced not to do something he would otherwise do, it is said to be overawed. The use of criminal force by the assembly of five or more persons to create fear in the minds of the public to do a certain act, or abstain from doing certain acts will render it an unlawful assembly.

2. Resists execution of law or legal process

Causing resistance in the process of execution of law or in carrying out any legal process is considered to be illegal. If the assembly resists the execution of law or legal process then it will be considered an unlawful assembly. If the object of the assembly is a legal one, then it cannot be considered as illegal.

3. Commit any “mischief” or “criminal trespass” or other offences

If the members of the assembly are involved in any mischief as defined under section 425 of the Indian Penal Code or, in criminal trespass as defined under section 441 of the Indian Penal Code, or any other offences, such assembly is deemed to be an unlawful one. Other offences include any act or omission made punishable under the Indian Penal Code or under any local laws.

4. Taking or obtaining possession of any property by criminal force

No one should be abstained from using his property or possessing his property because of criminal force. If the assembly uses criminal force or shows criminal force to any person in order to take possession of any property, or deprives any person of using their right to way or water, or any other incorporeal rights which he possesses or enjoys, it will render that assembly as an unlawful one.

5. Compel any person

The assembly if compels any person by the use of criminal force, or showing criminal force to do what he is not legally bound to do, or omission of what he is legally bound to do, it will render the assembly as an unlawful one.

As given in the explanation of section 141, the assembly which is a lawful one when it assembled, may later become an unlawful assembly.

We all have right to Assemble Peacefully guaranteed by the Constitution of India under Article 19(1)(b) but when the assembly of people becomes a threat to Public Order and Tranquility then it becomes an unlawful assembly.

Section 142: Being a member of unlawful assembly

Section 142 of the Indian Penal Code defines a member of an unlawful assembly. Whoever, having the knowledge and being aware of the facts which tend any assembly as an unlawful assembly, intention­ally joins that assembly, or continues being a member in it, is said to be a member of an unlawful assembly.

In an unlawful assembly if any person joins intentionally knowing that the assembly is unlawful, then such member will be considered as a member of unlawful assembly. And, If any person is a member of unlawful assembly he is deemed to be punishable under section 143 of the Indian Penal Code.

Even if a person is a member of the assembly when it’s a lawful assembly and later when the assembly becomes an unlawful assembly, continues in it, then he shall be considered to be a member of unlawful assembly.

Section 143: Punishment

Section 143 of the Indian Penal Code states the punishment for being a member of an unlawful assembly.

Being a member of the unlawful assembly is punishable with:

1. Imprisonment of either description for a term extended upto six months.
2. Fine
3. Both

Whoever is found to be guilty of being a member of the unlawful assembly is bound to be punished under section 143 of the Indian Penal Code.

Provisions under the Code of Criminal Procedure, 1973

Maintaining public order and tranquillity is one of the major objectives of every government. Chapter-X of the Cr.P.C being the second branch of the preventive measures of the Code deals the preventive provisions for maintenance of public order and tranquillity.,

Chapter X of the Cr.P.C, titled as “Maintenance of Public Order and Tranquillity” has provisions to lay down the mechanism of the procedure to maintain public order and peace. The chapter consists of an overall 21 sections which deal with the procedural steps to be followed and taken in the maintenance of public order and tranquillity. Section 129 to Section 132 deals with the provisions for unlawful assemblies.

Section 129: Use of civil force for dispersal of an assembly

According to section 129 of Cr.P.C, the order to disperse any assembly that is an unlawful one and likely to cause disturbance to the public peace may be issued by-

1. Any executive Magistrate
2. Officer in charge of a police station or,
3. Any police officer who is a sub-inspector or above the rank of sub-inspector in the absence of such officer in charge

When an order is passed for dispersal, it shall be the duty of the members of such assembly to disperse accordingly.

After an order for dispersal is issued and such assembly disobeys the order and do not disperse, or, even if not so commanded, the assembly shows determination of not to disperse,then any Executive Magistrate or Officers as empowered under subsection (1) of section 129 may use force in order to disperse such unlawful assembly.

If necessary, even if any male person is not an officer or member of armed force but acting as such, may arrest or confine the members of such unlawful assembly and then they may be punished by law.

The authority to disperse an unlawful assembly has been granted to the Executive Magistrate or the officer-in-charge of a police station. In case of absence of the officer-in-charge, a command can also be given by a police officer, not below the rank of sub-inspector.

In the landmark judgement of State of Karnataka v. B. Padmanabha Behya, it was held by the Supreme Court that when there is an event of firing by the police without lawful orders of authority, the dependents of the deceased are entitled to compensation by the State.

Under article 19(1)(b) of the constitution of India every individual has a  fundamental right to assemble peacefully and without arms but reasonable restrictions can be imposed in the interest of integrity and public order which are to be regulated by the procedures laid down in Chapter X of the Code of Civil Procedure.

Section 130: Use of armed forces to disperse the assembly

Section 130 of the Code of Criminal Procedure comes into play when the unlawful assembly cannot be dispersed otherwise.

1. When an unlawful assembly cannot be dispersed by any other means, and when it is necessary for the public security that such assembly should be dispersed, it can be dispersed with the help of armed forces by the order of  Executive Magistrate of the highest rank present.
2. Such Magistrate may order any officer in command of any group of persons belonging to the armed forces to take the help of armed forces under his command to disperse the assembly. He is also empowered to arrest or confine the members of such assembly in order to maintain the public security in accordance with the orders of the Magistrate. He has also power to have them punished according to law.
3. The requisitions laid down under this section shall be obeyed by every officer of the armed forces empowered under this section in such manner as he thinks fit. While following the orders and taking any step to maintain public security, he shall use as little force with the objective of maintenance of public order.

Section 130 entitles the lawful authority to use force to disperse the unlawful assembly when it is needed in the interest of maintaining public security.

Section 131: Powers of certain armed force officers to disperse the assembly

To maintain public order and tranquillity, certain armed force officers are also empowered to disperse assembly according to the procedure laid down under Section 131 of the Code of Criminal Procedure.

Section 131 of the Code of Criminal Procedure reads as follows.

When the public security is manifestly endangered by an unlawful assembly and no communication can be made with the Executive Magistrate, in such cases certain armed force officers are empowered to disperse assembly with the help of the armed forces under his command, and may arrest and confine any persons forming part of it.  

While such armed force officer is acting under this section and it becomes practicable for him to communicate with an Executive Magistrate, he shall do so. After communication is established, he shall henceforth obey the instructions of the Magistrate regarding whether he shall or shall not continue such action.

This section has been enacted in order to lay down provisions to maintain public security in the case when no executive magistrate can be reached so that the public order and tranquillity can be maintained more efficiently.

Section 132: Protection against prosecution for acts done under proceeding sections

Section 132 of the Code of Criminal Procedure gives protection to the prosecution for any act done under section 129 to 131 of the Code of Criminal Procedure except with the sanction of State or Central Government.

Section 132 states the Protection against prosecution for acts done under preceding sections.

1. No prosecution shall be instituted in any Criminal Court against any person for any act purporting to be done under section 129, section 130 or section 131, except-

(a) when such person is an officer or member of armed forces than with the sanction of the Central Government;

(b) in any other cases sanction of the State, the government is required.

1. (a) The acts done by an executive magistrate or police officer under any of the said sections should be with good faith.

   (b) any person doing any act in good faith in compliance with requisitions laid down under section 129 or section 130.

   (c) when an officer of the armed forces is acting in good faith under section 131.

   (d) Any member of the armed forces shall not be deemed to have committed an offence when he has done any act in obedience to any order issued and which he was bound to obey such order.

(3) In this section and in the preceding sections of this Chapter,-

(a) the expression” armed forces” in this section refers to the military, naval and air forces,

(b)the term ” officer“, used under this section is in relation to the armed forces. Any person commissioned, gazetted or in pay as an officer of the armed forces is considered as an officer. It also includes a junior commissioned officer, a warrant officer, a petty officer, a non- commissioned officer and a non- gazetted officer;

(c) a person in the armed forces other than an officer is considered as a “member” referred under this section.

Essentials for benefit under Section 132

For having the benefit granted under section 132 of the Code of Criminal Procedure, the officer has to fulfil certain essential conditions:

1. There was an unlawful assembly.
2. That assembly was commanded to be dispersed.
3. The assembly did not disperse on the command to disperse.
4. Or, if no command was given the conduct of assembly seemed determined not to disperse.

In the above circumstances, the officer had to use force to disperse the assembly.

Public Nuisances

The term public nuisance has been defined under section 268 of the Indian Penal Code. Though it is not so dangerous and urgent as unlawful assembly, a public nuisance is a threat to public peace and security.  

Provisions under Cr.P.C

The Code of Criminal Procedure, 1973 deals with provisions to deal with the matters of public nuisance. Section 133,134, 135, 136, 137, 138, 139, 140, 141, 142 and 143 deals with the procedures to be followed in matters related to public nuisance and the Urgent cases Nuisance or apprehended danger has been dealt under section 144.

Section 133: Conditional Order for removal of nuisance

According to Section 133, a conditional order can be passed by a District Magistrate, Sub- Divisional Magistrate or any Executive Magistrate empowered by the state for removal of public nuisance.

There are six categories of public nuisance which can be resolved under this section:

1. The unlawful obstruction or nuisance to any public place or to anyway, river or channel lawfully used by the public.
2. The conduct of any trade or occupation or keeping of any goods or merchandise which is/can be injurious to health or physical comfort of the community.
3. The construction of any building, or disposal of any substance, as it is likely to occasion or explosion.
4. A building, tent, or structure, or a tree as it is likely to cause damage or injury to a person.
5. An unfenced tank, well or excavation near a public place or way.
6. A dangerous animal that requires confinement, destruction or disposal.

When a proceeding is instituted under section 133 of Cr.P.C, a civil suit can continue parallel without any bar as held in the case of Rakesh Kumar v. State of U.P.

A conditional order under section 133 of Cr.P.C is mandatory and without it, no final order can be made. The conditional order must specify the time period in which the nuisance or obstruction is to be removed or resolved. The order duly made under this section by a magistrate shall not be called in question in any civil court.

The magistrate can make a conditional order against the following person.

1. The person causing obstruction or nuisance.
2. The person carrying on such trade or occupation which is likely to cause a public nuisance.
3. The person keeping any such goods or merchandise which can be injurious to health or physical comfort of the community.
4. The person who owns possesses or controls such as building, tent, structure, substance, tank, well or excavation.
5. The person owning or possessing such tree or animal which is dangerous and can cause injury or damage.

The conditional order can be passed under section 133.

1. To remove the obstruction or nuisance.
2. To abstain from carrying on such trade or occupation.
3. To remove such goods or merchandise causing nuisance or, to regulate or keep in the manner as directed by the magistrate.
4. To remove, repair or support such building, tent, structure or tree.
5. To fence such tank, excavation or well.
6. To destroy, confine or dispose of such dangerous animal as manner prescribed in the order.

Section 134: Service or notification of order

According to section 134 of the Code of Criminal Procedure, the order shall be served on the person against whom it is made in the manner which is followed for service of summons. If such an order cannot be served, it shall be notified by proclamation or published in such manner as the state government directs.

Section 135: Person to whom the order is addressed to obey or show cause

According to section 135, When an order is served against a person, he is left with two alternatives. He should have to either-

1. Carry out the order by performing in accordance with the directions given in the order.
2. he may show cause against the order issued.

These alternatives are mutually exclusive. A reasonable opportunity should be given to the party to show cause under section 135(b). 

Section 136: Consequences of failing to obey such order

According to section 136, If the person against whom the order is issued fails to perform such act or appear and show cause, he is liable to the penalty prescribed under section 188 of the Indian Penal Code, i.e., Disobedience to order duly promulgated by a public servant.

In the case of Nagarjuna Paper Mills Ltd. v. S.D.M. & R.D. Officer, Sangareddy, the court held that Sub- Divisional Magistrate is empowered to pass an order under section 136 of the code to close factory causing pollution as it failed to produce appreciation certificate from the Pollution Control Board.

Section 137: Denial of Public Right

Section 137 lays down the procedure where public rights are denied. Procedures laid down in section 137 are mandatory before taking recourse on the procedure laid down under section 138 of the Code of Criminal Procedure.

The requirements of this section are as follows.

• Firstly, that the party against whom a provisional order is made shall appear before the magistrate, and deny the existence of the public right in question.
• Secondly, the party shall produce some reliable evidence.
• Thirdly, such evidence shall be legal evidence and shall support his argument of denial of public right in question.

If all these above-said conditions are satisfied, the Magistrate’s Jurisdiction to continue the proceeding is ceased.

As held in the case of Mani Mathai v. Uthuppu, on denial of public right, the magistrate shall conduct a preliminary inquiry.

Section 138: Procedure when he appears to show cause

According to section 138, the magistrate shall take evidence as in summon cases when the person against the order is passed under section 133 of the Code of Criminal Procedure appears and show cause against the order.

There can be two consequences:

1. If the magistrate is satisfied, the order shall be made absolute with or without modification if the order either originally or subject to modification as required, is reasonable and proper
2. If the magistrate is not satisfied, further proceedings shall not be taken in the case.

The proceeding cannot be dropped without taking evidence. It is the duty of the Magistrate to take evidence as the ground of order he has to make. As held in the case of M.L. Gopalaswamy v. State of Mysore, it would be illegal to make absolute a conditional order without recording evidence and this requirement is mandatory.

Section 139 of the Cr.P.C empowers the magistrate to direct local investigation for the purpose of an inquiry under section 137 and 138. The power of magistrate regarding procedure and direction investigation has been given under section 140 of the Code of Criminal Procedure.

Section 141: Procedure to be followed when order is made absolute and consequences of disobedience

According to section 141 of the Code of Criminal Procedure, the procedure has been laid down to be followed on order made absolute and consequences of disobedience of order made under section 136 or section 138. The magistrate shall issue a notice when an order is made absolute directing him to perform order within the time fixed in the notice.

In case if the act is not performed, the magistrate can recover the cost of performing by the sale of building, goods, other immovable or any movable property. But the powers granted under this section should be used in good faith.

Section 142: Power to issue an injunction

Where an order is made by a magistrate under section 133 where immediate measure is required to prevent any imminent danger or serious injury, an injunction can be issued against whom the order is made under section 142 of Cr.P.C. The magistrate may himself use or cause to be used such means to prevent such danger or injury if there is default on the part of such person. The order issued under this section such be made with good faith.

A District Magistrate or a Sub-divisional Magistrate, or any other Executive Magistrate has been empowered under Section 143 of the Code of Criminal Procedure to prohibit repetition or continuance of public nuisance.

Section 144: Order to be issued in urgent cases of nuisance or apprehended danger

Section 144 comes into play when there are urgent cases of nuisance or apprehended danger.

Order can be issued under this section by the following.

1. District Magistrate
2. A Sub-divisional Magistrate
3. Any other Executive Magistrate specially empowered by the State Government in this behalf.

When there is sufficient ground for proceeding under this section, an immediate and speedy remedy is required for maintenance of public order, directions can be issued by the magistrate by a written order directing any person to abstain from certain acts or issue an order with respect to certain property which is in his possession.

Order under this section can be passed and directions can be issued to prevent:

• Obstruction, damage or injury;
• Danger to human life, health or safety;
• Disturbance of the public tranquillity
• Riot
• Affray

Ex-parte order under section 144(2)

If there is a matter of emergency or where delay in the matter in serving notice can lead to grave injury or damage, the order can be passed ex-parte.

Nature of orders passed under section 144

• Temporary order

The order passed under section 144 is temporary in nature. As held in the case of M.S. Associates v. Police Commissioner, it was held that the order passed under section 144 is of a temporary character. It does not acquire a permanent or semi-permanent character merely on being repeatedly issued.

• Restrictive Order

The order passed under section 144 is a restrictive order and not a mandatory order directing a person to do some act. In the case of Kushumkumaree Debee V.  Hemalinee Debee, it was held that the magistrate is only entitled to issue restrictive order, preventing a person from doing some act. He cannot make a mandatory order and issue directions to do some act. This section does not empower magistrate to make a positive order.

Time Duration

According to section 144(3), an order issued under section shall remain in force for a period not exceeding more than two months.

But, in exceptional cases where the state government considers it necessary in order to maintain public order and for preventing danger to human life, health and safety, or to prevent riot or affray, the order issued by magistrate can be extended for a further period of six months.

As an example of section 144, one of the most famous instances which you all have come across was the gathering at Ramlila Maidan when section 144 was imposed at Ramlila Ground, New Delhi and Baba Ramdev was arrested.

Section 144A: Power of magistrate to prohibit carrying arms in procession etc.

According to section 144A, for the maintenance of public peace and security, the District Magistrate may prohibit carrying of arms in procession, or organising or practising any mass drill with or without arms within his local jurisdiction by means of public notice or order.

The notice or order issued under this section can either be issued against a particular person or a group of people belonging to a particular community association or organisation.and the order or notice issued under this section shall be enforced for a period not exceeding three months. But, if the State Government considers necessary for the maintenance of public peace and security, the period may be extended for not more than six months.

Disputes related to immovable property

Section 145 to 148 of the Criminal Procedure deals with the procedures when there is likely to be a breach of peace and public order due to a dispute relating to immovable property.

Section 145: Breach of peace by a dispute regarding land and water

Section 145 basically deals with disputes regarding possession. The main objective of this section is to prevent any breach of public peace by maintaining possession of one or the other party which the court finds has the immediate possession before dispute unless the actual rights are decided by the civil court.

Under this section, when a report of police officer or information of dispute which is likely to cause breach of peace concerning land, water or boundaries is brought before the Executive Magistrate and he is satisfied by such report or information, he shall make a written order requiring the parties to attend his court either in person.

