This article is written by Sparsh Mali, a fourth-year law student at the School of Law, UPES, Dehradun. The article defines and explains about different terminologies used under Law of Evidence. 

Introduction

The Law of Evidence is a significant part of any branch of the judicial system irrespective of any nation, which means the role of evidence is very important statute in every country. But talking specifically about India the enactment of Indian Evidence Act has changed our judicial system completely as there were no codified laws relating to evidence which enriched our judicial system by providing rules and regulations for ascertaining the shreds of evidence. Although the India Evidence Act is based on English law still it is not fully comprehensive and also it is a ‘Lex Fori’ law which means law of the land where court proceedings are taken. The term ‘evidence’ is derived from Latin word i.e., ‘Evident’ or ‘Evidere’ which means ‘to show clearly, or to discover, or to ascertain or to prove.’

The Evidence act came into force from 1st September 1872 applies to all over India except the state of Jammu and Kashmir. The limitation of this act does not end here, as it is not applicable to army & naval law, disciplinary acts and all the affidavits. It is well known that the Law of evidence is Procedural Law and it only applies to court proceedings but it also has a feature in its some part which makes it as Substantial Law like Doctrine of Estoppel.

The primary objective of any Judicial System irrespective of any state is to administer justice and protect the rights of the citizens. For administering justice, every judicial system has to consider the facts of the cases and has to extract the correct facts for complete justice; and there the importance of procedural law comes into existence which laws different rules in checking the value of the facts produced by the law offender and by the victim.

The complete ‘corpus juris’ i.e, a body of laws, is divided into two categories:

• Substantive laws- Which mean a set of rules and regulations that govern the society.
• Adjective laws- These are the set of rules and regulations which deals with the law governing procedural aspects such as evidencing, pleading etc.

But the law of evidence neither comes under substantive law nor under procedural law, rather it is a subject matter of ‘adjective law’, which defines the pleading, evidencing and procedure with respect to substantive laws. The general meaning of ‘Evidence’ is ‘a body of facts and information indicating or adjudicating the values of any facts or evidence’.

Classification

Evidence is classified into different categories such as:

Oral Evidence- Section 60 deals with the oral evidence, where oral evidence is those evidence which the witness has either personally seen or heard any such facts or information which has the capability of proving or establishing the facts in issues. The only condition with these types of evidence is that they must be direct or positive for establishing the fact in issues.

• Documentary Evidence- Section 3 talks about the documentary evidence, where those facts or information in the form of the document can be witnessed directly by the court of law for establishing the facts in issues.
• Primary Evidence- Section 62 deals with primary evidence, these are those facts or information which by any means has a great capability of proving or disproving any fact in issues then such information is considered as primary evidence like a paper document of any vehicle is primary evidence to prove the ownership of the vehicles.
• Secondary Evidence- Section 63 deals with secondary evidence, these are those evidence which is given in the absence of primary evidence like when there is no primary evidence than secondary evidence can be used to prove a fact in issue.

Eg. If the original paper document is lost then its photocopies can be used as secondary evidence to prove the ownership.

• Real Evidence- Real evidence means material evidence where the court can inspect the evidence directly and requires no further knowledge.
• Direct Evidence- It is one of the most powerful types of evidence as the court need not make any inference because these evidence shows the direct impact and has great value to establish or prove any fact in issues.
• Indirect/ Circumstantial Evidence- When there is no sufficient direct evidence to prove any fact in issue then the court can make an assumption on the availability of existing evidence and construct a link between the existing evidence and the inference. And if the constructive link is completely beyond any reasonable doubt then the court can establish any fact.
• Hearsay Evidence- Hearsay evidence is very weak evidence or no evidence as to the witness, himself is not the actual witness of the fact in issues because whatever he is reporting is not what he saw or heard rather the reporting facts are the facts which are narrated by another person. Hence the court believes that the narrated facts by the third person have not much credibility in establishing any facts.
• Judicial Evidence- Statements of witnesses, documentary evidence, facts established during the examination of a witness in the court, self-incrimination is some kind of evidence which the court receives itself and such evidence are known as judicial evidence.
• Non- Judicial Evidences- Confession made by the witness or accused or victim outside the court are considered as non- judicial evidence.
• Prima Facie Evidence- The concept of ‘on the face of it’ with respect to evidence is a principle when the court presumes any facts and considered them proved until they are disproved, then such evidence is known as prima facie evidence.

The Need for Evidence Law

Evidence is the only possible way by which the court can make inferences to render a decision. The definition of evidence explains that evidence is the proof of any fact in issues so without evidence there will be no possibilities to prove any fact in issues or even to establish any facts in the cases. It is very obvious that it is not much difficult task to obtain trust through violating the basic structure of law but in the course of protecting those rights Evidence, Law comes into the picture. Evidence Law tells the basic principles and rules regarding collection. So the process of evidencing any facts or proof should be governed by a well-established law in order to achieve speedy and fair justice.

The law of evidence is not just a fundamental principle governing the process of proof rather it also has a multidimensional purpose of governing the rules relating to the process of proof in court proceedings. While it’s moral dimension is a special asset in criminal trials as it endeavours in protecting the innocent and highlighting the guilty person to administer complete and fair justice. On the other hand, the evidence rules also have the capability to hide and prevent the truth to be disclosed in the public domain to protect the mass public interest.

Basic Legal Terms

• Facts in issues- Section 3 of the Indian Evidence Act defines facts and fact in issue in such a way that facts mean the ‘happening or existence of anything’ these are particularly knowledge or any information related to anything. Whereas, facts in issue are those facts which are in question or those facts which need to be proved for the purpose of ascertaining some information and making inferences out of relevant information in the case in obtaining justice.

Illustration-

A is the owner of a shop- it is a fact.

A is accused of robbery- now whether A committed robbery or not is a fact in issue.

• Relevant Fact- The actual meaning of relevant is ‘connected’, so those facts which give any inferences or support or influence to any other facts then these facts are known as relevant facts.

Illustration-

A is accused of Murder of B in Agra (Fact)

A was in Canada for his business meetings at the time of the murder (Relevant fact)

• Proved- A fact is considered to be proved when, the court after considering all the evidence after the trials and proceeding either believes the happening of the case in such a manner as it is expressed or if the court makes a probable inference beyond reasonable doubt and believes that the existence of the case in such manner as it was explained.
• Disproved- A fact is considered to be disproved when the court after considering all the evidence after the trials and proceeding either believes that it does not exists as explained or if the court makes a probable inference beyond reasonable doubt and does not believes the existence of case in such a manner as it was explained.
• Not proved- A fact is called not proved when the facts are in a circumstantial condition that they are neither proved nor they are disproved.
• Presumption- Presumption generally means a process of ascertaining few facts on the basis of possibility or it is the consequence of some acts in general which strengthen the possibility and when such possibility has great substantiate value then generally facts can be ascertained. A presumption in law means inferences which are concluded by the court with respect to the existence of certain facts. The inferences can either be affirmative or negative drawn from circumstance by using a process of best probable reasoning of such circumstances. The basic rule of presumption is when one fact of the case or circumstances are considered as primary facts and if they are proving the other facts related to it, then the facts can be presumed as if they are proved until disproved. Section 114 of Indian Evidence Act specifically deals with the concept that ‘the court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of (a) natural events, (b) human conduct, and (c) public and private business, in their relation to the facts of the particular case’.
• May presume- It is a condition when the court enjoys its discretion power to presume any/ certain/ few facts and recognize it either proved or may ask for corroborative evidence to confirm or reconfirm the presumption set by the court in its discretion. Section 4 of the Indian Evidence Act provides that a fact or a group of facts may be regarded as proved, until and unless they are disapproved. The concept is defined under Section 4 of this Act that ‘May Presume’ deals with rebuttable presumption and is not a branch of jurisprudence.
• Shall presume- It denotes a strong assertion or intention to determine any fact. Section 4 of Indian evidence Act explains the principle of ‘Shall Presume’ that the court does not have any discretionary power in the course of presumption of ‘Shall Presume’, rather the court has presumed facts or groups of facts and regard them as if they are proved until they are disproved by the other party. Section 4 of the Indian Evidence Act explains that the concept of ‘Shall Presume’ may also be called ‘Presumption of Law’ or ‘Artificial Presumption’ or ‘Obligatory Presumption’ or ‘Rebuttable Presumption of Law’ and tells that it is a branch of jurisprudence.
• Conclusive Presumptions/ Proofs- It can be considered as one of the strongest presumptions a court may assume but at the same time the presumptions are not completely based on logic rather court believes that such presumptions are for the welfare or upbringing of the society. With regards to Conclusive proofs, the law has absolute power and shall not allow any proofs contrary to the presumption which means if the facts presumed under conclusive proofs cannot be challenged even if the presumption is challenged on the basis of probative evidence. This is the strongest kind of all the existing presumptions whereas Section 41, 112 and 113 of the Evidence Act and S. 82 of the Indian Penal Code are one of the most important provisions related to the irrebuttable form of presumptions or Conclusive Presumption.

The general definition of Conclusive Proof is a condition when one fact is established, then the other facts or conditions become conclusive proof of another as declared by this Act. The Court in its consideration shall regard all other facts to be proved, only if one fact of the case is proven without any reasonable doubt. And if the other facts are proved on the basis of proving of one fact that the court shall not allow any evidence contrary to other facts which are presumed as conclusive proofs

Illustration- A and B married on June 1 and the husband left home to his work for 6 months later he discovered that her wife is pregnant he divorced the wife and challenges that he is not liable for paying damages either to his wife or to his illegitimate son. And also explains that he never consumed his marriage as just after one day of marriage he left his home for his work. But in this case, the court will conclusively presumed that the son born out of his wife is legitimate because he was with his wife for at least 1 day and shall not allow any proof contrary to the conclusive proof even if he provides probative evidence.