According to subclause (3) of this section, the service of order is to be done as the procedure laid down for the service of summons under the Code of Criminal Procedure.

There must be an apprehension of breach of peace and public order for the magistrate to pass preliminary order. As held in the case of Ram Pal Singh v. Bhagelu, a magistrate is not bound to give preliminary order if he/she finds that there is no apprehension of breach of peace.

Before the Magistrate passes the final order, both parties should be allowed to put forward their evidence before the court. As held in the case of N. A. Ansary v. Jackiriya, the opportunity to both parties for producing evidence before the court is mandatory and if the opportunity is not given, the proceeding is been vitiated.

The right under section is not merely procedural rights but certain substantive rights as well and as held in the case of Dhanbar Ali v. Haripada Saha, the procedures laid down under this section have an integral connection with the enjoyment of the immovable property and it should not be dealt lightly by the trial court.

Section 146: Attachment and appointment of a receiver

After making an order under section 145, the magistrate can anytime order under section 146 for attachment of the subject in dispute and appointment of a receiver if:

• The Magistrate considers the case to be of an emergency
• he decides that none of the parties was in the possession as referred under section 145
• He is unable to satisfy himself that which of either party was in possession of the property in dispute.

When there is no longer felt that there are chances of breach of peace, the order of attachment can be withdrawn at any time by the magistrate.

When a receiver is subsequently appointed by the civil court for the subject in dispute:

• The Magistrate shall issue an order against the receiver appointed by him to hand over the possession to the receiver appointed by the civil court.
• Thereafter, discharge the receiver appointed by him.
• Make any other order as may be just.

In the case of Ranjit Singh v. Moti Lal Katiyar, it was held that the power should be exercised by the magistrate with due care and diligence and it should be exercised in limited cases when immediate action is required to maintain peace and prevent any breach of public order.

Before an order of attachment is passed, serving notice to the opposite party is not mandatory as an opportunity of hearing needs to be exempted in emergency cases as held in Krishna Chandra Patel v. Khela Kuri Patel.

Section 147: Dispute regarding the right of use land or water

Section 147 of Cr.P.C acts as an amplification of section 145. This section empowers the executive magistrate to issue a written order against the parties to appear before the court either in person or by pleader, if he is satisfied upon the report submitted by the police or information of dispute which likely causes a breach of peace due to a dispute regarding land or water within the local jurisdiction. The right claimed against the matter in dispute can be an easement or otherwise.

The magistrate hears both parties in accordance of evidence produced by both parties and decide the right of parties exists or not applying provisions of section 145 in the inquiry. Order can be issued by the magistrate prohibiting any interference regarding the exercise of such rights.

In the case of Gulam Farid Mian v. Ahmad Bhathihara, it was held that for this section the person may not be referring the right of easement in the strict sense but may have acquired right of the user by any other mode. The right should be distinguished from the use of land as owner and in a lawful way.

Section 148- Provisions for local inquiry

According to section 148, when under section 145, 146 or 147, the necessity to conduct an inquiry is felt, a District Magistrate or Sub-divisional Magistrate may depute any subordinate magistrate to conduct an inquiry by issuing a written instruction which may be necessary for his guidance.

After conducting an enquiry, the report is submitted by the deputed magistrate and it may be read as evidence in the case. For any cost incurred by any party in proceeding under section 145, 146 or 147, the magistrate can issue direction of payment by the party. The order can be passed to make payment either in part and proportion. The expenses with respect to witness and pleaders’ fees may also be included in the expenses as the court feels reasonable.

As held in the case of Lakhan Singh v.  Kishun Singh, the principle of natural justice should be followed and the party should be given an opportunity to be heard before any adverse order is passed against it.

Conclusion

Public Peace and security are necessary for every civilised society and it is the duty of State to maintain public order and tranquillity. The provisions of the Indian Penal Code and the Code of Criminal Procedure lay down the provisions to maintain public order and tranquillity.

Indian Penal Code states provisions and punishment for acts which can be a threat to public peace and security while the Code of Criminal Procedure states the procedure which needs to be followed by the state to maintain the public peace and tranquillity. The procedures under chapter X of Cr.P.C are to be taken in urgent matters which are a threat to public peace and security. Either the threat to public order is by an unlawful assembly, a public nuisance or due to a dispute related to immovable property, Chapter X of Cr.P.C contains procedures to deal with such instances.

References

1. Ratanlal & Dhirajlal, The Code of Criminal Procedure, 16th Edition,2002
2. The Code of Criminal Procedure, 1973
3. https://indiankanoon.org/doc/978569/
4. https://www.latestlaws.com/articles/all-about-maintenance-of-public-order-and-tranquility-under-code-of-criminal-procedure-by-ekta-kumari/
5. http://kanoon.nearlaw.com/2018/01/24/powers-magistrate-public-order/
6. https://economictimes.indiatimes.com/news/politics-and-nation/baba-ramdev-arrested-section-144-imposed-at-ramlila-ground/articleshow/8730207.cms
7. Rakesh Kumar v. the State of U.P[(1994) Cr. LJ  All 289 ].
8. Nagarjuna Paper Mills Ltd. v. S.D.M. & R.D. Officer, Sangareddy, [1987 Cr LJ 2071 (A.P)]
9. Mani Mathai v. Uthuppu, [(1985) 2 Crimes 370 Ker.]
10. M.L. Gopalaswamy v. State of Mysore [1974 Cr LJ 1119 (Kant)]
11. M.S. Associates v. Police Commissioner, [(1997) Cr. LJ 377 (381)Del.]
12. Kushumkumaree Debee V.  Hemalinee Debee [(1933) 63 Cal 11]
13. Ram Pal Singh v. Bhagelu [(1977) CrLJ 210]
14. N. A. Ansary v. Jackiriya [1991 Cr.LJ 476 Mad]
15. Ranjit Singh v. Moti Lal Katiyar [1988 (1) crimes 102 All.]
16. Krishna Chandra Patel v. Khela Kuri Patel [1996 CrLJ 3918 Ori.].
17. Gulam Farid Mian v. Ahmad Bhathihara [1978 CrLJ  1323]
18. Lakhan Singh v.  Kishun Singh [1970 CrLJ 1571]

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This article is written by Richa Goel of Banasthali Vidyapith in which she has discussed the relationship between constitutional law and the administrative law, and their sources, background, etc.

Introduction

In the present era, administrative law is recognized as a separate branch of legal studies but at the same time, the disciplines of the constitutional administrative law may overlap with each other at a certain place which is known as water shades in administrative law. It can include the whole control mechanism provided in the constitution for the control of administrative authorities which is Article 32, 136, 267, 227 and 311. It may also include inter-state council; Article 263, finance commission; Article 280; interstate water dispute authorities; Article 262, public service commission. It may also include the limitation imposed by constitutional laws on delegations of powers to the administrative authorities. So the watersheds under administrative law show that administrative law is not totally independent from constitutional laws. But it is interred related to each other. The difference between the two itself shows that both are supplementary and complementary to each other.

“It is logically impossible to distinguish administrative from constitutional law and all attempts to do so are artificial.”

“The constitutional law describes the various organs of government at rest, while administrative law describes them in motion.”

So we can say that the structure of legislature and executives is the subject matter of constitutional law and its functions are the subject matter of administrative law. Both these subjects are closely connected to each other and form the platform for proper, responsive and accountability of the act to the government. Constitutional law is core law which gives very life and blood to the administrative law. Anything which is derogatory to the words and spirit of constitutional law is ultra vires and void ab initio so it must be noted that if we really want to comprehend of constitutional law and administrative law then we need to have a strong understanding.

Background

The relationship between constitutional law and administrative law is very complicated. The origin of administrative law depends upon constitutional law. When we got independence in 1947 then at that time the aspirants of the people were enshrined from various Articles from our supreme constitution which is a legal document and which is a platform for the proper functioning of the administrative settlement of administrative authorities.  In countries like India, which has its own written constitution, there is an additional control over administrative actions by the constitutional law which imposes limitations upon the organs of the administrative body. So in a country having a written constitution with judicial review, it is impossible to separate administrative law from the constitutional law completely.

Relationship

The relationship between the administrative law and constitutional law is not very watertight, sometimes administrative law invades into the territory of constitutional law, so it is very important for jurists, scholars and law students to develop a proper understanding between the relationships between these two. Both constitutional law and administrative law are parts of the public law which shows that constitutional law is the mother of administrative law and it cannot be totally separated from each other.

In constitutional law, arbitrary action is limited by the norms and principles of administrative law of fairness, reasonable and justness. Administrative law deals with the organizations, powers, functions, and duties of administrative authorities, on the other hand, constitutional law deals with the general principles relating to the organization and powers of various organs of the state and the relationship of these organs with the individuals. The constitution describes the various organs of the government at rest, while administrative law describes them in motion. It may be pointed out that constitutional law deals with the rights and administrative law focus on public needs.

It is a necessity of time to draw a line of between these two laws in order to define the territory of the functioning of the jurisdiction of both the laws.

Importance

The doctrine of water shades is very important as it gives a base to establish a line of proper demarcation of the proper boundaries for the functioning of both the laws. It defines the relationship between the constitutional law and Administrative law which was defined by various English authors like Dicey and Holland which is already discussed above. Their definition clearly states that the laws are dependent and interconnected to each other.

Reasons

There are various reasons and the need for the growth of the administrative law. With the passage of time and circumstances, the needs of the people and state are also changing therefore, the legislature makes the administrative law as a separate legal discipline. Administrative law controls the arbitrary action of the legislative authority which is very essential for the protection of public rights and duties.

The role of government is also changing with the passage of time. In developing countries like India, the role of government is wider because it acts as a provider instead of facilitator and regulator. Today, the expectations of the people from the government are very high. So, the role of government is not only to protect the people from external aggression and internal disturbances but also to take care of every citizen from the mother’s womb to grave. Therefore, the development and the growth of administrative became the backbone of modern political philosophy. Hence, there is a great need to separate administrative law from constitutional law because it is the demand and need of the people and the state but still administrative law and constitutional law cannot be completely separated from each other because they overlap at certain places which are known as water shades in administrative law. It contains various provisions and mechanism of constitutional law which shows that constitutional law is the mother of administrative law and so a child cannot be separated from his mother completely. In today’s world, there is no need of government to just define the rights of the individual but there is a need for solving the problem of public. The government has to come forward to actively protect the weaker section of the society rather than defining the rights which are already written in the Indian constitution. So these needs imply the growth of administrative law and process.

Today everyone feels that it is the duty of the government to resolve the conflict and maintain peace and harmony between the individuals and state which is very essential for the overall development of the nation. The production and distribution of resources according to the requirements of the people and the state is also a great responsibility of the good government, so this again has led to the growth of administrative law and process.

In modern times, the development of science and technology and control over it is also considered as the responsibility of the government. Due to the development of science and technical industries, various problems may arise such as unemployment, over-exploitation of natural resources, haphazard urbanization so this multi-dimensional problem cannot be solved except with the growth of administrative law.

The main reason behind the development and growth of Administrative process and law can be the inadequacy of the traditional type of courts and lawmaking organs which are not able to give the performance which is required in the present time for the proper functioning of welfare and functional government. In modern times, there are needs of technical nature of legislation, flexibility with quick action and the quality performance of the government. The traditional legislative organs cannot pass the quality and quantity of laws which are required for modern times. So it is also a great reason behind the growth and development of Administrative laws and the legislative process. Administrative agencies were also required to maintain the record of facts, evidence and the decision.

Historical growth

Administrative law has become the most eminent feature of the government in today’s era and at the same time, it is also the most ancient. Administrative law was alive even in ancient times. The history of the same can be traced back to the Mauryas and Guptas who have a well-organized and centralized administration. The rule of Dharma was in action. Every man of the monarch observed this rule and no one claimed immunity. It was said that the administration could only be run on the principles accepted by dharma and thus was followed by the kings and his officers. Principles such as natural justice and fairness were few of the power which was in the ambit of dharma. The parameter of dharma was wider than the rule of law or due process of law.

Administrative law also existed in England but there it was not adopted as a separate branch of legal discipline until the emergence of the 20th century.

“There was no administrative law in England”.

“In England, we know nothing of Administrative law and we wish to know nothing about it”.

“During the last thirty years due to the increase of duties and authority of English officials some elements of Droit have entered in the law of England”.

“Unfortunately, Dicey misunderstood the scope and ambit of Administrative Law. While studying the rule of law, he excluded altogether administrative law and a special system of administrative courts”.

“The study of Administrative law has to suffer a lot because of Dicey’s conservative approach”.

“It may truly now be said that we have a developed system of administrative law”.

So, from the above discussion, we can conclude that according to some authors there was no existence of Administrative Law in England while some other authors or scholars have the view that there is an existence of Administrative law in England. Before the emergence of the 20th century, the Administrative law existed in England but it was not adopted and accepted as a separate branch of law.

Expansion

Administrative law came into existence for fulfilling the needs and the demands of the people and state. So, due to this reason both Constitutional law and Administrative law are separated from each other. Though they still overlap at certain places and cannot be completely separated from each other because the origin of Administrative law exists in Constitutional law. There is a need for this law as a separate legal discipline to control the arbitrary action of administrative authority and protect the rights of an individual and public at large. Its essence is found in every branch of law, which cannot be ignored.

Sources

For a better understanding of Administrative law and its functions, it is necessary to know about the sources of it. In India, the Administrative law is the part of ordinary law of land. The sources of Administrative law in India are different from other countries like America and England.

In America, the sources of Administrative law are statutes, common laws, and implied powers of the administration.

In England, the sources of this law are statutes, precedent, subordinate legislation, and significant case laws.

Constitutional law is the most important source of Administrative law in India. It is the origin and soul of Administrative law. In other words, we can say that constitutional law is the mother of Administrative law. So, without a constitution, Administrative law cannot perform its functions and work properly because it totally depends on the soul of our country’s constitutional law. Statutes are also a great source of this law. It also came from the constitution. State legislature gives the lawmaking power to parliament. The power for administration have been even guaranteed under statues and all such powers have to conform to the statutory pattern.

The ordinance is also a good source of this law. It empowers the President and Governor to promulgate during the recess of parliament under Article 123 and during the recess of state legislature under Article 213 respectively. This provision brings flexibility on the level of union and the state to make laws which are necessary for the emergency situations and circumstances in which certain laws and acts declared void by courts of law. The Chief Executive has the great ordinance making power but it cannot be unlimited. Ordinances can be issued by the Governor on the advice of Council of Ministers. There are a need and the requirements of approval for the confirmation of ordinance.

In the case of Bank nationalisation case, the Hon’ble Supreme Court held that:

“If an ordinance is made on collateral grounds then it can be challenged before the Supreme Court”.

Later on in S.R. Bommai v. Union of India, the Supreme Court has held that proclamation of emergency on ground of failure of constitutional machinery under Article 356 is subject to judicial review. Accordingly, Presidential Rule in certain states was held to be unconstitutional.

Conclusion

So, the conclusion of this Article is that the “Watersheds” is the area where both the laws overlap with each other. In present time Administrative law is recognized as a separate and independent legal discipline from Constitutional law but in reality, it is not so. There are various provisions and mechanism of constitutional law which deals with the administrative law and in the same manner, some functions and works of administrative law which are totally dependent on Constitutional law. So in this way, they are interlinked to each other and they cannot be separated completely. In other words, we can say that watersheds work as a bridge between the two laws. This new law came into existence on the needs and demand of the time and circumstances. It controls the arbitrary action of legislative authority and protects the rights of the public. There are various sources of this law in which Constitutional is the main. Administrative law is nothing without the constitution as its origin is deeply rooted in the womb of the constitution.

References

1)https://www.lawteacher.net/free-law-essays/administrative-law/relationship-between-constitutional-law-and-administrative-law-administrative-law-essay.

2)https://www.abyssinialaw.com/component/k2/item/294-constitutional-law-and-administrative-law

3)https://www.lawnotes.in/Relationship_between_Constitutional_Law_and_Administrative_Law

4)http://www.supremecourtcases.com/index2.php?option=com_content&itemid=54&do_pdf=1&id=6769

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This article is written by Richa Goel of Banasthali Vidyapith. In this article, she has discussed the jurisdiction of a civil court and the place of institution of the court under Code of Civil Procedure.

Introduction

“Ubi Jus Ibi Remedium” which means that where there is right there is a remedy, a basic principle of English right which is accepted by the Indian law. When a person right is curtailed or being infringed then he has to approach to the appropriate forum or the appropriate judicial forum for the award of compensation. Such judicial form must have an authority to adjudicate on the matter. the judicial forum must have jurisdiction to deal with the matter. Each Court has a different jurisdiction.

Meaning of jurisdiction

In general meaning, Jurisdiction is the power of the Court to take the cognizance of an offence and to determine the cause of action.

According to Black’s Law dictionary Jurisdiction means “A court’s power to decide on a case or issue a decree.”

The jurisdiction was defined in the case of Hirday Nath vs  Ram Chandra. The High Court of Calcutta stated that jurisdiction may be defined as judicial power of Court to hear and determine the cause and adjudicate upon it.

Jurisdiction is decided mainly on the basis of:-

• Pecuniary value
• Local limits of Court
• The subject matter of Court

So the Court before taking the cognizance of offence, the following points needs to be taken into consideration:-

• The pecuniary value of the suit
• The nature of the case
• The territorial limits of the court

It is not only sufficient that forum must have an authority to deal with the matter or that the court has a pecuniary jurisdiction or the court has a local jurisdiction but the court must be competent enough to grant the relief in such matter.

In the case of Official Trustee vs Sachindra Nath [1]

The court held that in order to deal with the matter the court must not be enough to decide a particular matter but also the court has the power to pass the order sought for.