Relevancy of Facts

1. Doctrine of Res- gestae: The doctrine of Res gestae is expressed under section 6 of the Indian Evidence Act, 1872 in the following words- “Facts which though not in issue are so connected with the facts in issue so as to form a part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places”

Res gestae was originally used by the Romans which means to ‘acts done or actus’. The most important principle of this doctrine is that all the facts must be described in the same transaction. Whereas transaction means a group of facts which are so connected to each other that they can be considered as a single fact. In Layman’s language, a transaction may be considered as a series of certain acts and when all the actions are carried in the same situations at the same point of time then such situation or condition be called as the act of the same transaction. Circumstantial or indirect facts are also considered under the doctrine of res gestae as they are also forming a part of the same transaction.

Essentials of Doctrine of Res Gestae-

• The statement made should not be an opinion and must be a statement.
• The statements should be made by the participants of the transaction.
• The statements should have enough information to explain or brief about the incident.
• The statements made by the person or act of the person should be spontaneous and simultaneous to the main transaction.

Illustrations-

If a person is dying of poison and before dying, he tells the name of the accused.

If a person is about to die as the accused is in front of him holding a gun and he asks for help.

If an injured person is crying for help.

In, Ratten V. Queen[1] the victim (wife) called the police for help as her husband was holding the gun and was about to kill her but before the operator could get connected to the call and report the statements of the victim, the call disconnected. Later the police found her dead body in her house from where she called the police for help. Later the police found that the time of the call and time of death was almost the same so the call by the victim comes under the principle of res gestae. Hence the court found the husband guilty of murder and quashed his reasoning that he shot accidentally without any intention.

In, Sukhar V. State of UP [2] the victim tried to alarm that the accused will shoot him in a few minutes. On hearing the alarm the witness almost reached the place of incident. However, the victim survived and the accused was charged under section 307 of IPC (Punishment for Attempt to Murder). Despite the circumstances, in this case, being hearsay evidence, but still, the court recognised the act in the same part of the transaction and explained it to be a case of section 6 of the Indian Evidence Act. Therefore the statements of the witnesses were admissible as it formed a part of the same transaction.

In Uttam Singh vs. State of Madhya Pradesh[3]the child and the victim were sleeping together at the time of the incident and he suddenly awakened due to the voice of axe and screamed for help by taking the name of the accused. Just after the call for help his mother, sister and other witness come there. The court found this evidence to be admissible as the act of the child and the accused was of the same part of the single transaction.

2. Motive Preparation and Conduct

Section 8 of the Indian Evidence Act talks about the importance and of motive, preparation, conduct(previous & subsequent) in various cases. And it is a well-known fact that Motive & Preparation are among the first act before any conduct. Therefore Section 8 explains the importance of motive, preparation and conduct where there are no direct evidence and the facts are proven on the basis of circumstantial.

Motive- The general meaning of ‘Motive’ a purpose, or objective to obtain something. The Supreme Court of India defined motive is something which induces or activates a person to make an intention and knowledge, with respect to awareness of consequences of the act.

The relevance of Motive under the Act: As in the above discussion we have already seen that Motive is the main inducing force which induces a person to do some act. It is expressed that if the offence has been commenced voluntarily then could be no possibility of the absence of motive. Although it is very difficult to obtain the evidence of motive still evidence of motive becomes very important in the case of circumstantial evidence. The Supreme Court in the reference of motive said that ‘if the witnesses of any case are trustworthy and have enough credibility then the motive of any act done by the offender has no such importance’.

Although motive and intention are the same there is a thin line of difference between them that intention is the pre-calculation or knowledge of ascertained consequences in the mind of the offender. In some cases, it is observed that sometimes motive behind the execution of a crime may be good but the intention is always bad or guilt-oriented.

In, Kundula Bala Vs State of A.P[4]: The son-in-law before his marriage demanded a piece of land from the deceased. But after the marriage, the deceased refused to transfer the ownership of the property and expressed that he would give this property to his daughter. Such inferences of the father in law induced the accused in committing a crime and after some time the crime commenced. The court observed that there is a strong motive with the accused of committing the crime as the father in law refused to transfer the property in the accused name.

In, Gurmej Singh Vs State of Punjab[5]: The deceased has won the election against the accused. It is also seen that they don’t have good relations between and they have always had a quarrel with each other. The reason behind frequent quarrels was that the accused diverted dirty water stream towards the house of the deceased. The court observed that there were pending litigation between them and dirty water stream induced the frustration between them. After the death of the deceased, the Court concluded that dispute related to the passage of dirty water could be the motive of the murder.

In, Rajendra Kumar Vs State of Punjab[6]: The Court held that the accused can only be convicted if the prosecution completely proves the motive and provide the supporting evidence to establish the commission of the offence by the accused.

Preparation

The Supreme Court of India interpreted ‘preparation’ as a word which denotes the action or preparation of any act and also those components which are prepared. Preparation includes arranging the essentials objects for the commission of a crime/offence.

Evidence tending to show that the accused had prepared for the crime is always admissible. Preparation does not express the whole scenario of the case rather preparation is only subjected to the arrangements made in respect of committing any act. Further, there is no mandate that preparation is always carried out but it is more or less likely to be carried out. It is very difficult to prove preparation as there is no mandate that preparation is always carried out for the purpose of committing any crime. It is mostly observed that the Court draw inference with certain facts in establishing or ascertaining the preparation of crime committed.

In, Mohan Lal Vs Emperor[7]: The accused was charged for cheating as he was importing goods in Karachi port from Okha port without paying the proper custom duty as he made some arrangements with the customs department. The prosecution showed enough evidence to prove the preparation by the accused in avoiding the import duties. The Court held that the act by the accused was completely wrongful and are prohibited by the law hence the accused is liable for preparation.

In, Appu Vs State[8]: The four accused arranged a meeting to make essentials arrangements for commencing crime. Certain facts related to the objective of the scheduled meeting were admitted which showed preparation on their part. The preparation was administered clearly that it is an intention to commit burglary and the accused were waiting for the right time to get the best opportunity to execute their preparation.

Conduct- Section 8 of The Indian Evidence Act also defines ‘conduct’, conduct here means an external behaviour of a person. To check if the conduct of a person is relevant to the incident then the court must establish a link between the conduct of a person who committed the crime and the conduct of incident. The most important role of this part is that the relevant conduct must bring the court to a conclusion of the dispute. If the Court came to a conclusion then the conduct was previous or subsequent, it shall be checked properly by the Court. It is very clear that conduct is one of the very important evidence explained under Section 8 and such importance is only considered when this conduct is in direct form, otherwise, if the conduct is recognised indirectly then it will lose its importance.

In, Bhamara Vs State of M.P[9]: a person X was farming on his land, on seeing another person standing near to his place he called the person for some conversation. After a few moments, the conversation turned into arguments and ended up into a fight. On seeing such activity other people came to the place of incident to stop the fight but subsequently, the offender tried escaping. But the offender was caught by some other person. The Court found that the conduct of escaping of the offender was relevant subsequent conduct.

In, Nagesha V. State of Bihar [10], it was held by the Court if the first information is given by the accused himself, the fact of his giving information is admissible against him as evidence of his conduct.

Conspiracy- Conspiracy means few people come together to do an act with common intention. So in the same context, a criminal conspiracy is the act of at least two or more persons to do an act which is not authorised by the law i.e., an illegal act, or to do a legal act by illegal means. Criminal Conspiracy is a kind of partnership in crime, and every member of such partnership must join the partnership by mutual agreement for executing a common plan.

There are two relevant provisions which deal with the criminal conspiracy i.e., Section 120(A) of the Indian Penal Code and Section 10 of the Indian Evidence Act talks about the things said or done by a conspirator.

Essentials of Criminal Conspiracy u/s 10 of the Indian Evidence Laws:

• There should be reasonable grounds to establish a conspiracy.
• There should be at least two or more persons to form a conspiracy.
• There should be a common intention of all the conspirators.
• Acts or Statement of the conspirators.
• The acts or statements of the conspirators must be in reference to common intention.

In, State of Tamil Nadu v. Nalini[11], the court held that once any of the participants of conspiracy execute the conspiracy then his statements made by him cannot be used against other conspirators according to Section 10 of the Indian Evidence Act.

In Subramaniam Swamy v. A Raja[12], the court in its judgments showed that anything which is doubtful cannot be considered as legal proof and such proofs are insufficient to prove any criminal conspiracy.

Alibi- The word ‘Alibi’ is derived from the Latin word, which means ‘elsewhere’. Section 11 of the Indian Evidence Acts explains the concept of ‘Facts not otherwise relevant become relevant’ and makes the provision as a defending ground for the accused. The simplest meaning of this section is a condition when the incident took place and the accused is charged for the incident then he may make defend him on explaining that at the time of the incident he was not present at the location. Although previously it was not relevant for the court to know that where he was as the investigation showed that he committed the crime but his explanation that he was not at the place of incident make the irrelevant facts a relevant fact. The important part of Section 11 of the Evidence Act is that this rule is only accepted in the course of admission of the evidence and no other statute provides such rule.

The plea of alibi has to be taken on the very first stage of the trial and must be proved without any reasonable doubt as the burden of proof is on the person who is taking advantage of Section 10 i.e., Plea of Alibi.

Essentials of Plea of Alibi:

• There must be an offence punishable by the law.
• The person taking the defence of Section 10 should be accused of that particular offence punishable by the law.
• The defence must be satisfactory and beyond any reasonable doubt.
• The defence must be backed by evidence.

In, Lakhan Singh @ Pappu vs The State of NCT of Delhi[13] A plea of alibi cannot be compared with a plea of self-defence although both the plea is to be taken on the very first instance of the court proceedings.

In, Sahabuddin & Anr vs the State of Assam[14] Once the court is in doubt with respect to plea of alibi and the accused does not give any substantive explanation to support his statement under Section 313 CrPC, then the Court is authorised to conclude a negative or not a positive inference against the accused.

In, Jitender Kumar v State of Haryana[15] the Court not believing the plea of alibi as the accused did not provide the sufficient supportive evidence for establishing the defence. And the Court supported the case from the prosecution side.