Jurisdiction of Civil Court (Section 9)

The word civil is not defined in section 9 itself. According to Dictionary “civil rights is private rights and remedies that are different from the criminal and political”. The word “nature”  indicates the identity or essential character of a person or thing. So, we can draw the definition of suits of civil nature means that the suit in a dispute relating to private rights and the suit must not be related to a political or criminal matter.

The civil court shall have jurisdiction to try all the suits except the suit which is impliedly or expressly barred.

A suit which is related to the right to property or suit in which office is contested is of civil nature suit, notwithstanding that such right may depend entirely on the decisions of questions as to religious ceremonies or rites. It is immaterial whether the fees to the office are attached or not, or whether such an office is attached to a particular place or not.

The suit which is expressly barred means the suit which is barred by any statute or any other law for the time being in force. The legislature has an option to bar the jurisdiction of the civil court with respect to a particular class of suit keeping itself with the ambit of the power conferred on Constitution of India. The establishment of the tribunal has taken away the jurisdiction of the civil court with regard to the subject matter that is allotted to the tribunal on the first instance, however, if any questions related to law raised, or any provision of the act so created the tribunal can be looked into by the civil court.  The civil court has no jurisdiction over the matter in which court under the Code of Criminal Procedure, Revenue Court has exclusive jurisdiction, or matter is dealt with special tribunal dealt under special statutes. example Motor Accidents Claims Tribunal, Cooperative Tribunal.

A suit is impliedly barred when it is barred by either the general principle of law or general conduct of law. The basic purpose of barred impliedly is that the court should not deal with the matter which causes injurious to the public or which is against the public will.

In the case of P.M.A Metropolitan vs Moran Mar Marthoma [2],

The Supreme Court observed that:-

• The phrases used in section 9 has a positive and negative meaning
• The earlier part has a wider sense as it covers all the matter of civil nature; on the other hand, the latter part has a wider sense as it excludes the matter which is impliedly or expressly barred.
• The two explanations mentioned in Section 9 expresses the legislative intentions.
• It cast an obligation on the court to exercise the jurisdiction for the enforcement of private rights
• No court is at discretion to refuse the matter which falls under this section
• It is mandatory to take the cognizance of matter because the word “shall” is used which means that it is a mandatory section.

In the case of  Shankar Narayanan Potti vs K. Sreedevi

The Supreme Court held that the ‘Civil Court has inherent jurisdiction in all types of civil matter as per Section 9 of CPC unless the suit is expressly or impliedly barred.”

This means that Legislature can exclude the jurisdiction of the civil court by inserting a provision or clause in any Act itself.

In the case of State of A.P VS Manjeti Laxmikanth Rao

The court held that for the purpose of constructing the test to determine the exclusion of civil court it is necessary to look into the intent of the legislature to exclude the jurisdiction. It means that the test is done to determine whether there is any reason for the exclusion of jurisdiction and if there is any reason, to further find out whether the just reason is justified or not. Although justification is not subjected to judicial review. Once the court satisfies itself of the reason, then it needs to determine whether the Act which excludes the jurisdiction provides an alternative remedy for the same or not. An alternative remedy must be in regard to such function which civil court must exercise in absence of such exclusion and would be empowered to pass any order which the civil court in similar circumstances would have passed.

In the case of Bar Council of West Bengal vs A. Austin

The High Court of Calcutta states that when the statute which bars the jurisdiction does not provide an alternative remedy then the jurisdiction of the civil court cannot be excluded.

In the case of Balawwa vs Hasanabi

If a part of the suit is excluded from the jurisdiction of civil court then it is not necessary that the entire suit cannot be instituted in the civil court.

In the case of Shri Panch Nagar Parak vs Purushottam Das

If there are no express provisions in any statute the court needs to look into purpose, scheme and relevant provisions of the Act in order to determine implied exclusion of the jurisdiction of a civil court.

Place of suing

Section 15 to 20 deals with the place of suing

There are three kinds of jurisdiction to determine the place of suing:-

• Territorial jurisdictions
• Pecuniary jurisdictions
• Subject matter jurisdiction

Whenever the suit is brought before the court the first question is to determine is whether the court has a jurisdiction to deal with the matter. If the court has all these (territorial, pecuniary, or subject matter jurisdiction then only the court has the power to deal with the case. In the case, if the court does not have any of the above-mentioned factors then it will be considered as lack of jurisdiction or the irregular exercise of jurisdiction. when the court who does not have jurisdiction decide the case and give decision then such decision will be considered as void or voidable depending upon the different circumstances.

Pecuniary jurisdiction ( Section 15)

Every suit shall be instituted in the court of lowest grade competent to try it. The word competent denotes that the court must have the power to hear the case with regards to pecuniary jurisdiction. The court of lowest grade who has a jurisdiction with regards to pecuniary value shall deal with the case at first instance.

The issue arises:- who will determine the value of the suit?

Ordinarily, the plaintiff makes the valuation of the suit for the purpose of determining the pecuniary jurisdiction of the court unless it prima facie appears to the court that the valuation was not done correctly.  When the court finds that the valuation was either done overvalued or undervalued, then the valuation will be done by the Court and the court will direct the party to approach the appropriate forum.

The jurisdiction of the court is decided by the plaintiff valuation but not the amount for which decree is passed.

Lets us understand from an example, if the court has a pecuniary jurisdiction of Rs 15000 and the suit for recovery of accounts is filed on the valuation of suit done by the plaintiff. The valuation was of Rs 15000. Later the courts find that Rs 20000 is due, in this case, the court is not deprived of its jurisdiction to pass a decree for that amount.

It is the valuation done by the plaintiff to determine the jurisdiction of the court. But this does not mean that the plaintiff is set free to file for any arbitrary value and to choose the court in which he wants to file a suit.

When the court finds that valuation is done improperly for the purpose of avoiding the jurisdiction of the appropriate court, the court may require the plaintiff to prove that valuation was done in a proper manner.

Territorial Jurisdiction (Section 16 to 20)

It is divided into:-

• Suits related to immovable property ( Section 16 to 18)
• Suits related to Movable property ( Section 19)
• Other suits( Section 20)

Section 16 states that the suit related to immovable property shall be instituted where such immovable property is situated.

It talks about the institution of the suit with respect to:-

• Recovery of immovable property with or without profit or rent
• Partition of immovable property
• Foreclosure, sale or redemption in case of charge or mortgage upon immovable property
• Compensation for a  wrong caused to immovable property
• Determination of any interest or rights related to immovable property
• Recovery of movable property under attachment or distraint, for all the above-mentioned purpose.

When the suit is filed for the relief or compensation for wrong caused to immovable property held by a defendant or any other person on the behalf of a defendant where the relief can be obtained through his personal attendance then suits may be instituted in a court within whose local jurisdiction:-

• the property is situated, or
• the defendant voluntarily and actually resides or carries on business or personally for gains.

Section 17:-Cases in which the immovable property is situated within the local limits of the jurisdiction of different courts.

When the suit is filed for obtaining the compensation or relief for the wrong caused to immovable property situated within the jurisdiction of two or more courts, the suit may be filed in any court within whose local jurisdiction a portion of the property is situated. But in respect for the value of subject matter of the suit, the entire claim is cognizable by such court.

Section 18– A place of an institution when the jurisdiction of courts is uncertain

When there is uncertainty with regards to the local limits of the jurisdiction of courts, and any of the courts has satisfied that there is a ground for uncertainty, record the statement and may proceed with the case to entertain and dispose of the case. The decree passed by such court will have the same effect as if the property was situated within the local limits of its jurisdiction.

In a case where the court taking the cognizance of case does not record the statement and objection is brought before Appellate or Revisional Court, the Appellate or Revisional court shall not allow the objections unless it is satisfied that at the time of institution of suit there was no reasonable ground for uncertainty as regards to jurisdiction of Court and there has been a failure of justice.

Section 19– Suits with regard to movable property

When Applicable

Where the suit is for the wrong caused to the person or property.

Conditions

• If the wrong was done within the local limits of the jurisdiction of one court

and

• The defendant voluntarily resides or carries on his business or works for personal gain within the local limits of the jurisdiction of another court then the plaintiff has an option to file at either court.

Lets us understand through an example

A, residing in Delhi, beats B in  Bangalore. B may institute the suit either in Delhi or Bangalore.

A residing in Bangalore, publishes a defamatory statement of B in Delhi. B may sue A in Bangalore or Delhi.

Other suits to be instituted where defendants reside or cause of action arises (Section 20)

When Applicable

When there is a breach of contract or commercial transactions

Conditions

• If the breach of contract was done or cause of action arises within the local limits of the jurisdiction of one court

And

• Defendant voluntarily resides, carries on his business or works for personal gains  within the local limits of the jurisdiction of another court the plaintiff has an option to file at either court

Example

C is a tradesman in Bangalore, D carries on business in Hyderabad. D, by his agent in Bangalore, buys goods from C and requests C to deliver them to Amarchand Company. C delivers the goods in Bangalore accordingly. C may sue for the price of goods either in Bangalore where the cause of action arises or in Hyderabad where D carries on his business.

Objections to jurisdiction( Section 21)

If objection related to the place of suing:-

• pecuniary limits
• competence of the executing court with regards to local limits of its jurisdiction

is not brought in the Court at the first instance, before settlement or in a case where the issues are settled, then no objection will be allowed by the Revisional or Appellate Court unless there is a failure of justice.

Non- Applicability

• Territorial jurisdiction
• Pecuniary jurisdiction

In the case of Karan Singh vs Chaman Paswan

When the court commits an error in entertaining the suit with regard to pecuniary or territorial jurisdiction then the decision given by such court will not be void but will be considered as the illegal exercise of jurisdiction.

Bars on a suit to set aside a decree on objection as to the place of suing (Section 21A)

No suit shall be brought up challenging the validity of decree passed in a former suit between the same parties or between the parties litigating under the same title on any ground based on an objection as to a place of suing.

Conclusion

The concept of the place of suing is very important as it helps to determine the jurisdiction of each court. It helps to the plaintiff where to file a suit. It saves the time of the court in determining the jurisdiction of the court.

References

1) AIR 1969 SC 823

2)AIR SC 2001

The post Jurisdictions of Civil Court and Place of Suing appeared first on iPleaders.

This article is written by Saumya Saxena, a BBA LLB student at Symbiosis Law School, Noida of Batch 2022. This article analyzes the concept of Stridhana and its various kinds under Mitakshara and Dayabhaga schools.

The word ‘Stridhana’ has been derived from ‘Stri’ (woman) and ‘dhana’ (property). In this way, stridhana etymologically means a woman’s property. The concept of stridhana has come down all the centuries from the Hindu Smritis but today, it has engulfed all forms of marriages in all visible castes and regions.

A text from Yajnavalkya Smriti runs as under: “What was given to a woman by the father, mother, her husband or her brother, or received by her at the nuptial fire or presented to her on her supersession and the like is denominated woman’s property.”

Stridhana is any valuable property including land, ornaments, etc, which is exclusively owned by the woman. Stridhana is a woman’s property over which she has got absolute power of disposal. Stridhana is different from other kinds of property held by a woman known as a woman’s estate. Before the Hindu Succession Act, 1956 was passed, property owned by a woman could be classified into two categories- stridhana and the woman’s estate.

Difference between stridhana and women’s estate:

After the commencement of the Hindu Succession Act, 1956, any property owned by a Hindu female is her absolute property under Section 14(1) of the Act except the property which is covered by Section 14(2).

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Kinds of Stridhana

• Dayabhaga

According to Dayabhaga, there are two kinds of stridhana:

• Yautaka

Etymologically it means whatever is given at the time of marriage when the bride and bridegroom are sitting upon the same seat. Thus, Yautaka means all gifts given to the bride during the marriage ceremonies while she and her husband are sitting together.

• Ayautaka

All the gifts which are not Yautaka fall in this category. It includes not only gifts and bequests made by father and other relations before the marriage, but it also includes gifts and bequests made to a woman by relations other than the father after marriage.

• Mitakshara

According to Mitakshara, the property may be divided into two categories on the basis of the women’s independent power of disposal over it.

• Saudayika Stridhana

Property obtained by a married or unmarried girl, from the husband, or parents, at the husband’s or father’s place, is called Saudayika. All sorts of Saudayika is absolutely at the woman’s disposal and she may spend, sell or give it away at her own pleasure. Her husband does not have any control in the dealings or use of Saudayika.

• Non-Sauyadika Stridhana

All the remaining kinds of Stridhana fall under this category. A woman does not have the power to dispose of this Stridhana property during coverture without the husband’s consent.

Test of Stridhana

Whether a particular property is Stridhana or not would depend on the following factors:

1. The status of the woman at the time of acquisition of property, i.e. whether she was unmarried, married or a widow;
2. The source from which the property was acquired; and
3. The school of Hindu law to which the woman belonged.

Enumeration of woman’s property

• Gift and bequests from relations

It is the recognized head of stridhana. Such gifts may be given to a woman during maidenhood, coverture or widowhood, by her parents and their relations, or by the husband or his relations. Such gifts may be made inter vivos or by will. The Dayabhaga school does not recognize gifts of immovable property by the husband as stridhana.

• Gift and bequests from strangers

Property given as a gift inter vivos or by will by strangers (other than relations) to a woman, during maidenhood or widowhood, constitutes her stridhana. The same is the position of the gifts given to a woman by strangers before the nuptial fire or at the bridal procession.

• Property acquired by self-exertion and mechanical arts

Property acquired by a woman at any stage of her life by her own self-exertion, such as singing, dancing, manual labour or any mechanical art.

• Property purchased with stridhana

In all schools of Hindu law, it is a well-settled law that the properties purchased with stridhana or with the savings of stridhana, as well as all accumulations and savings of the income of stridhana, constitute stridhana.

• Property acquired by compromise

Under Hindu law, there is no presumption that a woman who obtains property under a compromise takes it as a limited state. Property obtained by a woman under a compromise whereunder she gives up her rights to her stridhana will be stridhana. When she obtains some property under a family arrangement, whether such property will be stridhana or woman’s estate will depend on the terms of the arrangement.

• Property obtained by adverse possession

In all schools of Hindu law, it is a settled law that any property that a woman acquires at any stage of her life by adverse possession is her stridhana.

• Property obtained in lieu of maintenance

Under all schools of Hindu law, the payments made to a woman in lump sum or periodically for her maintenance including the arrears of such maintenance constitutes stridhana. In addition to that, all movable and immovable properties transferred to her by way of an absolute gift in lieu of maintenance is also stridhana.

In Chinnappa Govinda v. Valliammal, the father-in-law gave some property to his widowed daughter-in-law for her maintenance. He passed away in 1960 leaving behind his interest devolved by succession to his daughter-in-law. The daughter-in-law filed a suit for partition in order to get her share of inheritance. Other family members said that she would be allowed to take her share only on one condition that she will include the property given to her under the maintenance deed in the suit properties. The Court held that there was no need for her to surrender the property given to her by the father-in-law under the maintenance deed as it was her stridhana.

• Property obtained by inheritance

A Hindu female can inherit property from a male or a female, she may inherit it from her parent’s side or her husband’s side.

• Share obtained on a partition

After the commencement of the Hindu Succession Act,1956, the share obtained on a partition is considered as stridhana. According to Section 14 of the Hindu Succession Act, 1956  states that any property that a Hindu female receives on the partition after the commencement of the Act will be considered her absolute property. And any property she gets on the partition before the commencement of the Act will also be her absolute property only if she possesses it at the time of commencement of the Act. In Krishnamma v. Kumaran Krishnan, the court observed that the share that a Hindu female gets on a partition will be considered as her absolute property.

Power of women over stridhana

• Power of Management

Like the Karta of a Hindu joint family, she enjoys the power of management. In fact, her position is slightly superior to the Karta as the Karta is merely a co-owner of the joint family but she is the sole owner. Thus, she alone is entitled to the possession of the estate and its entire income, she can spend it as per her own wishes. And if she saves the income, the savings will also be her stridhana.

• Power of Alienation

Like the Karta, she has limited powers of alienation i.e. she can alienate property only in exceptional cases. She can alienate the property for:

• A legal necessity, i.e., for her own need and for the need of the dependents of the last full owner,
• for the benefit of the estate, and
• for the discharge of indispensable religious duties such as marriage of daughters, funeral rites of her husband, etc.

• Surrender

She is empowered to renounce the estate in favor of the closest reversioner. It means that she can voluntarily accelerate the estate of the reversioner by giving away her own estate.

For surrender to be valid, three conditions must be satisfied, the first one is that it must be of the entire estate, though she may retain a small portion of her maintenance. The second condition is that the estate must be in favor of the nearest reversioner either male or female. The third condition is that the surrender must be bonafide and not a device of dividing the estate with the reversioners.

• Reversioners

If the female owner dies, the estate goes back to the heir or the heirs of the last owner as if the latter died when the limited estate ceased. Such heirs may be male or female known as reversioners. The property of the female is passed on to the reversioners when her estate comes to an end on her death, but it can also come to and end even during her lifetime if she decides to surrender.

• Right of Reversioners

The reversioners have a right to prevent the female owner from making a wasteful use of the property or improper alienation. They can sue the woman holder for an injunction to restrain waste. They are in the capacity of a representative, they can sue for a declaration that alienation made by the widow is null and void and hence will not be binding on them after her death. However, by such a declaration the property does not go back to the widow nor does it go to the reversioners.

After the woman’s death or the termination of the estate, if earlier, they filed a suit for declaration that the alienation made by the widow was null and void and did not bind them. The Supreme Court observed that when a Hindu female holder of a woman’s estate makes improper alienation, the reversioners are not bound to institute a declaratory suit during the lifetime of the female holder. After the death of the woman, they can sue the alienee for the possession of the estate treating alienation as a nullity.