Confession- Section 23 of the Indian Evidence Act defines the word “confession” is an admission of crime by a criminal or suggesting the inferences that he committed a wrongful act, confession can be made at any time during the trial.

In, Palvinder Kaur v State of Punjab the Supreme Court observed two aspects which are: Firstly, the definition of confession is that the accused must either admit the guilt or admit subsequently all or few facts which constitute the offence. On the other side, a mixed statement which also contains some confessional statement will still lead to an acquittal, is no confession. Thus, a statement that contains self-exculpatory matter which if true would negate the matter or offence, cannot amount to a confession.

In, Nishi Kant Jha v State of Bihar the Supreme Court opined and substantiated its arguments on the support of English authorities that it the discretion of the court and there is nothing wrong with relying on some specific part of the confession and rejecting the other part.

Magistrate duty of recording the confession- A Judicial Confession is made to the Magistrate during the judicial proceeding or at the time of court trial. Judicial Confessions are very relevant and are considered as one the most important type of confession as they are directly recorded by the court. Section 164 of CrPC empowers a magistrate to record a confession in his presence and such confession will hold enough evidentiary value that the confessor can be held guilty. Rajasthan High Court has also held that the confession of an accused must be free, voluntary and genuine that nothing is left with the prosecution to prove any fact then only the person can be convicted on the basis of confession.

Dying Declaration

The word “Dying Declaration” means any statement is written or verbal of relevant facts made by a person, who is dead or it is the statement of a person who had died explaining the circumstances of his death.

The concept of dying declaration was evolved from a legal maxim, ‘nemo mariturus presumuntur mentri’ i.e. a man will not meet his maker with a lie in his mouth. Although it may sound impractical but our law has adopted this concept and functions accordingly. Section 32(1) specifically deals with the concept of dying declaration in respect of a cause of death and it is assumed that such statements are relevant even whether the person who made them was not at the time when they were made.

In Uka Ram v. State of Rajasthan, the Apex Court defined dying declaration in a way that, “when a statement is made by a person in the threat of his death or as to any circumstances which cause threat or results into his death, and when the cause of his death comes in question the statements made by him are admissible as evidence, such statement in law are compendiously called dying declaration.”

The Supreme Court in deciding P.V. Radhakrishna v. State of Karnataka, Appeal held that ‘the principle on which a dying declaration is admitted in evidence is indicated in the Latin maxim, ‘nemo morturus procsumitur mentri’, which means that a man will not meet his maker with a lie in his mouth. Information lodged by a person who died subsequently relating to the cause of his death is admissible in evidence under this clause.

In K.R. Reddy v. Public Prosecutor the evidentiary value of dying declaration was observed as:

“The dying declaration is admissible under Section 32 & because the statement not made on oath so that its truth could be tested by cross-examination, the court has to observe the closest inspection of the statement before acting upon it. And it is also assumed that the words of a dying man are of very serious nature because a person on the verge of death is not likely to tell lies or to connect a case to a malice prosecution of an innocent person. Once the court is satisfied that the dying declaration is true & voluntary and are not influenced, then the statements can be sufficient to prove the conviction even without further corroboration.”

The evidentiary value of FIR in the circumstances of dying declaration comes from the concept that- A dying declaration can also be recorded by public servants, or by a doctor as well, where the victim is hospitalized and is badly burnt or injured and wants to make a statement, the doctor can also record the same and make a note of that statement. Although, it is advisable that the dying declaration should be made to the magistrate itself or in the presence of magistrate but if there is a condition where no such possibility is seen then the dying declaration can also be recorded by the police officers, although the court discourages such declaration to the police officer but if the condition and circumstances are of such a nature that no other possibilities are seen, then the dying declarations written by the police officers are also considered by the courts.

In, Kapoor Singh V. Emperor [16] the court observed that the FIR lodged by the deceased person can be admissible as a piece of evidence in the court if the FIR is relating and explaining the circumstances of his death. Also in the case of Sukhar V. State of UP [17], it was observed that if the dying declaration in the FIR is not sufficient to ascertain the facts and reasons for the cause of his death, even though the FIR has enough information related to the accused and details of the incident. Then the information cannot be considered as dying declaration.

In the case of Maniram V. State of Madhya Pradesh, the dying declaration was recorded by the doctor but the doctor did not attest the consciousness report of the deceased and also there was no thumb signature on the dying declaration, in that case, the FIR has lost its credibility and it was difficult to rely on the dying declaration.

Expert Advice 

Section 45 to 51 of the Indian Evidence Act deals with the provision of admissibility of opinions of third persons, which is also known as ‘expert’s opinion’. Although it is a general rule that evidence can only be obtained on the basis of facts which are within the knowledge of a witness. The exception of ‘expert opinion’ is based on the principle that sometimes the court can’t conclude all the matters of the cases which are technically complicated and professionally sophisticated, as these cases are required to deal by such experts who have special knowledge and skills on those matters. The Section 45 of the Indian Evidence Act defines the meaning of ‘expert’ as a person who has special knowledge or skills or has a great experience either in foreign law or in science or in art or in handwriting or in finger impression; and such knowledge is gathered by him in the course of practising in the specific field or through observation or through proper studies in the specific field.

When can an expert opinion be called?

The expert opinion can be called when there is:

1. a) A dispute which can’t be resolved without expert opinion; and
2. b) Such a situation that the witness expressing the opinion is a subject matter related to expert.

In, Arshad v. State of A.P. [18] and S. Gopal Reddy v. State of A.P[19], in both the cases the court observed that expert evidence are just a mere opinion and not the substantive or a probative evidence; according to the procedural rule the opinion or the inference of the expert is not safe as they don’t have any independent value so they must be corroborated with the circumstantial evidence.

In, Piara Singh v. the State of Punjab[20] the Court state that whenever there is a contradiction between the opinion of two experts, then the court must refer only those opinions which are supported by the direct evidence of the fact of the cases.

Witness

Bentham, explains the ‘witnesses’ as the eyes and ears of justice. But the general definition of ‘witness’ is- A witness is a person who voluntarily provides evidence to clarify or to help the court in determining the rights and liabilities of the parties in the case. Witnesses can either be the person related or experts with valuable input for the case. Pieces of Evidence are placed in the court on the basis of witness and even the genesis can be proved of the documents can be proved in the court. Therefore, the law has to be very precise with regards witness and has to check the credibility of the witness, there are some certain issues to the court before the admission of the witness’s statements such as- How many witnesses are needed to prove a fact? Who is competing to be a witness of the issues? How to check the witness credibility?

Section 118 of the Indian Evidence Act lays down certain rules that ‘who may testify’ the rule expresses the provisions that all personnel shall be competent to testify by the court unless the witnesses are protected by some other provision that they cannot understand the question presented before them to testify any facts and such exceptions can be related to extreme old age, chronic disease, being legally unsound etc.

Prima facie, Section 118 of the same Act expresses that other than all person who are incompetent to testify any facts in issues are the competent witnesses. The basic structure to test the competency of a witness is to check whether a witness can understand the questions and can answer reasonably or not.

In Rameshwar vs. State of Rajasthan[21], the Court held that a witness administering an oath only shows the credibility of the witness and not the competency.

Section 135 specifically talks about the order of production and examination of witnesses. It lays down certain rules which specify that the witness can be produced in a particular order only, and shall be examined according to the rules. It also gives discretionary powers to the Court that when there is an absence of law then the order of witness and examination of witnesses will be carried out in the prescribed manner as the Court dictates.

Section 136 empowers a discretionary power to the Court that it is up to the Court who accept the evidence or not.

Three basic stages can be laid down in the examination of witnesses:

Examination In Chief: When the advocate itself introduces his witness and examines them, no matter whether they are the plaintiff or the defendant, then such examination is known as ‘Chief Examination’. It is always preferable that the questions should be properly ordered to maintain the structure of the information. It is advised that only relevant questions should be asked and no leading questions should be asked.

Cross Examination: The other name of cross-examination is ‘examination exadverso’. Such examinations are utilised to testify or impeach the credibility of a witness produced by the other party.

In, Ganesh Jadhav v State of Assam[22] If the defence fails to challenge and impugned the relevant facts stated by the prosecution in the course of examination the witness in chief, then the Court can believe that facts produced by the prosecution are true facts.

Re-Examination: Re-examination is the process of second and subsequent examination by the suffering party. When the council thinks that there is a need of examining his witness again because new facts are availed by the defence party in the course of cross-examination then he may with the permission of the court re-examine his own witness to testify the new facts. Though re-examination is not a matter of right still the Court does not disturb the court proceedings as re-examination may explain the new facts in the case and to administer the justice these facts are necessary.

References

1. [1972] A.C. 378, [1971] UKPC 23, [1971] 3 All ER 801, (1972) 56 Cr App R 18, [1971] 3 WLR 930]
2. (1999) 9 SCC 507
3. 2002 INDLAW MP 79
4. 1993 Cr LJ 1635 SC
5. AIR 1992 SC 214
6. AIR 1966 SC 1322
7. AIR 1937 Sind 293
8. AIR 1971 Mad 194
9. AIR 1953 Bhopal 1.
10. AIR, 1996 SC119
11. AIR 1999 SC 2640 or 1999 5 SCC 253
12. (2012) 9 SCC 257
13. Delhi HC Crl Appeal No. 166/1999
14. Criminal Appeal No. 629 of 2010
15. (2012) 6 SSC 2014
16. (AIR 1930 Lah. 450)
17. (1999) 9 SCC 507
18. 1996 CrLJ 2893 AP
19. AIR 1996 SC2184
20. AIR 1977 SC 2274
21. AIR 1952 SC 54
22. 1995 1 CR LJ 111

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

Many people approach me to recommend them to good law firms for jobs. This morning a student and someone I have mentored for a while approached me asking for a recommendation. It pained me to say no to her, knowing that it probably really upset her.

And then there is another student and mentee that I am aggressively recommending to my friends working in law firms. She is likely to get multiple offers soon. She is already doing an assessment internship too.

What is the difference? Why am I treating these two women, who are roughly of the same age and in a similar position in their career, so differently?

Before you decide, do consider my situation.

Here is what I know about the first person (who I refused to endorse) so far. Please tell me if you would recommend someone like this. 

She enrolled into one of our courses. She has done a total 3 assignments out of 50 that she was required to pass the course, out of 100 that we assigned to her. She barely showed up in any classes. I asked her to write some articles. Her writing is poor, and many of my interns do a better job. The articles are so full of typos and formatting errors that I dread to edit them. Still I helped her to write and publish 2-3 of them, which always took a long time because she will disappear in between.

Of course, I have given her time and counselling whenever she has called me and advised she could possibly do next. She is currently working in a small law firm and wishes to get into a big one. 

She wants me to refer her to some big law firms. 

Can I do so in good conscience, just to be nice to her?

Here is the thing. If I begin to recommend everyone for jobs, even the unsuitable people, my recommendations will cease to have any value. I did not think that this person is capable of doing a good job. Therefore, any recommendation will be totally dishonest. 

Who am I anyway? I run a random online education company. Law firm partners are mildly curious and often supportive of the work we do. There are others who are very suspicious and openly express contempt about online education.

We are slowly winning the faith and favour of Indian legal recruitment community. The last thing we can afford to do is refer the wrong people to the wrong job.

Law firm partners are barely willing to give someone the time of a meeting if we recommend them because they are usually curious about the work we do or because they are pleased with the candidates we have sent before.

Should we jeopardize that?

So what kind of people do we refer instead?

Another person that I have been mentoring since last 6 months is a lawyer with 2 years of experience from Mumbai. She has not only completed her course successfully and attended 90% of classes, but also did really well on her weekly assignments. What is more, she has published a total of over 30 articles on M&A, venture capital and tax till date in last 6 months, and she is working on a list of 20 more articles to take her tally to 50.

By the way, many of her articles run into 10,000-15,000 words.

She knows more about Takeover Code, FDI policy and FVCI regulations than I know. 

I am super proud to introduce her to anyone who would listen as our student. Any interview she gives, I know the lawyers taking her interview will be super impressed by her.

Both the people had access to the same training, same materials and same mentorship opportunities.

What you do with it is totally up to you. Just buying a course do not give you the tickets of heaven. You get a path, and you have to walk it.

I am tempted to tell you about another former trainee. When she got an assessment internship through my partner Abhyuday’s recommendation, she did so well on her job, that her 1 month assessment internship was cut short just after one week and she was confirmed immediately. 

The partner called Abhyuday and told him to refer more people like her.

That’s what we want to do.

We have a policy of recommending people to law firms who we know will do well and exceed expectations. Let it be clear that we will not recommend anyone else. And that is why our recommendation holds value, and in fact increases in value, over time.

We can help you if you help yourself.

Here are the courses in which you can benefit from this system, and enrollment in currently open:

Diploma in Intellectual Property, Media and Entertainment Laws  

Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution 

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

Diploma in Cyber Law, Fintech Regulations and Technology Contracts 

Diploma in Entrepreneurship Administration and Business Laws 

Diploma in Companies Act, Corporate Governance and SEBI Regulations 

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This article is written by Arkodeep Gorai, a fourth year student from Amity Law School, Noida. In this article he discusses about Kyoto Conference and Agenda 21 with reference to Rio Declaration.

Introduction

There has been a massive change in Earth’s climate and our environment has undoubtedly suffered a lot due to the fact that humans have exploited nature without any consideration. The United Nations finally acknowledged the global warming in 1990 and came up with the Kyoto Protocol and in the year 1992, the United Nations opted for sustainable development so they came up with a conference which was called the Rio Declaration. In this article, we will take a look at the various provisions and measures that were laid down in these conferences.

Kyoto Conference

Kyoto Conference Meaning

Kyoto Protocol also referred to as the Kyoto Protocol to the United Nations Framework Convention on Climate Change was an environment related treaty that was signed in the city of Kyoto in the year 1997.

Kyoto Protocol was named after the Japanese city of Kyoto. The main aim of the Kyoto Protocol was to work towards reducing the emission of greenhouse gases. The six identified green gases were Carbon Dioxide, Methane, Nitrous Oxide, Perfluorocarbons, Hydro-fluorocarbons and Sulfur Hexafluoride. These six gases were known to be causing global warming and the main aim of the Kyoto Protocol was to reduce the amount of emission of greenhouse gases.

It came into effect in the year 2005 and the Kyoto Protocol wanted 41 countries and the European Union to participate in the protocol. The Kyoto Protocol wanted those 41 countries and the European Union to reduce the emission of greenhouse gases to 5.2 percent. The process of reduction was scheduled in the “Commitment Period” and the commitment period was from the year 2008 to 2012.

Provisions related to the Kyoto Conference

The Kyoto Protocol was part of the United Nations Framework Convention on Climate Change. The conference wanted its participant countries to make and amend programs that would result in the reduction of emissions of greenhouse gases. The reason they wanted the participant countries to make amendments was that there was a rise in temperature which was global warming. The Intergovernmental Panel which was established under the United Nations and the World Meteorological Organization laid down the ill effects of global warming and they were due to the heating of earth’s atmosphere, for instance the polar caps in the Arctic will start melting and then eventually there will be arctic permafrost. Melting of ice will result in a rise of sea level and which would lead to two further problems, first the flora and fauna of the Arctic will be destroyed and second, majority of low lying coastal cities will be flooded along with many islands completely submerging in water. These ill effects don’t just stop there, adding more to the list there would be extreme climate change, flood, drought and finally a mass scale of extinction of human and plant life on the planet. The mass scale will account for 20-30% of life forms on planet Earth. 

So in the Kyoto Protocol, the officials divided the countries into two parts, namely Annex I and Annex II. So Annex I consisted of developed countries and the developing countries was put in Annex II.

The protocol insisted the percent of reduction of the gases shall be around the 5.6 percent mark, but each country was allowed to set their own emission reduction parameters. The Kyoto Protocol put the emission restrictions in the countries that were included in Annex I. By the time the agreement was put into force the members of the European Union set the restriction to 8 percent, Canada set it to 6 percent and Unites State of America set it to 7 percent.  It was not necessary for all countries to limit their emissions. The reason was that each country had its own different circumstances which made fixing the limitation number pretty difficult. Those different circumstances included many countries had their own industrial belts and some countries had scattered industries throughout.

The reason countries in Annex II were not subject to emission restriction is because they were developing countries. Developing countries needed much more industries to function and those countries might lack the means to amend the Kyoto Protocol. On the other hand, Kyoto Protocol dedicated the majority of the Annex I participants and also countries who had their economy in conversion.

The Kyoto Protocol came into force in the year 2005 when 55 of the participants of Annex I sanctioned the Protocol. Those 55 countries actually resulted in 60% of total greenhouse gases emission in the year of 1990.

Means suggested by the Kyoto Protocol

The Kyoto Protocol laid down many measures which aimed at reducing the greenhouse gases emission. The first method that the Kyoto Protocol suggested was to use sinks. Sinks are actually natural processes, an example of a sink would be planting of trees to remove carbon dioxide. It was the most basic method introduced by the Protocol.

The second method introduced by the Kyoto Protocol was subsidies. The Kyoto Protocol suggested its participating countries to provide subsidies to industries. The method stated that the Government should pay subsidies to the industries as per the amount of greenhouse gas emissions they reduce. It was supposedly an effective measure.

The third method was the introduction of taxes. The government may impose a substantial amount of taxes for greenhouse gas emission. This would be a two-way advantage for the government. First, the tax acts as a revenue-generating mechanism for the government, second it would force industries to produce fewer greenhouse gases.

The fourth method was research and development policy. The international program of Clean Development Mechanism invigorated developed countries to capitalize on fresh and improved technology which would result in less release of greenhouse gases. Furthermore, the Clean Development Mechanism also suggested developed countries to invest in new technologies in developing countries which would benefit both parties and will also lead to a reduction in emissions of greenhouse gases.

The fifth method was the use of green power or green power policy. Under the green power policy, the government must help private firms and sectors to use clean energy sources instead of fossil fuels or coal. Usage of clean and green energy would automatically result in the reduction of greenhouse gas emissions and it would also act as a sustainable method where the current generation would not end up using a majority of the non-renewable sources of energy like coal, fossil fuel, and wood.

The sixth method was part of the Kyoto Protocol’s flexibility mechanism and that is International Emission Trading or IET. International Emission Trading was a better alternative to subsidies or taxes. Under International Emission Trading the government distributes a restricted number of licenses to release definite air pollutants i.e. greenhouse gases for a specific extent of time/duration. Such licenses can further be sold in the secondary market once a company gets hold of it. 

The final method was joint implementation. Under joint implementation or JI, one country from Annex I can invest its resources to another country from Annex I. Such investment shall be related to any project that aims to reduce greenhouse gases emission.

Enforcement of the protocol

If a country fails to comply with the emission limitation then such country must make up the lost marker in the second commitment period with an additional 30 percent and such country will be prohibited from any emission trading program. This only applied to participant countries in Annex I.

Annex I Countries

These countries were part of the Annexure I list and they were required to comply with emission limitation. Each country had its own limitation number set since there was no hard rule regarding the emission restriction.Click Here

Criticism of the Kyoto Protocol

Even though the Kyoto Protocol was a treaty that involved almost all the big countries of the world but it still received its fair share of criticism.

The biggest critique of the Kyoto Protocol was that it was insufficient to avert much of environmental damages. Also, the costs incurred for the Kyoto Protocol outweighs its benefit. Kyoto Protocol has very generous limitation rate and delusional view on the effect of global warming. 

Another factor for criticism is the fact that even the Kyoto Protocol came into force in the year 2005, it still uses its baseline as 1990. There had been lots of changes by that time period. It makes it out-dated and irrelevant.