Judiciary on Stridhana

In the case of Bhai Sher Jang Singh v. Smt. Virinder Kaur, Punjab & Haryana High Court stated that if a woman claims property, ornaments, money, etc which were given to her at the time of marriage, then the husband and his family members are bound to return back such property. If they deny to return back the property, then they will have to face strict punishment. The Court held that Bhai Sher Jang Singh and his family had committed an offense under Section 406 for committing criminal breach of trust as they had dishonestly misappropriated the ornaments which were the stridhana that Virinder had given to her husband for safe-keeping.

In Pratibha Rani v. Suraj Kumar, the Supreme Court observed that Pratibha Rani was tormented and denied stridhana by her in-laws. Pratibha Rani’s parents had fulfilled the demands of her in-laws by giving gold ornaments, Rs 60,000 cash and other items to her husband’s family. Few days after marriage, her in-laws started harassing her for dowry and kicked her out of the house along with her two minor children without providing any money for their survival.

She had lodged two complaints against her husband and in-laws under Section 125 of the Code of Criminal Procedure, 1973. The lower court favored her in the judgment but the High court reversed the judgment. Later, the apex court gave the judgment in her favor.

The Supreme Court said that the joint holding of a stridhana property by husband does not constitute any co-ownership. The Court further said that a woman can file a suit against her husband if he denies returning stridhana property under Section 14 of the Hindu Succession Act, 1956, as well as under Section 27 of the Hindu Marriage Act, 1955.

The Pratibha Rani case is the only remarkable judgment which discusses the concept of stridhana and the applicability of Section 405 of the Indian Penal Code, 1860.

How to keep a check on Stridhana

It is suggested that married women should maintain a list of their stridhana and must take care of its security, for instance, keeping their jewellery in bank lockers which are opened in their single names. Following are some precautionary steps that should be followed to keep a check on stridhana:

1. Women should maintain a list of all the gifts received before, after and at the time of marriage from her parents, in-laws, relatives, and friends.

2. Women should keep a record of all the evidence for the gifts, she should make sure that the gifts and the bills are in her name and are kept carefully. Wedding pictures may also be kept as a piece of evidence.
3. Women should have witnesses for gifts at the time of marriage.
4. Women should have their own separate account for their salary.
5. Women should take part in the financial decisions of the family so that they are aware of what is happening in the family.
6. Women should keep a record of bank accounts and the investments made out of her stridhana, and to make sure that such investments are made in her name.
7. Women should be very careful about storing their jewellery and other money instruments, etc.
8. Parents should give income-generating property like land, bonds, etc, rather than expensive luxury goods because it is quite difficult to provide details of a consumer good.

The post Stridhana: a Woman’s Absolute Wealth appeared first on iPleaders.

This article has been written by Pooja Kapur, a fifth year law student from Amity Law School, Noida. She has discussed the law of easements in India along with the concept of licenses.

Meaning and nature of Easements

The concept of easement has been defined under Section 4 of The Indian Easements Act, 1882. According to the provisions of Section 4, an easementary right  is a right possessed by the owner or occupier of the land on some other land, not his own, the purpose of which is to provide the beneficial enjoyment of the land. This right is granted because without the existence of this right an occupier or owner cannot fully enjoy his own property.

It includes the right to do or continue to do something or to prevent or to continue to prevent something in connection with or in respect of some other land, which is not his own, for the enjoyment of his own land.

The word ‘land’ refers to everything permanently  attached to the earth and the words ‘beneficial enjoyment’ denotes convenience, advantage or any amenity or any necessity. The owner or occupier referred to in the provision is known as the Dominant Owner and the land for the benefit of which the easementary right exists is called Dominant Heritage. Whereas the owner upon whose land the liability is imposed is known as the Serviant Owner and the land on which such a liability is imposed to do or prevent something, is known as the Servient Heritage.

Illustrations-

1. ‘P’ being the owner of certain land or house has a right of way over Q’s house, adjacent to his house, to move  out of the street. This is known as right of easement.
2. A voluntary dedication of right by ‘X’ to the public for passing or re-passing over a surface of certain land is not a right of easement.
3. X’s right to go on his neighbour Y’s household for fetching water from the well for the purpose of his own household  is a right of easement. Here, the way to the well is through Y’s land only. Hence, X has an easementary right to pass through Y’s household.

In the words of great jurist Salmond, easement is that legal servient which can be exercised on some other piece of land specifically for the beneficial enjoyment of one’s own land. Right of easement is basically a form of privilege, the integral part of which is to do an act or prevent certain acts on some other land for enjoyment of one’s own land.

Other examples of right of easement includes-

• Right of way
• Right to discharge rainwater
• Right to sunlight etc

Essentials of Easements

1. Dominant and Servient Heritage

For the enjoyment of right of easement, necessary existence of two properties i.e dominant and servient heritage is a  must. This is because as per the definition, it is the right exercised by the owner or occupier of one land for enjoying the benefit of his/her land, over the land of some other person. Dominant and servient heritage cannot be one. Thus, the existence of two properties and that to be separate from each other is essential.

2. Separate owners

For exercising the right of easements, owners of the two properties shall be different and not a single person.

3. Beneficial Enjoyment

The object of easements is that the dominant owner enjoys it in a way which includes express and implied benefits.

4. Positive or Negative

Easements can be both positive or negative. Former refers to a right through which the dominant owner does some act to exercise the right over the land of the servient owner. Whereas, the latter denotes an act of prevention. In a negative easement the dominant owner prevents or restricts the servient owner from doing certain act or acts. 

In a right of easement an owner of dominant heritage can do an act or prevent the servient owner from doing something but he cannot bind the servient owner to do something for him.

The easementary right exists only when two heritages are adjacent to each other. It is a right in rem, which means a right available against the whole world. Easement as a right is always annexed to the dominant tenement. It is a right of re-aliena which means a right over a servient tenement and no on one’s own land.

Classification of Easements

Section 5 of the The Indian Easements Act, 1882 classifies the easements as follows–

Continuous or Discontinuous

Continuous easements are the one whose enjoyment may be continued without the intervention of any human conduct or act of a man. There is no interference by a man and it adds special quality to the property. While, on the other hand, right of easement for the enjoyment which an  interference of a man is required is known as discontinuous. In this kind of easement, it is necessary that a human act is done on the servient heritage.

Apparent or Non- Apparent

An apparent  easement is one the existence of which can be seen through a permanent sign. It can be visible by a careful examination and on reasonable foresightedness. It is also known as express easement. An inspection is required to check the existence of a right. For example- There is a drain from A’s land to B’s land and from there it led to an open yard. This can be visible through a clear inspection and is an apparent easement.

Whereas, a non-apparent easement is just opposite of what apparent easement is. This kind of easement is not visible through an inspection. There is no permanent sign as such. The right is in use but is not visible and thus, is known as an invisible easement. For example,  A’s right annexed to A’s land to prevent B from building on his own house.

Another example to explain non-apparent easement is that the right to stop construction over a certain height.

Limitations or Conditions of Easements

An easementary right may be permanent or for a period of years or for a limited term. It can    also be subjected to periodical interruption or may be exercisable at a particular place, between certain hours and for a certain or particular purpose. This right can also be granted on a condition that such a right shall become void or voidable on happening of some event or non performing of some act. These limitations or conditions which regard to the right of easement has been specified under Section 6 of the Act.

Restrictive Easements

Section 7 specifies that the easements are restrictive of certain rights which are as follows-

• Exclusive right to enjoy
• Right to advantages arising out of the situation

Profit a Prendre

According to The Indian Easements Act, 1882, profit a prendre is a part of the definition of easements. An instance to explain the concept is, a right to take earth from the land of the other person for making an earthenware is a profit a prendre. This is basically a profit made out of the land of the other person. Other examples of profit a prendre-

• Right of fishery
• Right to take fruits of trees in the season

This is the right which is exercised on the land appurtenant to the dominant heritage. Hence, there shall be the existence of two heritages i.e. dominant and servient. The owner of the dominant heritage exercises this right on the property of the servient owner. Profit a prendre is a right to do something on the land of servient tenement for more beneficial enjoyment of the dominant heritage.

Modes of Acquisition of Easements

Express Grant

The easement can be  acquired through express grant made by inserting the clause of granting such a right in the deed of sale, mortgage or through any other form of transfer. This involves expressing by the grantor of his clear intention. If the value of the immovable property is Rs.100 or above then it compulsory for it to be in writing and duly registered.

Implied Circumstances

Easementary right can be acquired in implied circumstances in the  following ways-

• Easement of Necessity

Section 13 of the act deals with this. This consists of the circumstances where the owner or occupier  cannot use his property without exercising the right of easement over the servient heritage. Thus, absolute necessity is the test and the convenience.

For example– X sells his land  to Y for agricultural purpose. Here, Y cannot access his land without passing through Z’s land (his neighbour). Thus, this is an easement of necessity.

When a joint property is partitioned amongst various coparceners and if right of easement over one share of the property is essential for the enjoyment of the share of the other coparcener then latter shall be entitled to easement.

• Quasi Easements

In the case of a person transferring his property to another person then-

• If an easement is continuous, apparent and necessary to enjoy, then in such a case the transferee shall be entitled to it,
• If such an easement is continuous, apparent and necessary to enjoy the said property, the transferor has a right to such  easement over property transferred by him
• In case of partition of the property of the joint family, if an easement is continuous, apparent and necessary to enjoy the share of one coparcener over the other coparcener, then he is entitled to such a right of easement.

Easements are quasi as those are arising out of circumstances,i.e. When common properties are converted into tenements by way of sale, mortgage, partition or through any other form of transfer. In such a case, there is an implied grant of right of easement.

For example– P’s right attached to Q’s house to receive air and light through a window without any obstruction  by his neighbour. This is a continuous.

• Prescriptive Easements

Section 15 provides for this type. Following are the requisites-

• Right must be definite and certain,
• Right must have been independently enjoyed without any agreement with the servient owner,
• Must be enjoyed openly, peacefully and as of a right without any interruption for a continuous period of 20 years and in respect of any government land the period of non-interruption shall be 30 years.

• Customary Easements

An easement right can be acquired by virtue of a local custom. This is known as customary easements. Section 18 of the Act provides for it. For example- people living in a particular city or town having a right to bury the dead in a particular area or riparian right to use water.

Extinction of Easements

Section 37 to 47 of the The Indian Easements Act, 1882,  provides for the mode of extinction of easements.

• Dissolution of Servient Owner’s right

In the situation where the grantor ceases to have any right in the servient tenement because of some reason, then the right of easements ceases to exist as well. This has been specified under Section 37 of the Act. For eg- X grants a piece of land to Y for a period of 20 years in the year 1970. In the year 1971, Y imposed an easement in favour of Z. In 1990 Y’s interest came to an end. Thus, easementary right granted to Z ceases to end as well.

• Expiry of time or happening of an event

When an easement is acquired on certain conditions or for certain purpose or for certain period of time. On the fulfilment of such condition or purpose or expiry of the time, the right of easement extinguishes as well as in accordance with Section 6 of the Act.

• Extinction by release

Where in a situation the owner of the dominant heritage releases the right of easement to the servient owner, the right ceases to exist. Such a release can be both expressly or impliedly made. For eg- P has a right to discharge water through the eaves to Q’s yard. P  authorized Q to construct a building to such a height as not be able to discharge water. Q builds it and P’s right comes to an end.

• Termination of necessity

When necessity terminates the easement of necessity terminates as well. For example- A grants a piece of land to B on which easement of necessity for B is the right of his way over A’s land. Later on, B purchases  a part of the A’s land over which he may pass to reach his own land. Here, the necessity has ended and so does the easement.

• Useless Easements

When easement is of such a nature that is not useful or becomes incapable of being beneficial at any time or under any circumstances, then the right of easement ends.

• Permanent  change in the Dominant Heritage

When the nature of the dominant heritage changes permanently with increase in burden on tenement, then the right of easement ceases to exist as the purpose of it was the beneficial enjoyment of the dominant heritage. For example- A’s house is located such that he has a right of way by passing through B’s house. Later, due to earthquake, B’s house got cut off and thus, right of easement ends.

• Extinction by destruction of either of heritages

When either of heritages gets destroyed, the easement ends as it is essential for two properties to exist for exercising the right.

• Unity by ownership

By unity of ownership it is indicated that when one person becomes the owner of both the dominant and servient heritage then the right of easement terminates. For instance, A has right of easement over B’s property. Later on, A purchases B’s property and becomes the owner of B’s property. In such a case, easement extinguishes.

Another example which can be stated her to explain the concept  is that A has a right of easement over B’s land. In future A takes B’s land on rent, here A becomes the occupier of B’s land. Thus, easement terminates.

Suspension of Easements

Section 49 of the Act provides that easement can be suspended under the following circumstances-

1. An easement is or can be suspended when the dominant owner becomes entitled to the possession of servient heritage for a limited interest. An example which can be stated here to explain the concept  is that A has a right of easement over B’s land. In future A takes B’s land on rent, here A becomes the occupier of B’s land. Thus, easement suspends.
2. When the servient owner becomes entitled to the possession of dominant heritage for a limited interest, the easement is suspended.

Thus, where both the dominant and servient owner becomes one, easement is suspended.

Revival of Easements

Section 51 of the Act provides for the situations wherein easement suspended or extinguished can be revived, which are as follows-

1. When an easement is extinguished by destruction of either of the heritages then it can be revived-

• If the heritage is restored in 20 years.
• If the heritage is rebuilt in 20 years

2. In case of unity of ownership, if the unity breaks due to some reason, then easementary right can be revived and also through an order of a competent court.

Licenses

Section 52 of the Act deals with the concept of licenses. Where one person grants to another person a right to do or continue to do something in or upon the immovable property of the grantor, something which if he does will be unlawful without the prior permission or the availability of the grant. Such a right shall not amount to an easmentary right or creation of interest in the property.

Essentials of licenses

1. It is a permission granted, i.e a right arising out of permission.
2. Legalises an act.
3. Is revocable on the act of the grantor.
4. It is always in respect of immovable property.
5. It is a right in personam.

Revocation of licenses

License can be revoked in following ways-

1. If from the cause of preceding the grant, the grantor himself ceases to have any interest in the property, the license gets revoked. Grantor’s interest comes to an end.
2. By express and implied release of the license by licensee.
3. There are certain cases wherein a license is issued under certain conditions or limitations. This includes a license issued on a condition that if a certain act is doe or is not performed then the license may become void. In such a situation wherein these acts are performed then license can be revoked. Also, licenses are granted for the fulfillment of certain acts and once it is fulfilled license can be revoked.
4. Where a property in relation to which a license was granted gets destroyed due to any reason, then a license can be revoked.
5. Where, a licensee himself becomes the owner of the property for which license was granted, then the purpose for which license was granted ceases to exist and thus, the license also ceases to exist and gets terminated.
6. When licensee does not use it for a period of 20 years then the license gets revoked.

Transferable Licenses

According to Section 56 of the Act, a license can be transferable under the following conditions-

1. A license to attend a place of public entertainment may be transferred by the licensee. This may be gathered from the grant or contract, or from surrounding circumstances or local usage. For instance, P grants Q, a right to walk over P’s field whenever he pleases. The right is not annexed to any immovable property of Q. The right cannot be transferred.
2. Transfer by licensee- The general rule is that the licensee cannot transfer his license. If he transfers then the transferee becomes a trespasser and can be or may be ejected.

Irrevocable Licenses

Section 60 provides that license can also be irrevocable. If the license is coupled with a transfer of property and the transfer is in force, it cannot be revoked. This is subject to the agreement. Hence, the power can be reserved. The rule is that a bare license may be revoked but if coupled with a transfer of the property, then it is irrevocable.

A license coupled with an interest in a land is binding. A license coupled with profit a prendre is irrevocable, for example, Right to excavate earth and carry it to make earthen wares, right to cut and carry timber on payment of royalty.  

If the licensee, has executed some work which is permanent in nature and has incurred expenses, the licence cannot be revoked and hence, is irrevocable. For example,  there are two companies, namely X and Y having lands adjoining to each other. The agents were common who managed to put up the building and tank on X’s land for use by Y. License is irrevocable as the rule applied as was held in Ramson V dyson.

Tabular difference between Licenses and Easements

Conclusion

The Indian Easements Act, provides for the whole concept of right of easements and its regulation in India. Easement as defined under Section 4 of the Act is a right enjoyed by the owner of the dominant heritage over the heritage of servient owner for the beneficial enjoyment of his own land. It not only defines what actually easements consist of but also provides with its classification. Easements can be prescriptive, customary, quasi and of necessity.

Thereafter, modes of acquiring easements has been provided under Section 7 of the said Act according to which it can acquired through an express grant or is in certain circumstances considered to be an implied right. If easement is to be acquired through the express grant then such a clause has to be specifically mentioned in the deed of sale, mortgage or any other deed in accordance with the mode of transfer. Easements is a right in rem, that is, it is available against the whole world. It can be subject to limitations as well and can be restrictive too. Easements can be both positive and negative. Whereas, on the other hand licenses can only be positive in nature.

Further, the Act talks about the provisions regulating the suspension, extinction and revival of the easements. Also, how easements is different from licenses has been discussed. The article also explains the concept of licenses along with its essentials. License can be revocable as mentioned in the Act  and irrevocable as mentioned under Section 60 of the Act. They can also be transferred according to Section 56 of the Act. It is a right in personam which is not available against the whole world but is granted personally.

References

1. http://theindianlawyer.in/statutesnbareacts/acts/i19.html
2. https://indiankanoon.org/doc/82950642/

The post An Overview: Law of Easements in India appeared first on iPleaders.