Also, the Kyoto Protocol exempted developing countries from the limitation rate which was not required. China is a developing country and it was exempted but the harsh fact is that China is the largest emitter of greenhouse gases. So the Kyoto Protocol should have considered other factors other than the label of developed and developing countries. Kyoto Protocol also failed to address any long term impact of such emissions and this makes the Protocol looks less visionary.

Agenda 21 with Rio Declaration

Agenda 21 meaning

Agenda 21 was a part of the Earth Summit under the United Nations Conference on Environment and Development. It was made in favour of sustainable development. Agenda 21 is an action plan of the United Nation and it is non-binding in nature.

Agenda 21 is in reference to the 21st Century and that is what the number 21 stands for in Agenda 21. The main focus of Agenda 21 is to attain sustainable development throughout the world and to commit every local government of every country to make their own Agenda 21 plans to secure sustainable development.

It came into existence at the Rio Earth Summit in the year 1992 and the slogan for Agenda 21 was “think globally and act locally”.

In recent times Agenda 21 had been part of some conspiracy theory as well.

Evolution of Agenda 21

Rio +5

This was the initial phase of the Rio Conference. Then Prime Minister of Norway Ms Gro Horlem Brundtland talked about some of the most common problems that our world is facing. The problems that came into the light were the growing and broadening gap of wealth between rich and poor, increase in globalization and finally the worsening state of Earth’s environment. It was talked and dealt in the year 1997.

As a result of pointing out such key trends and problems, our world is facing, the General Assembly of the United Nations guaranteed additional actions regarding such. So Agenda 21 came into light.

Rio +10

Earth Summit with the main theme as Summit on Sustainable Development took place in the year 2002. It was introduced in the Johannesburg Plan of Implementation.

So what the Johannesburg Plan of Implementation intended to do that they completely implemented the Agenda 21. Even though it was non-binding in nature but still it was implemented throughout the world.

Alongside implementing Agenda 21, the United Nations also planned to achieve the Millennium Development Goals. The Millennium Development Goals was put alongside with Agenda 21 and it was focused towards the newer generation of people.

Millennium Development Goals

MDG or Millennium Development Goals is a part of the Johannesburg Plan of Implementation. The provision of Millennium Development Goals is to achieve certain factors. Those factors from Millennium Development Goals are as follows:

1. To remove poverty and hunger amongst people
2. To promote primary education among all age group
3. To instil gender equality and to remove such gender-based discrimination.
4. MDG also aims to reduce child mortality.
5. MDG plans to curb diseases such as HIV, Malaria and other such diseases.
6. MDG also aims to have a sustainable environment.
7. MDG also aims to introduce a worldwide partnership among countries for wholesome development.
8. These are the goals that were drawn out in the Millennium Development Goals.

Agenda 21 for culture

Agenda 21 for culture is also known as Culture 21. So Culture 21 was brought into existence in the year 2002-04. The main focus of creating Culture 21 ways to introduce local culture and further promote it in an international ground. So once a culture is promoted that certainly means it will eventually result in the economic growth of that country as well.

This time by the provisions of Culture 21, the United Nations focused much more on household development of sustainable development. When Agenda 21 was introduced, the United Nations did not focus more on culture.

Rio +20

Rio +20 also known as Rio 2012 was another international conference on sustainable development by the United Nations. Rio 2012 was a 10-day summit and this time the United Nations focused on sustainable development along with economic development.

Rio 2012 mainly focused on three objectives and they are:

1. Acquiring new political support from countries for sustainable development.
2. Acknowledging the progress made in the last 20 years and trying to cover the gaps of all previous pledges.
3. Discussing all new problems and their solutions.

Rio +20 was the biggest UN event and it attracted the attention of several communities. It was still a part of Agenda 21 which came into existence 20 years ago. But the absence of Barack Obama, David Cameron, and Angela Merkel showed that sustainable development was still not a priority.

The outcome of Rio +20 was the government of 192 countries renewed their policies regarding sustainable development. The motto of Rio +20 was “what we want”. Some of the outcomes of Rio +20 are as follows:

The emergence of SDG or as known as Sustainable Development Goals. Sustainable Development Goals planned to succeed in MDG or Millennium Development Goals.

The participant countries planned to find an alternative to the Gross Domestic Product as a measure for the wealth of a country. The plan was to also include social and environmental factors while measuring a country’s wealth.

The plan also wanted participant countries to implement a change in the taxation system. The new proposed system discussed that low wage workers, labourers shall pay fewer taxes and polluters and operators shall more tax.

Another outcome was all the participant nations confirmed that they would segment out subsidies of fossil fuel.

Finally, all the participant nations talked about more than 400 voluntary programs.

Structure and contents of Agenda 21

Agenda 21 is divided into four sections and each section clears out the plan for Agenda 21. So the four sections are as follows:

Section I: Social and Economic Dimensions

Section I of Agenda 21 which talks about Social and Economic Dimensions can further be divided into 7 parts and these 7 parts are as follows:

International collaboration to speed up sustainable development in developing countries and the introduction of new policies:

The United Nations wanted all its member states to collaborate together and commit to new partnership terms on international grounds which shall be constructive in nature and focuses on a much more efficient world economy. It planned to introduce socialist ideas by having a much more equitable world economy. The need for such collaboration was due to the fact that speeding up of new changes and development required support on international grounds. Another way suggested was the promotion of sustainable development through an open, secure, non-discriminative multilateral trading system that is focused on sustainable development. The main focus should be on commitment as commitment is required to meet sustainable development.

Combating poverty

Poverty is a problem that is faced by all the countries in the world without a doubt. So an idea of international cooperation would not be beneficial as compared to country-specific plans. The reason the United Nations opted for country-specific plans is that countries face poverty at different levels and each country can come up with their own plans and such plans will be backed by international support. The main aim was to provide poor people with a sustainable means of livelihood. Another aim was to provide funding in poverty-stricken areas and to opt for urbanization.

Changing consumption patterns

There is the presence of unsustainable patterns of production and consumption in the world and there was a need to focus on such unsustainable patterns. Unsustainable pattern needs more natural resources and it lacks the efficiency to use natural resources. Consumption is really high in a certain part of the society and hence there is zero equilibrium which actually harms us more than we anticipate. The lifestyle of the richer class is a prime example of why there is a need to change the consumption pattern. The lifestyle of the rich segment puts an immensely negative effect on society. This also results in the unavailability of resources at decent prices for the poor section of the society.

Demographic dynamics and sustainability

Here the demographics was discussed that we are concerned about our growing population. As the population keeps on growing and when that is combined with the unsustainable pattern it ultimately would result in damaging our planet and it will be irreversible at some point. There is an absolute need for comprehensive and dynamic policies that are in touch with the changing demographic pattern. Such policies must be focused on turning the unsustainable growth to a sustainable one and it shall benefit the earth’s environment. There is also a need for finding a newer and better alternative to natural resources because the world’s population will exceed 8 billion by the year 2020 and it certainly means the demand would be higher and supply will be lower.

Promoting and protecting human health

Health and development are connected with each other. A healthy country will develop faster than an unhealthy one. But the lack of development is leading to bad health. The causes are numerous but some of the bigger ones are growing population, inequitable distribution of wealth, lack of development and awareness and more. WHO shall coordinate with each member state and help them lay down new policies regarding the health and development of the citizens of their countries. On the other hand, countries should at least provide primary healthcare to all its population and control communicable diseases. The government shall provide financial aid and also all necessary help to non-government or volunteering programs that are helping out sick people or creating awareness. There is an imminent need for development in the health sector of many countries and that shall be taken care of as well.

Promoting sustainable human settlement development

So the United Nations have divided countries on two bases and that is developed countries and developing countries. As a result of that, the United Nations have laid down different policies and measures for developed countries and developing countries. Due to the high level of industrialisation in developed countries, the global ecosystem is suffering and it is mis-balancing the scale. On the other hand, developed countries lack investment and economic development and due to this, there has been an automatic constraint in the country’s development. To tackle this, the United Nations introduced the enabling method. Under the enabling method or the enabling approach the developed countries and give assistance in the form of investment or research to the developing countries. Also, both the developed countries and the developing countries shall improve and manage the human settlement and lay down policies for sustainable use of land and environmental resources.

Integrating environment and development in decision making

The government of many countries do not inculcate the environment when they are making any policy, planning or any management plan. The environment is separated from the economy when such policies are being made and this is without a doubt destroying our ecosystem. Even a little consideration for the environment in decision making is not enough and that is why the governments of every country shall integrate the environment whenever they make any new policy. There is a need for a new institutional structure that will focus and ensure integration of environment in development planning or policy.

Section II: Conservation and management of resources for development

The population will keep on increasing and that is a hard fact. There is an utter need for conserving and properly managing the natural resources of the earth. There are many resources of the earth which are very limited and with time they will get exhausted and humans will be left with nothing. Siberian tiger and dodo birds have already gone extinct and there had been a massive amount of deforestation. So it is safe to assume that humans lack management when it comes to conservation of the environment and our biological diversity. The way to tackle all of this is simply installing new legal mechanism and laws in the country that will make it an obligation for the citizens and the government to conserve our natural resources before they become nil. Also, there is a need for research for a newer and renewable form of energy which will make it viable for humans to use such resources without the worry of them going extinct. There is also a need to protect animals so that the food chain remains balanced and our bio-diversity is not destroyed.

Section III: Strengthening the role of major groups

There is an absolute need to integrate women in all developmental activities. The Nairobi Forward-looking Strategies for the Advancement of Women is needed to be implemented in our society. The need for increasing the section of women involved in making policy or decision is an absolute necessity as well. The other groups that also need to be considered are the children and youth. It is also a requirement for integrating youth to participate actively in the decision-making process because it is the youth that is the future generation and any long term policy will affect them more than it would affect elders who are making such policy. So there should be a considerate amount of contribution from the youth in making of any policy. With the modernisation of our world, we must not forget about the indigenous people and their community. They are the original inhabitants of the land and they share a special bond with such land. They should be given the ability to participate fully in policies that are made regarding their lands because it is their right. Refusal to include them is nothing less than a violation of human rights.