Written by Pragya Chandra pursuing Diploma in M&A, Institutional Finance and Investment Laws (PE and VC transactions) offered by Lawsikho as part of her coursework.  Pragya is a Legal Advisor with Portfolio Financial Services Ltd.

Introduction

These are incredible times for our country. It is placed before the World with the largest potential for growth in multi-sectors. Recently, India climbed 23 points in the World Bank’s ease of doing business index to 77th place, becoming the top-ranked country in South Asia for the first time and third among the BRICS.

Thus the investment climate in India has historically never been as attractive. To highlight a case in reference, lately the figures of NRIs keenly investing in India have rocketed. Clearly, the NRI Community feels the Government efforts of easing the business process, removal of red-tape and booming domestic consumer market and that all of this combines to give handsome returns on investments. And of course, the emotional umbilical cord of NRI with the parent country is an added addition.

A report on the state of NRI investments in the Indian real estate sector, compiled by 360 Realtors, a leading real estate consulting company, has found that NRI investments in Indian real estate have already doubled from $5bn in 2014 to $10.2bn in 2018. Government of India has taken various steps to promote investments by Indians living abroad, in India. Investment promotion, through the dissemination of information on the investment climate and opportunities in India and advising prospective investors including the Non-Resident Indians (NRIs) about the investment policies and procedures and opportunities, has been taken up as a priority.

The astonishing figures of new establishments and startups in the form of Limited Liability Partnerships and its immense growth are known by all. There were over 85,000 registered LLPs in India till February 2017. A total of 26,977 were incorporated in 2016, 28 per cent more than in the previous year. The number of LLPs grew around 81 per cent between 2014 & 2015.  India’s open and pluralistic society provides a stable and predictable socio-political environment when compared to the rest of the world.

As India beacons the global community to invest; the Government is now focusing on the Indians who reside in foreign countries and their ability to aid the Indian Economy by investing in India. Having established the raison d’etre let us delve into the structured nitty-gritty of how can an NRI invest in LLPs in India?

What does NRI really mean?

Before proceeding with the technicalities of the said topic, let us first have a look at who really is an NRI? People often misconstrue while differentiating whether a person really is an NRI or not.

There are two major laws in India which specifically define the term “Non-Resident Indian” -The Income Tax Act, 1961 and The Foreign Exchange Management Act, 1999; for the applicability of the respective laws. The fundamental difference between both the definitions is that in Income Tax Act, the determination of an NRI is based on the Number of Days the person resides abroad and that in FEMA is upon the intention or motive of that person to reside abroad.

According to the I.T. Act, 1961 

An individual who does not satisfy both the conditions as mentioned below will be treated as “non-resident” in that previous year; if he/she is in India for:

1. At least 182 days in that year, OR

2. At least 365 days during 4 years preceding that year, and at least 60 days in that year.

According to the FEMA Act, 1999 

(i) Indian citizens who stay abroad for employment or for carrying on a business or Vocation or any other purpose in circumstances indicating an indefinite period of stay abroad.

(ii) Indian citizens working abroad on assignment with foreign government agencies like the United Nations Organisation (UNO), including its affiliates, International Monetary Fund (IMF), World Bank etc.

(iii) Officials of Central and State Government and Public Sector undertaking deputed abroad on temporary assignments or posted to their offices, including Indian diplomat missions, abroad.

Of course, there are few exceptions and conditions precedent which needs to be fulfilled under both the laws to attract the provisions. However, that is an altogether different aspect and needs a detailed understanding of the same.

Can an NRI Invest In LLPs In India? 

The most crucial question is whether an NRI can invest in Limited Liability Partnerships in India? And the answer is yes! In fact, NRIs can also be partners in such arrangements.

However, there are a few conditions and regulations introduced by the RBI, various FDI Policies and FEMA; which requires the process to be followed and permission to be sought from RBI before NRI investing in an LLP in India.

Under Schedule 4 of the TISPRO Regulations, an NRI can invest, on non-repatriation basis, in:

(a) the capital instruments (i.e., equity shares, compulsorily convertible debentures, compulsorily convertible preference shares and share warrants) (“Capital Instruments”) of an Indian company, without any limit, either on the stock exchange or outside it;

(b) units issued by an investment vehicle (i.e. AIF, REIT or InvIT), without any limit,

either on the stock exchange or outside it;

(c) the capital of a limited liability partnership, without any limit; and

(d) convertible notes issued by a start-up company.

Also, an NRI can also invest in the capital of a firm or proprietary concern in India, by way of contribution.

Further, NRIs are now also allowed to make above-said investments, through the

companies, trusts or partnership firms that are incorporated outside India and are owned and controlled by NRIs.

Procedure- How to Invest?

In case of NRI investments on non-repatriation basis may be paid in the following manners:

1. Directly through inward remittance from abroad via paper booking;
2. Indirectly through Non-Resident External (NRE) or Foreign Currency Non-Resident (FCNR(B)) or Non-Resident Ordinary (NRO) Accounts.

The said Accounts and Deposits/Transfers have to be in strict compliance with all the applicable rules and law along with RBI Notifications and Policies. However, the opening of such accounts is very simple and very similar to the opening of a regular bank account and requires just a few documents for the KYC.

a) Non-Resident External Account

It is an exclusive type of a Bank Account, wherein, only NRIs are permitted to open and maintain a Rupee Account. Such bank accounts can be opened and maintained by banks and authorised dealers which are authorised by the RBI. They may be Savings Account, Current Account, Recurring Account or Fixed Deposit Account.

There are strict constraints on the kind of inward remittances allowed in such accounts :

1. Any transfer from NRE/FCNR Accounts;
2. All interests accrued on the account or on the investment; and
3. Any maturity proceeds from investments.

Only Local Disbursements, Transfer to other NRE/FCNR Accounts or investments in India are permitted in NRE Accounts. The account can be withdrawn for making local payments in Rupees. Interest earned on NRE accounts is exempt from Indian Income tax. Rupee loan is available against NRE Deposits.

b) Foreign Currency Non-Resident (Bank) (FCNR(B))

It is an account maintained only by NRIs in foreign exchange with the authorised dealers and banks authorised by the RBI to maintain such accounts. This account can be maintained only in the form of fixed deposits. The Income Tax Act is not applicable to the principal amount or the return on investments in such account.

The currency in such account cannot be converted into INR and has to be maintained in foreign currency only.

The Reserve Bank of India allows the FCNR account holder to avail a loan against his account for personal or business purposes. However, a loan cannot be taken for the following purposes:

• Re-lending
• Speculative purpose
• Agricultural or plantation activities
• Real estate investment

These accounts can be opened with:

• Funds from an existing FCNR account
• Foreign currency notes
• Traveller’s cheque

c) Non-Resident Ordinary (NRO)

Any person who is a resident outside India can maintain this account with an authorised dealer or bank.

Following credits can be made in an NRO Account:

1. Any inward from outside India;
2. Legitimate dues in India;

3. Transfer from other NRO Accounts; and

4.Gift or Loan made by a resident in India (in Indian Currency).

Following Debits can be made in an NRO Account:

1. Local payments;
2. Transfer to other NRO Accounts;
3. Current income abroad;
4. USD 1 million in one financial year; and
5. Any other bonafide transaction.

Conclusion

To encapsulate, never was the convergence of so many factors and probabilities so ideal to make an enterprise bloom and boom. The route plan and procedures are clear cut. To actuate and make the project operational, all infrastructure of office space, selection and training of human resources at varying levels, are there for the picking. The need is to plant a seed now and nurture for a brief period with local talent and see the institutions soar. NRI’s wistful wish of connection with its nation’s umbilical cord will fructify, as also his hard earned money grow phenomenally and safely.

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 How can NRIs Invest in LLPs In India? appeared first on iPleaders.

This article is written by Shreya Tripathi of Banasthali Vidyapeeth, Jaipur. She has discussed the Copyright law governing remix culture with various rights given to the original creator.

Background

For Bollywood fans like my brother who almost watch movies every Sunday, it’s a part of their schedule. They worship Bollywood Hindi films. A few days back my brother was watching a movie and was saying that the 90’s films were so good as they do not copy the idea of any other movies or songs. He was disappointed by the upcoming remix songs because the remix version has removed the purity and originality of songs. He gave me a list of songs which are converted into remix version like- Tamma Tamma, Bachna Ae Haseeno, Humma etc., at that moment this situation brought a question in my mind that Why does the Copyright law not protect individuals from making copies and remix version of old songs?

What is Copyright law?

Copyright is a law which gives protection for works given to a creative person who is doing something different in the field of literature, music, dance, artistic work etc. To protect their work from being copied or used by someone else without their permission. In fact, it is a bundle of rights which include reproduction rights, translation work, adaptation and communication with the public.

Here, we are specifically talking about “Musical work” defined under Section 2(p) of Copyrights Act, 1957- “musical work” means a work consisting of music and includes any graphical notation of such work but does not include any words or any action intended to be sung, spoken or performed with music”. As per Copyright Act under Section 14 of the Act “Copyright” is defined as one of the exclusive rights given to the individual who is authorised for doing certain acts. 

In case of Musical, literary or dramatic work, not being computer program:

1. To reproduce the work in a material manner which includes storing of it in any electronic medium.
2. To issue copies of work for the public and it should not be circulated already.
3. To communicate and perform the work in public.
4. To create any cinematography work or sound recording.
5. To make any kind of translation.
6. To make any kind of alteration or adaptation in the work.

In case of Computer Program:

To perform any of the acts mentioned above or to sell or give it on the rental way the copies or any part of it to use it in commercial purpose.

In case of Artistic Work:

1. To make any kind of adaptation or modification in the work.
2. To reproduce the work in any material form which includes 3 dimensional or 2 dimensional work.
3. To communicate with the public regarding the work.
4. To convert the work into cinematography work.
5. To issue the work to copies for the public.

In the case of Cinematography film:

1. To make a copy of the film including images or pictures in it for making a new part in that movie.
2. To communicate or share the film with the public.
3. To sell or give a copy of the film or whether such copy has sold earlier.

In the case of Sound Recording:

1. To create any other sound recording in relation to that.
2. To sell or give on hire copies of sound recording.
3. To communicate it with the public.

After the prior amendment by the Bombay High Court “Remix” and “Cover” are considered under the category of “Version Recording”.

What is Remix?

When sound recording is done of some additional elements added with some different music or beats then it becomes remix of the original song. Then the work created by remix will be considered new work or modifications to the old version? Even though the new work is somewhat different from the original work, the author is required to obtain a licence from the owner of the original work. There is no specific provision or process is given under the Copyright Act for obtaining a licence for remix work as it is given for Cover version work.

A recent example related to the making of a remix version is very popular song Sambalpuri song Rangabati which was telecasted on Coke Studio some days back. It became a great hit version on Youtube and the original version of Rangabati was made in English and Tamil version including the State anthem of Orissa in the song. The original singer and the music director have alleged for infringement of copyright and claimed compensation for Rs. 1 crore with a legal notice attached to it, that if he fails to pay the claimed amount then legal action will be initiated.

Is it Illegal to Remix?

If remix is done without taking prior consent from the original owner will lead to illegal remix. So, to make it lawful a legal checklist should be made.

1. Purchase a copy of songs because pirated music will fall under illegal manner.
2. Prior permission should be obtained from the owner of the copyright.
3. Maintain all the records of permission related to copyright.

And people who want to just mix some of the music for their personal use no need to go for this lengthy process, unless their money is involved.

Copyright of Cover version in India   

Amendment done in 2012 brings up and down changes in the rights of  Musician, Performer or Lyricist etc. Section 31C of the Act provide Statutory licence that can be obtained for creating Cover Version. Statutory licence is governed by the provisions of the Act and general licence consists of terms and conditions agreed upon the licensee or licensor.

Major highlights of the provision

1. A new cover version cannot be created until the expiration period of 5 years get over of the original recording.
2. It has to be in the same manner as the original one.
3. Prior consent of the owner should be taken for making cover version.
4. Cover or labels of the songs should be disclosed to the owner in advance before the release of the song.
5. Copyright board should the fixed amount for paying a royalty.
6. The creator of cover version should mention about the original sound.
7. No alteration should be made unless it is required necessarily.
8. A Book of Account should be maintained by the author of the cover version owner which can be inspected by the real owner of the original work.

If such cover version is made without taking prior permission or license from the owner of the original sound recording then it will amount to infringement. The owner can file a suit against the creator of cover version for infringing his moral rights as the person modified or altered his original work without any permission.

Differentiate between Remix and Cover

Is Copyright law the same for all types of work?

The answer is no, as it differs from work to work. In the case of literary work except for a computer programme, it is an exclusive right define under Section 14 of the Copyright Act.

1. For the reproduction of work.
2. To perform the work at a public place.
3. For making any kind of translation regarding the work.
4. To issue copies of work.
5. To make an adaptation of the work.

What are the rights given in relation to musical work?

Refer to the above-mentioned point to know about the right given in relation to musical work.

Who is the Copyright Owner of Musical work?

The actual owner in Musical work is the Producer, not the Singer. According to Section 2(d)(ii), the author is “Composer” of the musical work.

Different kinds of Rights in Musical Work

As the owner of a copyright has the exclusive right and these include certain other rights also like to reproduce the work, to distribute copies of copyright work to the public, to work or perform in public by means of digital audio transmission, to make derivative work based on the work and in the case of sound recording.

Copyright gives you the right to record music, sell, to distribute its copies in various ways like CD, digital download etc., create something new and innovative from your previous original work as post your music on youtube, online on you timeline keep them on the trending path, give live performances at various occasion or event in different places or cities. It does not only allow to create more ideas but on the other hand, it also restricts from misusing the original work of the real owner of the creation.

What is Reproduction right?

It is one of the important rights given to owners of any creation. Reproduction right means the only owner has right to make copies of work and for doing an infringement if a substantial part of the work is also copied then it will fall under infringement it is known compulsory to copy the work part of the work. For example– Making copies of a sound recording or musical work in CD, computer file, included in a movie etc.

What is Mechanical Right?

It is required when you need to reproduce or distribute your musical work. This right is mostly used by the record company and the amount is paid by the record company as per unit and it will be paid to publisher or publisher.

What is Synchronization Right?

In synchronization, the performance is merged with the visual image on sound recording in a specific manner. It is important in the use of songs and on TV shows, movies and other media related to it.

What is Derivative Right?

Under derivative right, you can use the original work to make alterations in it. For example, taking a song and merging or adding some new lyrics to it and some different elements to make it a better version of it.

What is Display Right?

Display right provides a right to present or display your work in or to the public.

What is Adaptation Right?

It is used when someone rewrites your song and plays it with different instruments or by including a small new part to it. The Copyright Act defines the following:

1. Conversion of dramatic play into no dramatic work.
2. Re-arrangement of a literacy work.
3. Conversion of literary work into drama.
4. Depicting any comic form or through pictures or dramatic.

What is Performer Right?

Any artist who performs their work have Performer Right and “Performer” includes juggler, singer, dancer, musician, actor etc. Section 38 tells about the Right of performers and Section 38 A lays down legal provisions related to it which give exclusive rights for doing any act in respect to performance. It can be categorized into 3 parts.

1. Live performance– when he performs his or her work in the audience then he has right over that particular performance.
2. Performance in cinematography with credit– when the performer gives his right in a written agreement to use his work for a commercial purpose, performers should be entitled to receive some royalty or some monetary gain.
3. Performance in cinematography without credit– there are many performances is supporting cast which is basically known as extras” in any film or play etc. till now copyright act does not give any kind of protection to this kind of people except Moral Right.

Section 39A confer moral right to the performers to claim the author of the work and the right of integrity to work.

What is “Commercial Utilisation” of a performance?

It includes Playing of sound recording and live performance also. All commercial performance included- playing music in restaurant, hospital, radio, television, cinema etc. even the organiser of sports events like IPL where music is played for entertainment purposes must pay royalty or licence fee amount to the owner. But when it is used to teaching, personal or research purpose the right is not infringed.

Playing remix version in Club?

An individual has permission to create a new remix version from the copyright holder but they cannot play remix version in the club without granting permission for performance right, it will be considered an illegal act. In a club, DJ will not be liable to pay the amount of royalty, it will be paid by bar or club owner. If the remix music is used with the actual performance will be covered under fair use, but the more you profit without granting prior permission the more you break the laws.

The owner of the musical work is the composer, not the singer who sang the song. Gramophone Company of India vs. Super. In this case, the Delhi High Court observed that musical work is not a combination of melody or tuning work but every composition has its structure, shape to prepare the whole notation for music. And under Copyright Act Section 14 (e) provides certain rights to the owner for protecting their work which includes the right to sell or hire, any copy of the sound recording and right to communicate with the public.

Moral right under the Copyright Act

When Section 52(1) is applicable and still some kind of mutilation or alteration took place in the original work which will hamper the work and reputation of the owner then he can complain under Section 57 of the Act. Basically, the purpose of moral right is to encourage the production of creative work in Intellectual Property.

Mannu Bhandari vs. Kala Vikas Picture, recognised that existence or moral right is important for the author. Amar Nath Sehgal vs. UOI, it was said that moral right is the soul of author work and he has the right to protect and preserve his work irrespective of being copied wholly or partially under Copyright Act.

Protection of Remix maker under the Copyright Act

Nowadays people are so confused about what is allowed and what is not. So, to clear this confusion there is need to have exception of the Copyright Act under Section 52(1) according to which a person can copy musical work, artistic work or any other work will not fall under infringement because has given a prior notice of his intention and paid advanced royalty to the owner of the original work. The people who want to make the remix version cannot make any modification in the original work without taking prior permission from the owner. The new version of sound should not be marketed otherwise it will lead to confusion for the public about the identity of the original owner and the making of remix should not be done before the expiration of 2 years in which the original sound was made.

The owner has every right to inspect all the Books of Account related to remix work. If a problem arises related to payment of royalty then the complaint will be made by the owner and the copyright board deal with the complaint and after getting sure about the complaint order will pass to stop making further copies and inquiry will be conducted and action will be taken as required.

Taking the consent of the original maker is very important. In the case of Ganpati Aarti Ashtvinayak Geete, the defendant wanted to make an audio cassettes in regard to Ganpati Aarti for that he asked for the original sound recording from plaintiff and offered a licence fee but plaintiff rejected the offer with impliedly mean that permission was not granted on behalf of plaintiff but still defendant brought the sound recording for making the cassettes which were totally the act of infringement.

So, working without the permission of the original owner will lead to infringement. But in Gramophone Company vs. Mars Recording, case the court held that if condition given under Section 52(1) is followed will not be called as infringement and no requirement for granting any kind of consent or licence.

In Super Cassette Industries  Ltd vs. Bathla Cassette Industries Pvt Ltd, it was said that no change should be done in the voice of the singer because the voice is the soul of every song and it is a vital part of the song without taking consent from the original owner.

Amendments to be made

• The time duration of using the original sound recording for creating a remix version should be extended from 2 years to 5 years.
• A fix and reasonable rate should be made for paying a royalty to the owner.
• Need to introduce the statutory licence system so the general public has access to musical work through Television or Radio and make sure the owner does not face any type of loss.
• Right to receive royalty should be protected and if exploitation of the work happen commercially then it will be credited to the amount of royalty to the owner.

Conclusion

So, it is very essential to take prior permission from the owner of the original sound recording for making Remix version and the remix version owner should always give special credit to the original sound owner for the permission of making a remix of it. More rigid rules should be made to protect the work and the rights of the original owner otherwise it will not motivate them to create something new and different for public and people should also understand the consequences of their act.

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

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

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

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

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

Dispute resolution team of a law firm

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

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

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

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

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

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

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

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

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

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

In-house litigation teams in companies

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

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

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

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

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

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

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

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

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

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

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

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

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

This article has been written by Nishtha Jain, a fourth year student from Symbiosis Law School, Noida. She has briefly discussed the meaning of mergers and acquisitions along with different types of mergers. Further, she has elaborated on the motives behind the companies opting for mergers and acquisitions.

Rationale behind mergers and acquisitions

Breaking all records, India has entered the $100 billion club in the mergers and acquisitions (M&A) space in 2018. In the corporate world, there are frequent bouts of ‘merger mania’ where the level of M&A activity is very high. This trend has now again resurfaced; for instance Facebook took over WhatsApp and Instagram, Walmart-Flipkart deal, etc. For good or bad, we are yet to figure that out but what is assured is that M&A is considered as one of the basic subjects which every law aspirant should be fully aware of, especially those who are dreaming of making it big in the corporate world.

Due to increasing interest amongst the global business community to get a share of huge consumer base in India, India’s M&A outlook looks promising – Pankaj Chopda, Director at Grant Thornton India LLP. Getting access to a larger consumer base could be one of the reasons why a firm would opt for an M&A deal. Let’s identify what could be the other reasons.

Introduction

M&A are usually used interchangeably, however there is a slight difference between them which makes them distinct from each other. They are based on the company’s vision and mission statements. A proper course of action and procedure is followed to undertake M&A governed by various legislations such as Companies Act, 2013, Income Tax Act, 1961, etc.

What are Mergers and Amalgamations?

In simple terms, merger is defined as a combination of two or more companies into one. They are usually considered as a means to a long-term business strategy. ‘Merger’ as a term is not explicitly defined in neither Companies Act, 2013 nor Income Tax Act, 1961. However, the Income Tax Act defines an analogous term – ‘amalgamation‘. Amalgamation refers to the merger of one or more entity with another entity, or merger of two or more entities to form one entity.

Mergers and amalgamations are of various types depending upon the needs of the merging entities. One of the ways in which a merger can take place is in a situation wherein the assets and liabilities of a company gets merged or transferred or vested in another company. The shareholders of the merging company become shareholders of the merged company and the merging company loses its identity. Another way is when the assets and liabilities of two or more companies become vested in another new company. The merging companies lose their identities and the shareholders of the merging companies become shareholders of the new company.

Situation 1: A (merging company) + B = B (merged company)

Situation 2: A (merging company) + B (merging company) + C (merging company) = D (merged new company)

What are Acquisitions?

In simple terms, acquisition refers to purchase of the shares or assets and/or liabilities  of a company (target) using the stock, cash or other securities of purchaser’s company (acquirer). Acquisition is also known as takeover. It may be hostile or friendly.

Illustration – Company A (acquirer) takes over the majority shares of Company B (target). Both the companies continue to be in existence.

What is the difference between Mergers and Acquisitions?

What are the types of mergers?

• Horizontal Mergers

This kind of merger takes place between companies engaged in competing businesses which are at the same stage of industrial process. Illustration – Two companies involved in the manufacture of two similar kinds of cars, one company may decide to merge with the other company so that both types of cars can be sold in the market without any competition. Examples –  Myntra and Jabong merger, Flipkart and Myntra merger, etc.

• Vertical Mergers

This kind of merger takes place between companies engaged at different stages of the industrial process or production process. Illustration – To manufacture a car, tires are required. A big automobile company may merge with a company involved in manufacturing of tyres. One of the examples is the merger between eBay and PayPal.

• Congeneric Mergers

Merger between companies engaged in the same general industry without any common customer – supplier relationship.  A company uses this type of merger in order to use the resulting ability to use the same sales and distribution channels to reach the customers of both businesses. Example – Citigroup’s acquisition of Travelers Insurance.

• Conglomerate Mergers

A merger between companies that are engaged in totally unrelated business activities. The principal reason for a conglomerate merger is utilization of financial resources, enlargement of debt capacity, and increase in the value of outstanding shares by increased leverage and earnings per share, and by lowering the average cost of capital. Example – Walt Disney Company and the American Broadcasting Company merger.

• Cash Mergers (also known as Cash-out Merger or Freeze-out Merger)

The shareholders of one company receives cash instead of shares in the merged company. This is essentially an exit for the cashed out shareholders.

• Triangular Mergers

It is a tripartite arrangement in which the target merges with a subsidiary of the acquirer company. It is often resorted to, for regulatory and tax reasons. There are two types of triangular mergers –

1. Forward triangular merger – when the subsidiary survives, even after the merging of the target into the subsidiary.
2. Reverse triangular merger – when the target survives after the merging of subsidiary into the target.

Why do companies engage in M&A?

• Gain scale and/or scope

A good M&A strategy focused on gaining economies of scale or economies of scope in turn helps in the growth of the company by leaps and bounds. Various benefits are –

1. Helps companies eliminate certain execution risks if they are looking forward to a mass scale. M&A helps the company to grow in size along with strengthening management and financial condition of the companies.
2. Companies get access to new markets, new customers, new products, new services and/or new geographic regions.
3. May also help the companies gain a stronger foothold in the industry.

• Growth

Generally it is observed that once a company matures or in competitive markets, it gets difficult for the company to achieve higher growth rates. In such situations, M&A helps the company to increase their growth rate through a variety of factors such as

1. Acquiring new products of the target company
2. Accessing new markets
3. Capturing additional market share
4. Accessing new customer base

• Synergies

The term synergy can be thought of as leveraging the combined strengths of two companies such that when two companies come together, their sum capabilities are more than their individual capabilities. Synergy is the most common reason why companies indulge in M&A. There are two forms of synergies –

1. Operating Synergies

These synergies come from the combination or consolidation of two companies’ operations. Example –

a. Revenue Synergies – these come from various places such as cross selling one company’s products with another company’s customer base, etc.

b. Operating Expenses – there are many opportunities to reduce operating expenses in M&A. For example, no need for both the companies to have separate auditors, separate investor relations departments, etc.

2. Financial Synergies

These are thought of as enhancing the company’s financial structure, improve its ability to obtain financing on favorable terms, attracts investors, greater access to capital markets, etc.

• Diversification

It is an act of an existing company branching out into a new business opportunity which it does not already operate in. Many companies opt for M&A to diversify their business. Through M&A, a company gets easy access to another company’s products, customer base, etc. Company can add on new products or take over the existing products of the merging company and create profit.

• Enhance research, development and management efficiency

Many companies opt for M&A to enhance research and development. The most common example is of acquisitions done by pharmaceutical companies and technology industries to acquire newer technologies in order to produce better products for the consumers.

• Integrate

M&A takes place to integrate a company throughout its value chain. In simple words, a company may purchase or merge with a target company in order to capture a greater share of the overall dollar spent in a category. Integration may be done for capacity building, technology sharing, increasing market share and competitiveness, etc. There are two methods through which integration can take place-

1. Vertical integration: Acquiring a company that operates in the production process of the same industry. Example – eBay and PayPal
2. Horizontal integration: Acquiring a similar company in the same industry. Example – Facebook’s acquisition of Instagram

• Personal reasons such as greed, vanity and fear

Some M&A takes place due to sheer greed or vanity or fear of some key personnel managers in the company. There is ill motive behind this kind of M&A deal.

• Tax issues

A company with a large taxable income may look to merge with a company which has large carry-forward tax losses. By opting for such a deal, the acquiring company can lower its tax liabilities. However, such a merger will not be approved by regulators unless the company succeeds in hiding this reason with other strong motivations to merge.

• Other motives

Above mentioned motives are some of the common reasons why companies go for M&A. Some other motives may be –

1. National champions – Companies within one nation such as European Union may wish to merge in order to become a national champion providing a particular kind of product or service. Government may approve of it as this will create larger domestic companies capable of competing in international markets.
2. Internationalization/International Goals – Cross border mergers may be done in order to enhance customer base, diversify, wider outreach, etc.
3. Unique capabilities – A company may acquire a target company to get access to the competencies and resources in which it (acquiring company) lacks.

NOTE – It is pertinent to remember that the above mentioned are the common reasons behind M&A. M&A takes place for a variety of reasons depending upon the needs of the parties to the deal. Most of the reasons why companies decide to merge are beneficial, or at least not harmful to the economy.

The above discussed is described in brief as follows –

Conclusion

It can be thus observed that there are various reasons for a company to go for a M&A deal. There may be one reason or multiple reasons combined behind a M&A. It is important to figure out the possible outcomes, both positive and negative before entering into M&A as, if not properly examined and evaluated, it may lead to huge losses, waste of time and resources.

References

1. Richard Whish & David Bailey, Competition Law (8th ed. 2015).
2. Peter A. Hunt, Structuring mergers & acquisitions: A Guide to Creating Shareholder Value (2nd ed. 2007).

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This article is written by Shreya Tripathi of Banasthali Vidyapith, Jaipur. The article explains the Relation between Fundamental Rights and Directive Principles of State Policy with various famous case laws under the Constitution of India.

Introduction

The constitution of India is considered as the longest written constitution of any sovereign nation in the world. At its birth, it had 395 articles in 22 parts and 8 Schedules and it currently has a Preamble, 25 Parts with 12 schedules, 5 appendices, 101 amendment and 448 articles. January 26 is celebrated as the Republic Day every year. The importance of the Constitution was given effect after 67 years and later on, it was amended 101 times also.

What are Fundamental Rights and DPSP?

Fundamental rights and DPSP as cherished in the Constitution of India together comprises the human rights of an individual. The Constitution expresses fundamental rights as an idea which appeared in India in 1928 itself. The Motilal Committee Report of 1928 clearly shows inalienable rights derived from the Bill of Rights enshrined in the American Constitution to be given to the individual. These rights were preserved in Part III of the Indian Constitution. of India.

Fundamental rights are also known as Inherent rights because they are inherent to every person by birth. These are the rights which provide an individual with some basic rights for the purpose of survival. No discrimination is made on the basis of religion, caste, race etc. and if any person feels so that his fundamental rights are being infringed then he can surely approach to court for the violation of his rights.

There are six fundamental right mentioned under the Constitution of India

• Right to equality
• Right to freedom
• Right to freedom of religion
• Right against exploitation
• Cultural and educational rights
• Rights to constitutional remedies

Right to Equality

Freedom Law is supreme in nature and everyone is equal before the law and equal treatment should be given to everyone. No discrimination should be done on the basis of race, caste, creed or gender. An equal amount of opportunity should be given to every individual in the field of employment. Abolition of untouchability and titles.

Right to Freedom

Every individual has the right to freedom to form an association, peacefully assemble, to travel or move freely reside and settle at any location and to go or opt for any profession throughout the territory of India. Right to education, life, liberty and dignity also fall under this right, protection in respect of arrest and detention and conviction of an offence.

Right against Exploitation

Prohibition of Child labour and Human trafficking and forced labour is a result of this right.

Right to Freedom of religion

This right provides us with the freedom to follow any religion without any question mark and freedom to attend any religious ceremony at a religious institution or education centre and pay tax for the promotion of religion. Nobody can force any individual who is not interested in paying any kind of tax for religious purposes.

Cultural and educational Right

It provides protection to different languages and varieties of culture present in India. It also protects the rights and culture of minorities. Establishing educational institutions and primary education to every child below the age of 14 years comes under this head.

Rights to seek Constitutional remedies

An individual has the right to move in any court of law if they feel fundamental rights are being violated. Our constitution consists of 5 writs. Here writs mean the “Order of court”. If only fundamental rights are violated then the individual can directly approach to Supreme Court of India. The writs are explained below:

1. Habeas corpus
2. Mandamus
3. Prohibition
4. Certiorari
5. Quo warranto

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Habeas Corpus

It simply means to ‘Produce the body’. This writ is issued to produce a person who has been detained and to present him before the court to release if such detention is illegal.

Mandamus

This means ‘We Command’. It is an order given by the Superior Court to the Inferior Court to perform a public duty.

Prohibition

It is basically known as Stay order which prohibits from doing certain actions by the authority where it has no jurisdiction to deal with the case.

Certiorari

This means ‘to be Certified’. This order can be issued by the Supreme Court for quashing the order which is already passed by any inferior court, tribunal or authority.

Quo – warranto

It signifies by what authority? It is a writ issued to restrain a person from holding a public office to which he is not entitled.

The concept of DPSP emerged from Article 45 of the Irish Constitution. DPSP imposes a duty upon the state not only to protect and acknowledge the Fundamental right of the individual but also to achieve Social-economic goals. DPSP was summarizing in Part IV of the Indian Constitution of India.

Certain guidelines are present for the state authority to work upon them for the protection of society. It mostly focuses on welfare and improvement of society altogether. As fundamental rights are enforceable in a court of law, DPSP cannot be enforced for making any rules, policy or guidelines.

Some of the examples of DPSP are:

1. Right to education
2. Maternity benefit
3. Uniform Civil code
4. Providing proper nutrition food
5. Providing adequate means of livelihood

However, it is already a controversial topic in the Constitution about the relationship of Fundamental rights and DPSP, as there would be conflict in the interest of individual at a micro level and benefit of the community at a macro level.

The central part of this controversy is the question person should have primacy in the case of conflict between Chapter III and IV of the Constitution of India.

Relationship between Fundamental Rights and DPSP

Constitution of India is a Grundnorm all the law which are made must conform to the constitution of India.

The difference between DPSP and FR are:

For better understanding about the conflict between DPSP and Fundamental Rights lets study some of the important case laws and then we can decide what happens when a conflict arises between both of them.

The first case we are going to study is about Golak Nath vs the State of Punjab, A.I.R. 1976 SCR (2) 762. Firstly, we will see what the Supreme Court has said and then we will discuss what the parliamentary action was taken. In this case, S.C. said Fundamental rights cannot be diluted, abridged, diminished, finish or taken away and then in response to it by bringing Amendment Act of the Constitution and inserted Article 31 (C) in part III now what does Article 31 (C) say:

By making a law under Article 39 (B) which talk about material resources of community and Article 39 (C) discuss the operation for an economic system. They say that if any law is framed with effect to DPSP and if it violates Article 14, 19 and 21 then the law should not declare constitution as void merely on this ground.

In Champak Dorairajan vs. the State of Madras, the Supreme Court held that DPSP cannot override the provisions of Part III of the Constitution of India i.e. the Fundamental Rights. Now DPSP has to run subsidiary to the Fundamental rights and have to confirm them and this was very important judgement the parliament responded by amending various fundamental rights which were coming in conflict with DPSP.

So, now we will move to our next Case Kerala Education Bill where the Doctrine of Harmonious Construction was introduced by the Supreme Court.

Now, what is the Doctrine of Harmonious Construction? It says that you need to constitute the provision of the constitution in such a way that fundamental rights and DPSP go hand in hand so this was there to avoid the situation of conflict while enforcing DPSP and Fundamental rights. So you should construe each and every provision of the constitution is such a way so they work harmoniously.

Now as per this doctrine the court held that if no inherent power is present then no conflict will arise but if any conflict comes in force just because the court is trying to interpret a particular law so they should attempt to give effect to both as far as possible.

So to connect them together by doing something without doing any kind of amendment. After all the efforts to make everything look balanced if any interpretation is done then the court has to implement Fundamental rights over DPSP.

In the case of Kesavananda Bharathi, 1973 Supreme Court held that Parliament can amend any part of the Constitution but without destroying the basic structure of the constitution. Now, the second clause of Article 31 (C), as we have read earlier, was declared unconstitutional and void because that was against the basic structure. However, the first clause of Article 31 (C) was said to be valid. In response, the parliament brought the 42nd Amendment Act, 1976 and extended the scope of the above provisions of Article 31 (C).