Section IV: Means of Implementation

There is a need for transfer of technology which is environment friendly. Such transfer will assist in a better form of sustainable development in our society. Along with such transfer of resources, there is a need for science for sustainable development. Scientists are already improving their ideas behind climate change, rates in resource depletion and more. But such science can also teach us the way through which we can develop new long term strategies related to sustainable development and conservation of resources. Finally, there is a need to create awareness among the people, promoting education and imparting training to the general masses of people so that we can have a better sustainable lifestyle and development and we can preserve our biodiversity. 

Rio Declaration

There was a conference that took place in Rio de Janeiro in the year 1992. The conference went from 3rd June to 14th June and the conference laid down few principles upon which Agenda 21, Rio +5, Rio +10, Culture 21, Rio +20, Sustainable Development Summit and Agenda 2030 is based on and those principles are as follows:

• Human beings should be concerned about sustainable development and every human is eligible for a better life.
• States have the right to exploit their own resources and it is the responsibility of States to ensure that their exploitation does not harm the environment of any other State.
• Environment protection shall be integrated into any new policy of a country.
• Least developed countries and poor countries shall be given required help and they shall be given assistance in their time of need.
• There shall be international co-operation among States for the protection of the environment and to seek a sustainable development of resources.
• To achieve such sustainable development, the State shall remove all unnecessary practice which degrades our environment.

Criticism

Agenda 21 faced many criticisms when it was introduced in the Rio Declaration in the year 1992. Especially in the United States, the people opposing Agenda 21 had to say that Agenda 21 is a means to force people out of their homes and cities. The SDG or the Sustainable Development Goals were also criticised for the lack of having any fundamental priorities and having too many goals and objectives.

Another criticism was that there was a lack of obligatory laws and most of the laws were left upon the discretion of the member state countries and hence this made the whole of Agenda 21 and the Rio Declaration weaker.

Conclusion

Both the Kyoto Protocol and Agenda 21 were dynamic in nature and they identified that our environment needs protection. But the fact that both of these plans lacked proper guidance and planning and development goes on to show that we are in need of better policies which are clear and binding upon countries.

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This article is written by Sparsh Mali, a fourth-year law student at the School of Law, UPES, Dehradun. The article talks about the Hierarchy & Jurisdiction of The Indian Court along with the functions of the judiciary.

Functions of Judiciary

• Interpretation of Law: The primary function of the judiciary is to interpret the law with the application of the principles of custom, statues and execute them to specific issues or cases as per the requirement. The function of the Judiciary is not settled to interpretation but it also applies principles of justice, equity and morality to solve the case in the absence of any law related to the dispute.
• Custodian of the Constitution: The judiciary acts as the guardian of the constitution in our country and especially where there is a federal government. The constitution is the supreme law of the land, thus, it is the duty of the judiciary to protect the Constitution. The judiciary also has the power to declare any law as unconstitutional passed by the legislature if it is inconsistent with the supreme law of the land. The Supreme Courts of the U.S and India are also empowered with the power of judicial review.
• Guardian of Civil Liberties: The judiciary is the guardian of civil liberties of the citizens and people of the country. It protects individual liberty by imposing sanctions on those who try to dilute them. It also protects the people in the country against arbitrary and unlawful action of the government. The Constitution of India under Article 32 & Article 226 has made the Supreme Court and High Courts respectively as the guardian of fundamental right against their violation by the State. If the state violates the rights of the people in the country then the courts may issue injunctions to prevent such violation by the means of issuing writs such as Habeas Corpus, mandamus, etc.
• Legislative Functions of the Judiciary: Laws are not so comprehensive and exhaustive which covers all the details of every case. Thus, the Courts find the exact meaning of the law and expand the details to apply general principles of justice and morality.
• Advisory Functions: The Courts also acts as an advisory body, which gives its opinions to executive and legislature bodies In our country the President may take any advice from the Supreme Court on any question of Constitutional law.
• Administrative Functions: The Supreme Court and High Courts also function as an administrative body as they are empowered to appoint their officials and supporting staff. In this way, the judiciary also performs an administrative function.
• Miscellaneous Functions: Judiciary performs miscellaneous functions like the granting of probate and appointment of receivers, guardians and trustees etc., they may also grant licenses, and can perform other functionaries etc.
• To Conduct Judicial Inquiries: Judges are very often called upon to lead the Enquiry Commission, constituted to enquire some serious incidents which are caused by errors or omissions of an error on the part of the government or some public servants.
• Power to get its Decisions and Judgements enforced: The power of the judiciary is not so limited to deliver judgments and decide the matter before it, but it also has the power to enforce their decision. It can direct the executive to enforce its decisions.

Types of Court under the Indian Judicial System

• Criminal Courts
• Civil Courts
• Tribunals

7 Types of Court in India

• Supreme Court- The Supreme Court of India is the highest judicial forum or the highest appeal court in the Indian Judiciary System which is also known as Apex Court of the Country and it is established under Part V of the Constitution of India.
• High Court- The High Court is the highest judicial forum or the highest appealing court of any state or union territories assembled in the Indian Judiciary System and it is also known that High Court has the highest jurisdiction above all the court in India.
• District Court and Additional District Court- The District Courts of India are established by the State Governments for every district or for a group of the district on the basis of a number of cases, the population of the defined area. These courts are subordinate of the High Court of the State and are in full control of respective High Court of the State to which the district concerned belongs. The district court is presided over by one District Judge and he can be assisted by a number of other Additional District Judges and Assistant District Judges depending on the workload. The Additional District Judge and the court presided have equivalent jurisdiction as the District Judge and his district court.
• Courts of Judicial Magistrate of Second Class– These are on one of the lowest hierarchies of the Criminal Court structure in India. Section 11 of CrPC, talks about the establishment of JM- 2, that a Court of Judicial Magistrate of Second Class may be established by the State Government in consultation with the respective High Court of the state at any place in the district. Generally, the post for Judicial Magistrate 2nd Class is dissolved within 6 months by the newly appointed officers unless the concerned High Court of a State reduces or increase the time period of 6 months.
• Courts of Judicial Magistrate of First Class- These are also among the lowest level of the Criminal Court in India. According to the Section 11 of the Criminal Procedure Code, a Court of Judicial Magistrate of First Class may be established by the respective State Government in consultation with the High Court of the respective state at any place in the district where the State Government thinks that there is a need of the concerned court. According to Section 15 of the CrPC, a judicial magistrate of all class is under the general control of the Sessions Judge and is subordinate to the Chief Judicial Magistrate.
• Court of small causes for metropolitan cities- In Indian Judicial System the Small Causes Court is responsible for deciding the matters related to civil cases and these courts are responsible for cases relating to tax, property disputes (which relate to rent and leave and licence) and other such small cause cases. In India, such Courts are established under the Presidency Small Cause Courts Act-1882. As per the provisions of this Act, the State Government may establish a Court of Small Causes at any place within its territory.
• Munsif’s court or court of sub-judge III class- District Munsiff Court is considered as the lowest court of Indian Judicial System which only decides the cases related to civil matters. They are generally under the control of the District Courts of the respective district. The appeal against these courts is entertained by any courts which are at least one rank superior to them but are inferior to the District. 

Indian judiciary flow chart [1]

Civil Court Meaning

A Court is said to be Civil Court when the Court only handles legal disputes or matter that are not associated with any crimes. Civil courts handle disputes between individuals and not between the State, thus, matters related to businesses, including family law cases like divorces or adoptions, business and contract disputes, personal injury cases, and property disputes etc., all such disputes are adjudicated by the Civil Court. In civil cases, there is no involvement by the government which means the plaintiff has to bring the suite itself before the court against the defendant.

Criminal Court Meaning

A Court is said to be Criminal Court when the Court only handle the legal disputes or matter that are associated with criminal matters or charges. In criminal court, the government files a case against the person who committed the crime. In criminal trials, the accused is called the defendant and the government has to prove that the defendant is guilty of his act beyond a reasonable doubt.

Jurisdiction of Courts in India

Both Civil Courts and Criminal Courts have been categorised on the basis of jurisdiction related to-

• Subject Matter Jurisdiction: The general meaning of ‘Subject Matter’ is the type of matter the specific Court deals like if it is a Civil or Criminal, if the disputed matter is related to marriage, tax, fraud, criminal acts etc., It can be defined as the authority of the court to hear cases of the particular type of specific subject matter.
• Territorial Jurisdiction: Every court has its geographical limits to what they can exercise their jurisdiction, which means that the court can only hear matters related to their area and not of other areas which are beyond their jurisdiction limit.
• Pecuniary Jurisdiction: Pecuniary Jurisdiction is related to money or the valuation of dispute in terms of money, and the court can try only those cases which they are authorised to sentence the damages to the victim like different courts of the Consumer forum.
• Appellate Jurisdiction: It refers to the authority of a court to review a case that has already been settled by a court inferior to them. Such type of jurisdiction is generally vested in High Courts and Supreme Courts.

Jurisdiction of Supreme Court

The Supreme Court of India has different jurisdiction to administer justice such as:

• Original Jurisdiction: The original jurisdiction is also known as the writ jurisdiction of the Supreme Court of India. Article 32 of the Indian Constitution grants every citizen the right to seek constitutional remedy directly in the Supreme Court of India. Any person can approach the Supreme Court of India for seeking remedy against the violation of his fundamental rights. Any matters related to fundamental rights or matters related to enforcement of fundamental rights come under the original jurisdiction of the Supreme Court of India as it is well said that the Supreme Court is the highest interpreter of the Constitution. The Supreme Court is not only subjected to the original jurisdiction only matters related to the fundamental rights as Supreme Court also has the original jurisdiction in matters or disputes related to-

• Government of Indian and one or more states.

• Government of Indian and State on one side and State on another side.

• State and State.