Now in the case of Pathumma vs. the State of Kerala, 1978, the Supreme Court emphasised on the purpose of DPSP that is to fix some social- economic goals. The constitution aims at bringing about a combination between DPSP and Fundamental rights which is reflected in several other cases as well.

In Minerva Mills Case, the Court held that the law under Article 31 (C) would be protected only if it is made to implement the directive in Article 39 (b) and (c) and not in any other DPSP. Earlier protection was given to all the DPSP but after this case, it becomes restrictions and was declared that if protection is given to all DPSP it will be declared as void and unconstitutional in nature.

In State of Kerala vs. N.M.Thomas, 1976, the Supreme Court said that Fundamental rights and DPSP should be built in such a way to be with each other and every effort should be taken by the court to resolve the dispute between them.

In Olga Tellis vs. Bombay Municipal Corporation, 1985, the Supreme Court has submitted that DPSP are fundamental in the governance of the country so equal importance should be given to meaning and concept of fundamental rights

In Dalmia Cement vs. Union of India, the Supreme Court said that Fundamental rights and DPSP are supplementary and complementary to each other and the preamble to the constitution which gives an introduction, fundamental rights, DPSP are conscience of the Constitution.

In Ashok Kumar Thakur Vs. Union of India, 2008, the Supreme Court said that no difference can be made between the 2 sets of rights. Fundamental rights deal with Civil and political rights whereas DPSP deals with social and economic rights. DPSP are not enforceable in a court of law doesn’t mean it is subordinate.

So basically, in all these cases, what they are trying to explain is that Fundamental rights and DPSP go together. Neither of them is supreme to each other.

Government has done several acts for the implementation purpose like panchayat were established by 73rd amendment, Nagar Palika under Article 41, compulsory education to every child who is below the age of 14 years and it was made Fundamental rights, to protect monuments of national importance now this right was converted into a law that is Ancient and Historical Monuments and Archaeological sites and remains (Declaration of National Importance) Act, 1951.

Conclusion

It can be concluded by saying that the basic feature of the constitution is to maintain harmony between fundamental rights and DPSP. They are complementary and supplementary to each other. The theme of fundamental rights must be made in light to DPSP.

Reference

Mayank Shekhar, Relationship between Fundamental Rights and Directive Principles of State Policies, Legal bite – Law and beyond (September 16, 2019).

The post The Relation Between the Directive Principles of State Policy and Fundamental Rights appeared first on iPleaders.

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

From a lawyer’s perspective, if you have the skills, there is no dearth of money in civil litigation. You often deal with large debts, valuable properties, large compensation claims, easements and other important legal rights of people, because people rarely take the trouble of filing civil cases for small issues in India given the high cost and long litigation period.

Companies have expanding litigation budgets too. The larger the company, its operations and customers, the larger the likelihood of its facing claims across the country as well as the need to enforce its legal rights across different forums. This translates into large legal bills too.

For litigators, the challenge is rarely that you can’t find paying clients, but that it’s hard to learn the work and establish yourself as a credible option for such high-value matters. Can clients trust you with a matter that will decide the fate of crores of rupees or a very important license at stake? If one does not get work that is only because they fail to generate trust and build credibility.

You need to be able to deliver results to clients in order to succeed in litigation.

With this challenge in mind, we created a course on civil litigation to teach the practice, procedure and drafting. Our goal is to teach in 6 months what litigators take about 2-3 years to learn otherwise, mostly through painful trial and error. With that objective, we began to speak with a lot of lawyers who succeeded in the trade. We asked them about the challenges, travails and what skills helped them most.

At the time of market research, everyone we spoke to came up with the answer that civil litigation is very vast, and that it cannot be taught, and that it can only be learnt over the course of many years’ practice, failure, struggle, trial and error. Even then, you would only learn the aspects you practised in and there will be other things you will still not know.

However, we were willing to challenge the status quo, because we believe that there are always better ways to do things waiting to be discovered. We understood that the problem is very challenging, and we put in solid 2 years to create something that delivers results.

The first step of that was identifying the skills that need to be learnt by civil litigators to build a sustainable, growing and successful practice.

We strongly recommend that you go through the list below and identify which skills you possess and which skills you don’t. Be specific, do not skim through the list in a generic sort of way.

If there are one or more skills you are not confident about, do not hesitate to admit that to yourself. The hallmark of a true master is that he or she identifies what skills are missing very efficiently.

We know you have a dream. There is a skill gap between what you want to achieve and where you currently stand. You can succeed when you close that gap by developing those missing skills.  

How large is that gap? We wrote this article to help you to identify.

Once you identify which skills you do not currently possess at the desired level of proficiency, consider the scope of the opportunity that is available. What is possible for your career as a lawyer if you acquire and develop those skills? How will that impact your clients? How will that impact your reputation? Where can that mastery take you in a few years of time?

Remember that knowing 85% and not knowing the remaining 15% might mean a difference of at least tens of lakhs in income, if not more.      

So, let’s begin! We have identified a total list of 47 skills and bucketed them into broad categories for ease of your understanding.

Skills related to the drafting of legal notices and sending replies to legal notices

While drafting legal notices and replying to them may occur as a very simple task, many suits get dismissed on the ground that they are premature, not served in accordance with the terms of the contract for service of notices, or that they do not disclose an adequate cause of action or that an effective intimation to the defendant of the dispute and an opportunity to resolve was not provided.

Further, legal notices need to be customized based on the situation your client is facing. For example, a cease and desist notice (under trademark law) is different from notice to initiate proceedings at consumer forums, or a notice to pay outstanding dues under Insolvency and Bankruptcy Code (IBC), or notice sent prior to the commencement of arbitration proceedings.

There are multiple nuances you will need to keep in mind in this regard. In fact, drafting an appropriate legal notice can lead to the matter being settled out of court even before taking a single step to initiate a proceeding.

While several lawyers might think this is a bad idea because you may lose a client quickly, drafting effective legal notices and responses to the same may actually be the secret to charging a premium, providing a superior (but cost-effective) service and building goodwill.

We teach a very unique and effective method to draft legal notices, which yields results much faster, and which was tested and fine-tuned through the studying of hundreds of effective and ineffective legal notices.

Similarly, your response to a legal notice must be powerful and effective. Learning to draft responses to legal notices are critical. At the stage of receipt of a notice, it is not a certainty that legal proceedings will be initiated against your client. An effective response can mitigate the risk and even lead your client to a favourable outcome, without the initiation of legal proceedings.

Thus, the two broad skills to develop and fine-tune here are:

1. How to draft different kinds of legal notices  
2. How to draft effective replies to legal notices

Skills related to drafting and filing of plaints

Drafting and filing of plaints may appear to be a simple process, but there are multiple skills that you need to develop to initiate and lead the litigation effectively, which are listed below.

Merely filing a plaint is not sufficient – it will need to have a strong basis. Your drafting skills need be developed. You need to identify the appropriate facts and ask for the correct prayers.

Having a strong foundation will set you up for victory. After drafting of the plaint, you will need to learn about other technicalities related to the filing process, rectification of defects, etc.

The top skills in this regard are:

1. How to draft plaints seeking different kinds of reliefs
2. How to identify jurisdiction, calculate court fees and value a suit
3. How to identify and draft appropriate prayers in your plaint
4. How to calculate damages, costs and interest and claim monetary reliefs in the prayer
5. How and when to claim perpetual injunctions and specific performance in the prayer as per Specific Relief Act principles
6. Learn about tagging and nomenclature of various petitions etc. by the courts
7. Understand the listing of matters, cause lists, case status, daily order sheets and how to deal with court clerk, readers, ahlmads, etc.
8. Learn about common drafting and filing related errors and defects and how to avoid them.
9. How to ensure your plaint is not rejected or dismissed on grounds of misjoinder or non-joinder of parties, erroneous identification of jurisdiction, incorrect valuation or payment of court fee, or expiry of limitation

Skills related to obtaining a temporary injunction

Every plaint is usually accompanied with an application for temporary relief. In fact, most parties claim ex-parte interim relief, which may or may not be granted by the courts, depending on the likelihood of loss and strength of the case.

Selection and identification of the appropriate temporary relief is very important, and it really depends on the requirements of the case – most lawyers do not have enough practice with identification of appropriate reliefs.

Every application for temporary relief is assessed on the basis of pre-established principles of the prima facie case, the balance of convenience and irreparable harm. Even where lawyers know about this, the challenge is in framing a persuasive argument as to how the facts satisfy the above principles. Merely pleading that the above principles are satisfied with a weak connection to the facts is the number one reason for not securing a favourable temporary injunction order.

Similarly, if you anticipate litigation and want to minimize the risk of it, you may want to file caveats in multiple courts, so that you no ex parte orders are passed against you. However, a caveat leads to the other party being informed that you have filed a caveat. That may lead to the precipitation of litigation, even when the other side was not planning to initiate one.

Therefore, if you merely want to keep a watch, tracking the cause lists of the relevant forums where you anticipate proceedings will be sufficient.    

The relevant skills in this regard are:

1. How to draft an application for temporary injunction and identify appropriate remedies
2. How to make a persuasive case for ex-parte relief
3. How to ensure no ex-parte relief is granted against you (by filing caveats)

Skills related to drafting a written statement

After a plaint is filed, you need to prepare an effective response. There are rules which need to be followed in this regard. Most people learn the rules but are unable to apply them correctly.

Lawyers understand what a para-wise response is, but are unable to do it consistently. That mistake can amount to an implied admission by the party. Can you imagine the cost of such a mistake for their client, and to their own careers?

Similarly, which are the most effective preliminary objections you can take up to have the plaint be dismissed?

Also, amendment of pleadings may be necessary from time to time. The development of this skill is not by referring to the provisions of the Civil Procedure Code for amend pleadings, but the actual drafting of the applications required to effectively amend your plaint or written statement.

Thus, the top skills in this regard are:

1. How to draft an effective written statement
2. Using common preliminary objections to get a plaint dismissed without consideration on merits
3. How to draft a claim for set off and counter-claims
4. How to amend pleadings

Skills related to the filing of other applications

Apart from drafting and filing of legal notices, plaint, written statements and applications for temporary injunctions, there are numerous applications which you will be required to file over the course of the proceedings. These applications are either filed for technical reasons (e.g. for addition of parties, for submission of secondary evidence) or for appointment of receivers or commissioners by the court.

The key skills to learn in this regard are:

1. How and when to draft application for appointment of commissioner for various reasons
2. How and when to draft an application for appointment of receiver
3. How to draft an application under Order 7 Rule 11 for rejection of the plaint
4. How to draft an application for adding or removal of a party to the suit under Order 1 Rule 10 of CPC
5. Calculating limitation for various suits and application and getting condonation of delay when permissible and how to apply for it

Skills related to court process, trial and evidence

Indian court procedures are complex, and learning how to conduct the trial effectively is important for success. Usually, lawyers acquire an experience of the trial process in a very piecemeal manner, as they are dealing with multiple cases at a time which are in different phases of the trial.

If you know the full set of the skills required to be developed, you can develop them all, much faster.      

Not having a strong grasp of even a single skill can mean the difference between a win and a loss.

What distinguishes a rookie from a successful lawyer is his or her grasp over all these skills, and the ability to select and use which of the skills to apply at the appropriate time.  

The top skills worth developing in this regard are as follows:

1. Methods for service of court process and process fee
2. How to draft an application for appointment as a representative in a representative suit
3. When and how to draft an application for setting aside an ex-parte decree
4. How to proceed with the case when a party or witness does not appear in court, including attachment of property and civil arrest of such a person
5. How to submit primary, secondary and digital evidence in court to establish the facts
6. How to prove a document in court
7. How to conduct examination-in-chief
8. How to conduct cross-examination
9. How to build a narrative from the facts and evidence for the final arguments

Skills related to filing review, revision and appeals petitions

When should you opt for an appeal and when should you opt for a revision? When should you go for a review? When you are dealing with interlocutory orders and decrees, selection of the right method of challenge of the court’s orders becomes important.

Similarly, when you are dealing with appeals, identification of how you should make a persuasive case for a second appeal is incredibly important. While at the High Court level you may have the chance to obtain a favourable order, the grounds for admissibility of a second appeal (to High Court) are narrower.

These are also the stages where litigation tends to expand and sometimes go out of hand. Clients may lose track, some may stop pursuing their litigation and others may want to settle. As a lawyer, you have a tremendous opportunity here to manage the case better, provide superior service and either forward the purpose of the client or bring it to closure.

The skills necessary to be acquired here are:

1. How to draft a petition for revision (against an interlocutory order and decree)
2. How to draft a review petition
3. How to draft an appeal against an appealable order
4. How to draft a civil appeal (first appeal and second appeal) \
5. How to file for the execution of a decree

Skills related to proceedings under related laws and formulation of litigation strategy

When a client comes to you for a civil matter, thinking in terms of civil suit for [money recovery, declaration of title, specific performance, etc.] and an application of temporary injunction will seldom meet his or her needs.

You will need to select the right methods between a wide range of competing alternatives. For example, should you initiate proceedings under the Consumer Protection Act? Should you initiate proceedings under the Negotiable Instruments Act? Can use of the Insolvency and Bankruptcy Code lead to immediate recovery?

Will a notice to pay under the Micro, Small and Medium Enterprises Act offer an advantage?

Should you first obtain some strategically advantageous information under the Right to Information Act and then initiate proceedings to make your case substantially stronger?

Which will be the most difficult forum for the client to defend his or her case in?

What are the pros and cons of different strategies and what is the most advantageous strategy here?

These questions can lead to significant pre-litigation advisory work and a lot of trust building for your client. Answering these questions and selection of the appropriate range and sequence for each case is also crucial in the creation of a powerful litigation strategy.

The top skills in this regard are:  

1. How to initiate and defend a client with respect to proceedings under Negotiable Instruments Act
2. How to draft and file a consumer complaint
3. How to defend your client in a consumer matter
4. How to draft and file RTIs and use the RTI Act to obtain vital information for your clients’ litigation
5. How to send a notice of demand for recovery of dues under Insolvency and Bankruptcy Code
6. How to create an effective litigation strategy
7. How to price your work
8. How to deal with ethical questions
9. How to liaise effectively with senior counsel, local counsel and legal counsel in special forums to expand your legal work
10. How to arrive at a compromise between parties and obtain a decree based on such a compromise

If you are hoping to practice civil litigation, I hope you already know the majority of these skills. If you do not, you have two choices. Now that you have a list, you could try and learn them on your own. Alternatively, we could help you through our 6 months long online course with live instructor led classes. We will teach you two new skills every week.

If you think it will be too cumbersome or difficult to learn these skills on your own, then read on. Otherwise, you are done with this article.

Now, the good part is that the 2 years’ of conceptualization has helped us to nail the problem that litigators face in the initial stages of their career, leading us to build a very innovative course on civil litigation.

We did not want to build a course which is full of sections from CPC, Evidence Act, Specific Relief Act, Limitation Act, NI Act and other civil laws, accompanied by case laws (which are easily available today at your fingertips thanks to technology). This course is about getting kick-started with real legal work.

In our civil litigation course, we will be providing you opportunities to develop the above skills through the use of simulated scenarios. You will receive individual feedback on your solutions by our evaluators. You will also have weekly classrooms (and have access to recordings), and receive access to detailed study materials at one go on the online platform. A hard copy will also be provided.  

You will learn drafting and filing work from the initial stages of filing caveats and plaints, to the appeals and revision process, step-by-step litigation flow, evidence, argument creation and detailed aspects of filing and procedure.

In simple words, you can not only perform your own work but also review and suitably modify drafts, brief seniors, coordinate with local and other lawyers and supervise their work effectively.

This course is also ideal for lawyers who are experienced in other areas of law but want to understand the court process in detail, as well as law students.

If you are already practicing civil law on-ground for 4-5 years, you probably already know what we are going to teach in this course, through your sheer hard work. However, if you haven’t already gone through this extremely hard phase, this course will make your job easier, faster and enjoyable.

Moreover, the learning is based on a unique methodology of performing exercises and online classrooms with course faculty. You will also receive feedback from the faculty and evaluators on how to improve.

How do you think learning these skills can help you build you your practice? What kinds of work will you be able to perform? Which clients will you be able to approach? Will you need to find a partner/ hire a junior, or build a team to perform such work? How will that impact your earnings and reputation as a lawyer?

Think about this, and let us know your vision by writing back to us in the comment section or call us at 011-4084-5203 and let us know.

Also, here are a bunch of courses in which the admission will close on 15th of June.

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 Top 47 Skills for Smashing Success as a Civil Litigator appeared first on iPleaders.

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

For two years I studied a lot. I tried as hard as I could. I worried about it a lot. I followed all the advice people usually dish out in law school. Nothing worked. I could not score high enough to be in the top 10 of my class at NUJS.

I had some disadvantages to start with. Bad English (I studied in the vernacular medium before I joined law school). Lack of focus unless something big was at stake. I enjoyed learning about and discussing new ideas, but I hated mugging up stuff. I used to get bored easily. These things make it hard to top in class.

But I wanted to. And I had topped the law entrance so I expected that I should top the semester exams also. I am smart, so I should top.

Well, that was not happening.

For all those who just wrote CLAT, please take note. The girl who was topping in every semester in my class, often scoring perfect 7s, had a not so good rank in the entrance exam. Apparently, that does not matter once you are in the law school.

I felt horrible when I kept trying harder and my rank actually went down even more. I usually ranked between 11th and 15th.

Then I gave up. I said let it be. There must be some other way to succeed in life. If I am not able to do well academically then fine, I will find some other way to succeed.

Well, that was the smartest thing to do.