The original jurisdiction of the Supreme Court only comes with the law of fact on which the question depends if there is any legal rights which are court have to determine.

• Appellate Jurisdiction of Supreme Court: It is the Highest Court of appeal, decrees or orders passed by the Supreme Court has effects throughout the country. The cases which the Supreme Court entertains which comes in the form of appeal against the judgment of the lower courts, then, such jurisdiction exercised by the Supreme Court is known appellate jurisdiction. The fundamental rule of approaching the Supreme Court is to get a Certificate form, from the High Court where the Court will state that the case involves a substantial question of law as to the interpretation of the Constitution and such interpretation can only be done by the learned Supreme Court to administer the Justice. And if the High Court refuses to give such certificate to the person who is affected by the decision of the High Court or who is not satisfied with the decision of the Supreme Court; then the Supreme Court can grant special leave to appeal and such cases are only admitted if the court is satisfied with substantial question of law as to the interpretation of the Constitution.

Every matter that involves the interpretation of the constitution not matter if it is a civil, criminal or any other proceeding, the Supreme Court is the final authority to elaborate the meaning and interpret the Constitution of India.

• Advisory Jurisdiction: By virtue of Article 143 Supreme Court also enjoys advisory jurisdiction as the Article 143 empowers the President to consult Supreme Court and along with such power the President is not bound, to listen, to the opinion made by the Supreme Court. Usually the president consult with the Supreme Court only when he feels that a question of law or fact has arisen or is likely to arise and the question is of such a nature and of such public importance that he cannot take the decision alone, hence, the advice of Supreme Court is important in such cases.
• Review and Revision Jurisdiction of Supreme Court: Article 137 empowers the Supreme Court to review and revise its own decisions.
• Special Leave Petition: Special leave petition is the constitutional power vested in the Supreme Court by Article 136, where, the Supreme Court in its discretion, can grant special leave to the appellant against any judgment, decree, sentence or order passed by any court in the country.
• Court of Records: Court of the record is a principle which explains that all the cases decided by the Supreme Court are to be recognised as precedents and all the subordinate courts to make reference to the judgments passed by the Supreme Court. The judgments and inferences of the Supreme Court are to be recorded for perpetual memory and testimony and these records have evidentiary value and cannot be questioned when produced before any court. In India, both Supreme Court and High Courts act as Courts of Record.

Jurisdiction of High Court

• Original Jurisdiction: The High Court also enjoys the power to entertain the dispute in the first instance as by the means of original jurisdiction. Like the Supreme Court, the High Court also has the same original jurisdiction in matters of enforcement of fundamental rights under Article 226. Apart from such matters the High Court also has the original jurisdiction in the matters related to maritime law or admiralty jurisdiction, will, marriage, divorce, company laws and contempt of court. It also has similar jurisdiction in matters related to the election of MPs and MLAs.
• Writ Jurisdiction: Article 226 of the Indian Constitution empower the High Court to enforce writ and listen to all the matters related to the violation of fundamental rights in the way of issuing the writ. The only difference between the jurisdiction of Supreme Court and the High Court is that the Supreme Court can only issue the writs for the enforcement of fundamental rights but the High Court has the more jurisdiction over the writ as it can issue the writs for the other matters also.
• Appellate Jurisdiction: Like the Supreme Court appellate jurisdiction, the High Court also enjoys the appellate jurisdiction above all the courts subordinate to it within the respective state in both civil and criminal matters.
• Supervisory Jurisdiction: Under Article 227 of the Indian Constitution the High Court has to power above all the courts and tribunals within the state where the court is situated. Along with it also has the power to transfer the cases from one court to another for administering best and proper justice.

Jurisdiction of District and Additional District Court

• The District Court and Additional District Court exercise the same jurisdiction either being original or appellate jurisdiction in both the matter of civil and criminal. The territorial and pecuniary jurisdiction in civil matters is usually determined by the respective state where the court is situated. The jurisdiction of the criminal matter is determined on the applicability of the uniform statue i.e., the criminal procedure code. The district court or the additional district can pass any punishments authorised by law but in the case of sentencing the death, the punishment has to be confirmed by the respective High Court.

• Jurisdiction of Subordinate Court

1. The Court of Chief Judicial Magistrate may pass any sentence authorised by law except imprisonment for more than 7 years or life imprisonment or the death penalty to the offender of the law.
2. The Court of Judicial Magistrate 1st Class may pass any order or punishment authorised by the law except imprisonment exceeding 3 years or fine up to Rs. 10,000 or both.
3. The Court of Judicial Magistrate of 2nd class may pass any order or punishment authorised by the law except imprisonment exceeding one year or fine up to Rs. 5,000 or both.
4. The Court of Chief Metropolitan Magistrate has the same powers as of the Court of Chief Judicial Magistrate has. 

The post Hierarchy of courts appeared first on iPleaders.

This article has been edited by Mansi Bathija and written by Ayushi Yadav, a fourth-year law student from Banasthali Vidhyapith, Rajasthan. In this article, she has discussed the agricultural and non-agricultural income.

Introduction

Agricultural income is any income that is earned from any rent or revenue from a land or a building, which is used for an agricultural purpose. Agricultural income is exempt from income tax as per section 10(1) of the Income Tax Act, 1961. The Central Government has not any power in relation to this, but the State Government can collect agricultural income from other sources. But when agricultural income can be non-agricultural income, we will discuss it here.

Meaning of Agricultural Income

Agricultural income is defined under Sec. 2(1A) of the Income Tax Act, 1961.

Agricultural income is any rent or revenue by means of cash or in-kind, derived from a land, which is used for an agricultural purpose and land should be situated in India.

Income from agricultural should be produced by a cultivator or a rent receiver of that produce in-kind, which can be fit to take that into the market. 

The income should be derived from the sale by a cultivator or a rent receiver of that product which is produced or received by him, no process can be performed other than the process to render it fit for the market. 

Income which is derived from the building should follow some conditions:

1. The building should be situated in India;
2. It should be occupied by a cultivator or a receiver of rent-in-kind.
3. In the connection of the land of a cultivator or a rent receiver, the building required to be as a dwelling-house, store-house or other outbuildings. 

Agricultural Income has been exempted from Income Tax under Sec. 10(1) of the Income Tax Act, where it has been given that, in computing, the total income of a previous year of a person whose source of income is agriculture will not fall under the category of total income. The burden of proof that an income fall under this category is on the assessee.

Sri Ranganatha Enterprises v. CIT [1998] 232 ITR 568 (kar.)

In this case, the Court held that the burden lies on the assessee to prove that the income derived by him is the agricultural income for which he is claiming an exemption under Sec. 10(1) of the Income Tax Act. 

Necessary conditions for income to be Agricultural income

There are some necessary conditions which are required for income to be  Agricultural income –

• Income should be derived from land 

The very first requirement is the income should be derived from land not from any other assets. Land can be owned or occupied by a cultivator who produces on that land, or a rent receiver of that produce. Land can be farming land or a building that should be occupied or owned by a cultivator or a rent receiver. That building or farmhouse should be on the same land and used as a dwelling-house, store-house or other outbuildings.

Income should be in the form of rent or revenue, 

Rent is payment, it can be in cash or in-kind, by one person to another in respect of a grant of right to use that land. 

Revenue is used in a broader sense, In the case of Durga Narain Singh v. CIT [ (1947) 15 ITR 235] 

“Revenue” covers income other than rent. Mutation fees extracted from tenants upon their succeeding to occupancy holding are revenue derived from land.

Revenue can be derived from land only if lands are an effective and immediate source of income and not the indirect and secondary source of income. Where income derived from indirect source then it will not be considered income derived from land. 

We can understand this with the help of the case Bacha F. Guzdar v. CIT,

In this case, a dividend paid by a company out of its agricultural income is not revenue derived from land, as an effective and immediate source of income is shareholding and not the land.

Let’s discuss this situation with some illustrations-

1. If a person X owns the land and give it to Mr.Y for rent for agricultural purpose. Mr.Y uses that land for growing wheat. Is it taxable or not?

No, it is not taxable because here income derived by a cultivator and a rent receiver is as per the condition.

• If a person X owns a building and give it to Mr.Y on rent for Agricultural Purpose. But Mr.Y uses that building for the non-agricultural purpose. What will be the result?

This will be taxable because the income derived here is other than the agricultural purpose.

• Land must be situated in India

Another condition is the land must be situated in India, whether situated in urban areas or rural areas. The areas are also mentioned in Sec. 2(1A)  of the Income Tax Act. The area where land revenue can be collected by officers of the government: 

1. If it is situated in an area which comes within the jurisdiction of the municipality or cantonment board where the population is not less than ten thousand.
2. Any area within the distance,
3. Not being more than two kilometers from the local limits of any municipality or cantonment board and which has a population of more than ten thousand but not exceeding one lakh.
4. Not being more than six kilometers from the local limits of any municipality or cantonment board and which has a population of more than one lakh but not exceeding ten lakh.
5. Not being more than eight kilometers from the local limits of any municipality or cantonment board and which has a population of more than ten lakh.

Agricultural income from foreign countries will be considered as income from other sources and it will not be exempted under Agricultural income. 

E.g.- A person owns the land in Africa and give it to Mr. A on rent for the Agricultural purpose. Now, the income which is earned by that person will consider being an income from other sources and will include in the total income.

• Land must be used for basic operations of Agriculture 

For exemption under agricultural income, the operation must be related to agricultural. That means land should be used for the agricultural purpose.

Now, what can be understood by the term ‘Agricultural Purpose’. In the case of CIT v. Raja Benoy Kumar Suhas Roy [1957] 32 ITR 466, the Supreme Court laid down the principles in regard to the term ‘Agriculture’ and ‘Agricultural Purposes’.