My rank kept improving after that, when I  was not any more making it the only focus of my life! Remarkably, I started scoring very high in subjects for which I just studied last minute. The best rank I ever got was 3rd rank in my class, and mostly within top 10 from my 3rd year.

How did this happen?

Firstly, I became more strategic about studying and scoring marks. Being strategic always works.

I had less time to prepare, so I had to put in laser sharp focus on what would get me more marks. I planned according to what will fetch me more marks rather than just learning the subject by reading books and notes. That changed everything in terms of my ability to score.

Learning is different than scoring marks in class. Once you get that straight, you start scoring well. My understanding of what it takes to score well has evolved since, through my experience as a researcher, writer and a marketer. In a way, scoring well in exams, viva and projects is very much like marketing – you score well if you can stand out.

Nobody will see the sweat and tears you have put into learning something. Nobody is going to take a peek inside your brain. If you can show off, whatever little you may know, in a convincing way, you score well. If you know a lot but are not able to showcase that knowledge well, you will score less!

Without further ado, let me share some important principles that will help you to do well academically if you are studying law. I suppose most principles will apply to any discipline even outside law, but these are tried and tested in the field of law.

My mentees have topped in class in top NLUs and traditional universities. And I learned a lot more than I did from their experiences than just my own as I guided them through various academic labyrinths.

Before I proceed further, let me one thing clear though. There is a tactical difference between how you go about things if you are in a law university where all marks are given by and question papers are set by internal teachers, and those where external examiners set your final paper and give marks.

For example, if you are studying in an NLU or Symbiosis or Amity, the teachers who teach you also set papers and check them. If you are studying in GLC Mumbai or Rizvi Law College, your paper will be set and ultimately checked by examiners from other colleges.

That has to be factored into your preparation. However, the principles that I am going to tell you about apply universally.

So what are these principles?

It’s not enough if you know a lot, the teacher needs to see how much effort you are putting in

Academicians are human beings like all of us. They love students who take an interest in them, their work, respects them and show an eagerness to learn from them. All teachers are flattered at the highest level if you pay attention to them. If you do not pay attention, they will also not like you. That reflects in their assessment of your work.

Most colleges have projects, assignments, class participation marks, presentation, moot or viva (oral examination) marks that is allocated by your subject teacher. If your teacher thinks highly of you, then you will get more marks.

Initially, I thought that the projects I write or the viva performance will be only judged based on my performance or quality of my work. That is rarely true. Of course, the quality of your work and your knowledge is an important factor, but not the only factor. You teachers opinion of you will always colour your score.

It is great if you know a lot about the subject. For example, I loved family law and knew a lot about it. However, my final score was very average. The reason was that the teacher who taught the subject thought that I am arrogant and did not like me. I was indeed arrogant about how much I knew and I would ask questions to her in class that would put her on the spot. A terrible idea if you want to score well.

I got low marks in viva as well as the project. I was shocked. But that’s how it works.

On the other hand, the teachers I genuinely liked, and approached again and again for advice, or went up to them for suggestions about my research or about an article I was writing, rewarded me with a lot of marks. It is not enough that you are studying a lot, it helps if your teachers know that you are working a lot. That helps all the way!

How to go about attending class

Attend classes and pay attention.

Or do something else that will move you ahead in life during the class time. I used to either engage in my hobby of writing poetry, or used the time to study for exams (since you are sitting with the textbook anyway) and sometimes wrote blog posts. Better than writing notes, because I could get class notes before the exam from other classmates.

I was never good at writing class notes so I focused on what I did well instead.

But you need to appear to be engaged in the class. Do not just sit like a puppet through the class. Ask a few intelligent questions. Contribute to the class discussion from time to time.

I usually found most classes to be too slow. What I can learn in 5-10 minutes will be discussed in a class for 1 hour. I found it to be a big waste of time. So I used the class in any possible way. Such as writing blogposts or studying for exam, depending on whether or not I was allowed to carry a laptop to class.

Still, if you do not attend classes, you will lose marks. Most colleges have marks for attendance. Leaving that aside, if you don’t attend classes, the teacher is less likely to give you good marks.

Classes are a great place to impress your teachers, so that they remember you from a large batch of students, and award you good marks later.

Projects and assignments

Scoring well in projects or other assignments is usually critical to doing well in a course. Start by choosing an unusual and interesting topic that ideally even your teacher does not know much about. Such projects tend to get more marks, do not ask me why.

If you have been allocated a boring dead bit topic, see if the teacher would be open to changing the topic to something exciting.

Remember that presentation is often more important than content, because teachers do not read your project, assignment or even the exam papers thoroughly. Hence, the importance of the presentation.

Make sure you have plenty of headings, subheadings and footnotes. I believed wrongly in college that writing in a bombastic language will fetch me more marks. This is not true. Write in simple, easy to understand and easy to read the language.

You can check with the Hemingway tool if your write up is easily readable or difficult to read.

Remember that your assignment or answer needs to stand out. How will that happen? You need to think about that and execute accordingly.

Presentation and uniqueness is more important than substance when it comes to getting more marks

Most teachers are hard pressed for time and have to correct way too many papers. This is why in Indian law schools those who have better presentation skills win over those with great content and knowledge but poor presentation skills.

This is true for everything, from exam papers to projects or class participation.

I strongly recommend that you read a bit outside the syllabus. Finish looking through your course module or textbook so that you have an idea about what is there in those texts. And then go and ask the teacher to recommend more books or articles on various subjects. This is a killer move. You are reading what the teacher likes, and if you can mention these things in the exam paper, or projects and viva, the teacher will be delighted and flattered and will definitely give you more marks.

Writing the correct answer is not enough

In a place like NUJS, everyone wrote the correct answer. Almost everyone at least! So just giving the correct answer gets you average or even below average marks. You need to do more to score top marks.

You need to be creative. You need to write things that even the teacher does not know but would still be relevant. You need to present things in unique ways that impress the teacher.

For every subject and different teacher, what this extra consists of would be different. You need to find out what will impress the teacher and help you to stand out.

Ask the teachers what do you have to do to score very high and top the class

Different teachers have different preferences and standards. The torts teacher may give you more marks for mentioning a lot of case laws, while the criminal law teacher may have very different expectations. For example, my CrPC teacher gave more marks to those who could reproduce illustrations from the bare act. I didn’t know that, and found it out only after the exam.

So here is what to do: meet the teacher separately (not in class) and ask him or her what you would need to read, study and how to prepare so you can score the highest in his class. How should I prepare for the exam? Can you show me last years best projects? Can you show me the best answer papers from last year so that I can learn how to prepare myself?

This kind of preparation is unthinkable for most law students.

But doing this will ensure your success, because firstly you have a clear idea about what to do (which most people have no clue about because they will never take such pain) and then because the teacher is already damn impressed with you because he has rarely seen students so focussed and taking this level of initiative, so he will be rooting for you too.

It may seem like a lot of work, but trust me this would reduce the amount of work you will actually have to do, and increase your success rate like you have never seen.

How much will your stellar grade help you?

Here is the thing. Your stellar grade will help you to an extent. But do not become too narrowly focussed on it or too elated about it.

Let me tell you a story. I started guiding a very smart and driven girl in her 2nd year in college. Within one semester, she began to top her class. She was always in the top 3 positions, at NUJS, my alma mater. This is no mean feat.

When she was beginning her 4th year, I advised her to work on other practical projects. She thought that this will take away her focus on exam. She thought topping in exams will solve all of her problems and her career will be set.

It was not. She did not get a top tier law firm job she had hoped for despite amazing rank. There were many gaps in her personality, ability to work with a team, or finding solutions. Instead of working on those, she just sought the thrill of topping in her class. And did not do the necessary groundwork that she should have done to become a good lawyer.

She paid dearly for that arrogance. Of course, no mistake is fatal and through trial and error she eventually learned how to survive in the corporate law world and today she works in a big law firm.

However, I just want to tell you that topping in the class is not as hard as succeeding as a lawyer. Being a good and successful lawyer requires a lot of skills that you are not learning in college.

Learn practical skills. Learn how to deliver great results to your clients. Those abilities will always eventually trump scoring top marks in law school.

Develop yourself with that long term thinking. By all means, score as much as you can, but do not forget that there is a lot more to do while you are in law school.

Network. Learn critical skills. Build a good profile. Develop your personality. Research. Write. Intern. Help helpless people with their legal problems. Volunteer.

If you want to learn practical aspects of the legal profession and skip the queue of law graduates trying to learn practical skills through trial and error, consider taking one or two of the following courses, closing on 14th of June.

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 Score really well in Law School without losing Sleep over Grades appeared first on iPleaders.

This article is written by Shraddha Maheshwari, a student of Diploma in Entrepreneurship, Administration and Business Laws from LawSikho. She has discussed government incentive schemes for women entrepreneurs.

Introduction

Development of a country is marked by not only the infrastructure and standard of living but also the rights and privileges available to its citizens. Women rights and empowerment have been in discussion on a global level for almost a decade. Though we are faced with a question: how can equality and empowerment realistically be achieved by a country or rather a democracy? The mere provision of equal rights does not guarantee women empowerment. Women empowerment can be defined as the capacity of women to pursue what they desire and in the manner they desire.

There is no doubt that the participation of women in employment and professional services has increased manifold. Women have ventured into the sector of business and entrepreneurship though they are still in small numbers. The domain of entrepreneurship or business remain dominated by men in our society

One of the ways to open doors of the world of business and entrepreneurship is to provide women with the requisite means to establish or start a business. Establishment of business requires capital, assets, human resources and a desire to make a profit unless it is for a charitable cause.

The most popular businesses amongst women entrepreneur include fast moving consumer goods such as kitchen spices and food products, beauty and cosmetic products, handloom and textile, sanitary products like pads and menstrual cups. Most of the women dominated businesses in India are run by Self Help Groups formed by women of a village or community of whom a successful example is Shri Mahila Griha Udyog Lijjat Papad, popularly known as Lijjat.

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Entrepreneurship can be productive and advantageous means of earning livelihood but it surely is a challenging one. Women entrepreneurs are often faced with problems at the time of establishment and later at the running stages. Some of which can be summarized as follows:

• Financing

The problem of financing is generally faced by women because in a patriarchal society like India women hardly hold property and most of them are still home-makers. Additionally, banks and financial institutions consider women less- credit worthy debtors due to lack of collateral security in their name. Thus, women are bound to depend on paltry amounts of money given by their relatives or husbands.

• Patriarchal and Traditional Opinions

The mindset of people in Indian society often discourages women to start their own initiatives without the help of men. Therefore, most of the women lack the desire to establish or to start their own business.

• Illiteracy and lack of education

In India, illiteracy poses a major problem towards societal change. Moreover, poor levels of education amongst women help them no better.

• Prioritization

Since women are expected to take care of the family along with their business. This leads to the lesser commitment to work and reduced dedication towards business and career.

Government through the Ministry of Micro, Small and Medium Enterprises, Micro, Small & Medium Enterprises Development Organization (MSME-DO), State small industries development corporations (SIDCO), nationalized banks and non- governmental organizations has launched a variety of Entrepreneurship Development Programs for women entrepreneurs. Government schemes for women can be categorized into the following classes:

• Bank Loans on Soft Terms
• Skill Development/ Income Generating Schemes

• Schemes By Nationalized Banks

Following are some of the bank loan schemes available for women entrepreneur for a capital generation:

• Annapurna Scheme

For women desiring to establish food catering services, State Bank of Mysore offers bank loans up to Rs. 50,000. The loan has to be repaid by way of EMI for thirty – six (36) months and the EMI for the first month is waived.

Further details can be obtained at the relevant bank branch but one can refer to https://business.mapsofindia.com/banks-in-india/state-bank-of-mysore.html

• Stree Shakti Package Scheme

It is a scheme offered by State Bank of India to women entrepreneurs who have fifty per cent (50%) ownership in the business. The interest rates are as low as 0.5% for loans exceeding Rs. Two(2) Lakhs. Also, no security is needed for loans up to Rs. Five(5) Lacs for tiny sector units.

The abovementioned information can be accessed at https://www.sbi.co.in/portal/web/home/stree-shakti-package

• Akshay Mahila Arthik Sahay Yojana

Bank of Baroda offers this scheme to women entrepreneurs involved in agriculture, retail and cottage industry. No collateral security is required for raising a loan under this scheme.

Information in regards to this scheme can be obtained at the branch of the bank.

• Stand-up India Scheme

After the launch of the Start-up India Action Plan in 2016, this scheme was launched to support entrepreneurship amongst women and SC/ST communities for setting up a business in manufacturing or trading or services sector. It expedites the process of granting loans by the banks ranging from Rs. Ten (10) Lakhs to Rs. One (1) Crore to the eligible borrower. The borrower must also be 51% stakeholder in the private business or organization.

Information pertaining to this scheme can be accessed at https://www.standupmitra.in/Home/SUISchemes

• Udyogini Scheme

Punjab and Sind Bank offers this scheme to women between the ages of 18–45 years. Low-interest rate loans are provided up to Rs. One (1) Lakh provided the family income of the women is Rs. Forty-Five (45) thousand or less.

More information is available on https://www.psbindia.com/content/udyogini

• Cent Kalyani Scheme

Under this scheme loans up to Rs. 100(hundred) Lakhs are offered. No collateral security of guarantor is required for the disbursement of the loan. The scheme is offered by Central Bank of India.

At interest rates as low as 0.50% .with some additional concession available on certain conditions.

Further information can be obtained from https://www.centralbankofindia.co.in/English/Cent_Kalyani.aspx

• Mudra Yojana Scheme for Women

This scheme provides loans to women desirous of opening a small enterprise like a crèche, tailoring unit, beauty salon or coaching centre or a similar enterprise. The scheme does not require any collateral security or guarantors. The loans can be availed in the following three manners:

1. Shishu- Loans up to Rs. Fifty (50) thousand are offered.
2. Kishore- Loans of the amount between Rs. Fifty (50) thousand to Rs. Five (5) Lakhs are granted
3. Tarun- Loan of Rs. Ten (10) Lakhs can be availed.

Upon the grant of loan, a Mudra card, similar to a credit card, is issued to the debtor with the limit of Ten (10) per cent of the loan amount.

Further information is available at https://pradhanmantri-yogana.in/pradhan-mantri-mudra-yojana/

• Orient Mahila Vikas Yojana

Oriental Bank of Commerce offers loans up to Rs. Twenty- Five (25) Lakhs to women who have 51% ownership in the proprietary concern. The interest rate of 2% is applicable on such loans. Collateral security is not required for loans up to Rs. Ten (10) Lakhs.

The relevant information can be obtained from the concerned branch of the bank.

• Mahila Udhyam Nidhi Scheme

Punjab National Bank provides loans to women involved in setting up small scale industries on soft terms. Such loans can be repaid in ten (10) years. The maximum amount of loan that can be granted is Rs. Ten (10) Lakhs.

Apart from this, several schemes for women are offered by Punjab National Bank which can be accessed at https://www.pnbindia.in/schemes-for-women.html

• Establishment of Business Units

Some of the schemes available for setting up and establishment of business and production units are mentioned below:

• Steps Scheme

With the intention of providing skill development training for self-employment, the Department of Women and Child Development launched Support to Training and Employment Programme for Women Scheme (STEP). Under this scheme, the Government provides funding to non- governmental organizations for providing skill development training to women. The maximum funding provided is 90% and the rest of the amount has to be contributed by the implementing agency.

Details regarding this scheme can be found at https://wcd.nic.in/schemes/support-training-and-employment-programme-women-step

• Pradhan Mantri Kaushal Vikas Yojana

Though this scheme was not launched specifically for women, it does aim at providing skill training courses to women like beautician’s course, tailoring, handicrafts and jewellery making. It provided training, certification and even placements to the women who successfully complete the course. However, a theory exam needs to be cleared in order to obtain the certificate which poses a problem for illiterate women.

The information about this scheme and the process of registration can be accessed at http://pmkvyofficial.org/

• Skill India Scheme

Apprenticeship Training By National Skill Development Corporation under the Skill India Scheme is also provided to women. It is a pilot program in collaboration with UNDP and Society of Development Alternatives which aims to provide training to women in fifteen (15) months.

The link to Skill India Portal is https://www.skillindia.gov.in/

Women entrepreneurs have been increasing and have marked their presence in the business world. Women entrepreneurs like Vinita Luthara (VLCC), Shahnaz Hussain, Falguni Nayar (Nykaa) and Richa Kar (Zivame) are some of the known successful entrepreneurs in India.  But these are not limited to the educated and urban women who went on to pursue their desires. Few success stories of women entrepreneurs also include:

• Lijjat

It is India’s leading women’s co-operative aimed at women empowerment by providing employment. Lijjat was initially involved in selling papads. But it has expanded to selling other food-related fast moving consumer goods in India and globally.

• Thinlas Chorol

A woman entrepreneur born and brought up in extreme climate and habitation of Ladakh worked as a tourist guide till 2009. In 2009, she founded her own travel company Ladakhi Women’s Travel Company. She has been involved in encouraging Ladakhi women to participate in mountaineering and expeditions.

However, the nation needs to empower women who come from underprivileged background with no education or resources for the establishment of business. Additionally, women also are considered low risk bearing individuals due to lack of capacity to handles business and the associated risks. One of the solutions to this problem can be that the government can provide means and resources for establishment of business and production units so that the business failures due to lack of resources can be minimized. Along with providing loan, these women should also be given the necessary training and skills to handle a business. Enough, skill development and training schemes already exist in India. But the drop-out rate of women from these courses is considerably higher than men. The reason for this can be poor levels of education. With the wave of start–ups and ease to do business in India, it is expected that more effective schemes will be launched to support women entrepreneurs.

It would be more useful if you could point out the websites/offices to be contacted for further information to avail these facilities. 

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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