SC divided operations into two types-

• Basic operation.- Basic operation includes the expenditure of human skill and labor upon the land itself, merely having an agricultural land will not constitute agricultural purposes. Some operations like tilling of land, sowing of the seeds, planting, etc.   
• Subsequent operation.- Subsequent operations are performed after the produce sprouts from the land. Like weeding (removal of wild plants), digging the soil around the growth, removal of undesirable undergrowths, removal of the crop from insects and pests, cutting, harvesting, rendering the produce fit for the market etc.. Subsequent operation must be in continuation of basic operations, mere performance of these activities on the land will not constitute agricultural operation.

If this integrated activity is done on the land then it can be said to be “Agricultural purposes” and the income derived from these activities said to be “Agricultural income”.

Agricultural Activity does not merely include the production of foods and grains. It includes all products from the performance of basic and subsequent operations on land. We can not confine it to the production of food and grains for human consumption, it can also include products for trade and commercial assets like cotton, flax, jute, indigo, etc. and it would also include forest products like timber, sal, tendu leaves, and all those forest products which are used for commercial purpose.

In support of the Agricultural operation, there is another case K. Lakshmanan Co. v. CIT [1999] 239 ITR 597 (SC),

In this case, SC held that Sec. 2(1A)(b) of the Act does not contemplate the sale of commodity different from what is cultivated and processed and where the assessee is growing mulberry leaves, feeding them to silkworms and obtaining silk cocoons, income from the sale of silk cocoons is not an agricultural income.

• Income from a Nursery

Income from a nursery is always exempted from total income.

H.H. Maharaja Vibhuti Narain Singh v. State of Uttar Pradesh [1967] 65 ITR 364 (All.)

In this case, the Hon’ble Allahabad High Court held that income from a nursery is not an agricultural income unless maintained by a farmer as an aid or necessary adjunct to the primary process of agriculture, for example, paddy nursery, nursery of tomato plants. Here assessee used the nursery for ornamental plants which can not be considered an adjunct to the primary agricultural process.

In the case of CIT v. Saundarya Nursery [2000] 241 ITR 530 (Mad.), the Madras High Court held that nursing activities involve carrying out of several operations on land before the sapling were transplanted in a particular pot and then put them in shades for further operation and growth. Therefore, the income from the nursery will consider being an agricultural income. 

Rent or Revenue from Land

Rent or Revenue is a kind of income derived from agricultural income by the landlord or the owner of the land. 

Rent can be in cash or in-kind. E.g.- if a person owns the land and gives it to another person on rent for agricultural purposes @ Rs. 5,000, then this amount of income considered to be rent from land in cash which is a part of agricultural income.

 Another example of rent from land is, 

A person owns the land and gives it to Mr.B on rent for agriculture, a tenant will give 1/3rd part of the whole wheat grown to the landlord, this is rent from land in-kind. 

Revenue is a kind of profit received from the land. Let’s say, a landowner asks a farmer to grow wheat and 50% of its profit will be credited to the landlord. This profit is revenue from land.

Rent or revenue derived from land should fulfill three essential conditions 

1. Rent or revenue should be earned from land.- To receive rent or revenue, the most important point is that it should be earned from land. Rent or revenue received from assets other than land will not be considered as income derived from land. 

Revenue which is received by the landlord should be from the direct and immediate source. If the land is an indirect and secondary source then revenue will not be considered to be agricultural income. In the support of the statement, there is a case- 

Pratap Singh v. Province of Bihar [1949] 17 ITR 202 (pat.) 

In this case, the Malikana allowance paid by the government under a legal obligation to an owner, dispossessed of his land, is not revenue derived from land, as the immediate source of income is the government’s legal obligation to pay compensation and not the land.

• Land should be situated in India .- The Second essential condition is to be land should be situated in India, otherwise, it will be considered to be income from other sources and will not include in agricultural income. Land can either be in a rural or urban area. Some conditions are given under Sec. 2(1A)(c) of the Income Tax Act in regards to the Area which is considered to be land.
• Land should be used for agricultural purposes.- The land should be used for Agricultural purposes. We have discussed earlier the meaning of the term “Agricultural Purpose” with the help of case: 

CIT v. Raja Benoy Kumar Suhas Roy [1957] 32 ITR 466, where SC laid down the principles of basic operation and subsequent operation.

Mere connection with land will not be sufficient for Agricultural Purpose. There should be activities in connection with agriculture. Activities like dairy farming, poultry farming, cheese and butter making, etc. are not considered to be agricultural activities. 

Illustrations –

1. A landowner receives rent in-kind from a tenant who grows wheat on that land, now the landowner sells it in the market @ Rs. 20000. This income is derived from agricultural operation.
2. A landowner receives the rent of 1/3rd of whole wheat grown in his land. And he uses that wheat in making biscuits and sells it in the market. Here, this activity is not considered to be an agricultural operation because that income is business income.

Income derived from Agricultural produce and marketing processes

Any income derived by a cultivator or receiver of rent-in-kind from agriculture by the sale of agricultural produce on which necessary operations( maybe or may not be needed)are carried on to render the produce fit for consumption and taking it to market is called as agricultural income. Such income is exempt from taxation. However in case of operations performed are not in nature as mentioned above, income has to be separated so as to compute tax on non-agricultural income. The operations mentioned above are called as agricultural or marketing operations.

There are two conditions which must be satisfied for marketing operation;

1. The agricultural process must be performed by a person employed by a cultivator or a receiver of rent-in-kind.
2. That product should be fit to be taken to market.

There are some ordinary process employed to render the produce fit to be taken to market like- thrashing, winnowing, cleaning, drying, crushing, boiling and decanting, etc. if the income derived from these marketing process will be considered as agricultural income.

If the marketing process is performed on products that can be sold in the market in its raw form without performing any operation which makes it fit for marketing, then that income will be considered as partly agricultural and partly from a business.

Brihan Maharashtra Sugar Syndicate Ltd. v. CIT [1946] 14 ITR 611 (Bom.) 

In this case, assessee carries the business in the manufacture and sale of sugar, and then he owns a sugarcane farm and utilized this in the production of sugar. The court, in this case, held that the process of converting sugarcane into sugar would not be agricultural process and the income derived from this would not be agricultural income. 

Income from Farm building

Income from farm building which is derived from Agricultural operation is exempted from tax. But to satisfy that property is used for agricultural purposes there are some essential requirements that need to be fulfilled. Those conditions are:

1. The building must be occupied by the cultivator or the receiver of rent-in-kind;
2. The land must be situated in India and used for agricultural purposes;
3. The building which is used for agricultural operations by the cultivator or the rent receiver must be as a dwelling house, storehouse.
4. The land is assessed to land revenue or local rates or land is situated in rural areas.

Rural Areas for the above purpose are given under Sec.2(1A)(c)(ii) of the Act, any area not situated:

1. within the jurisdiction of municipality or cantonment board and where the population is not more than ten thousand.
2. within 2km from the local limits of municipality or cantonment board, where the population is more than 10000 but less than 1 lakh.
3. Within 6km from the local limits of municipality or cantonment board, where the population is more than 1 lakh but less than 10 lakh.
4. Within 8km from the local limits of municipality or cantonment board, where the population is more than 10 lakh.

The use of the building other than farming activity will not be exempted under Income Tax. E.g.- If an owner gives that building on rent for residential purpose then income derived from that building will not be exempted.

Illustrations 

1. Mr. W owns farmland and there is a building attached to that land. Mr. W gives it on rent to Mr. H @ rs.4000(rs. 3500 for land and rs. 500 for a house). Income received by Mr.W will be exempted here because the land is used for an agricultural purpose and the building is attached to the land and used by cultivator as a dwelling house.
2. A person owns a building in a particular city and gives it on rent to Mr. X who is a farmer. Mr. X uses it as a dwelling house. Is it taxable or not? In this case, income is taxable because the building is not attached to any land, so it is not an agricultural income and taxable.
3. Mr. D owns the land and gives it to Mr. A for Agricultural operation. Mr. A uses that land for Dairy Farming. Agricultural income will not be exempted because dairy farming is not an agricultural activity.

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When Agricultural income consists of both Agricultural and non-agricultural income

Income which is partially agricultural and partially non-agricultural is determined under rules 7, 7A, 7B and 8 of Income Tax Rules.

Rule 7.- under this rule, income which is partially agricultural income and partially income chargeable under the head  “profits and gains of business” then in determining chargeable income, the government will determine the market value of agricultural produce which is raised by the assessee or rent received by him and which has been utilised as a raw material in a business then only that amount shall be deducted and no further deduction shall be made.

Rule 7A.- Income derived from the sale of centrifuged latex or Cenex or latex-based crepes (such as pale latex crepe) or brown crepes (such as estate brown crepe, remilled crepe, smoked blanket crepe or flat bark crepe) or technically specified block rubbers manufactured or processed from field latex or coagulum obtained from rubber plants grown by the seller in India in the first instance, be computed as if it were income derived from business. 35% of the income shall be deemed to be income from business and shall be taxable.

No deduction shall be made from the income in respect of the amount of subsidy if allowance made in respect of the cost of plating rubber plants in replacement of dead plants or become permanently useless in an area already planted if such area has not been abandoned.

Rule 7B.- income derived from the sale of coffee grown and cured by the seller in India shall be computed as income derived from the business. 25% of such income shall be taxable.

Income derived from the sale of coffee grown, cured, roasted and grounded by the seller in India, with or without mixing chicory or other flavoring ingredients, shall be computed as income derived from the business. 40% of such income shall be deemed to be taxable.

No deduction shall be made from the income in respect of the amount of subsidy if allowance made in respect of the cost of plating rubber plants in replacement of dead plants or become permanently useless in an area already planted if such area has not been abandoned.

Rule 8.- the income derived from the business of growing tea leaves and manufacturing tea shall be computed as it was derived from business and 40% of the income shall be deemed to be taxable under the Act.

CIT v. AFT Industries Ltd. [2004] 141 taxman 433 (cal.)

The cess levied under the West Bengal Rural Employment Production Act, 1976 and the West Bengal Primary Education Act, 1973 is permissible as a deduction in computing the income from the business. The cess does not fall under the prohibitory item of deduction.

CIT v. R.M. Chidambaram Pillai [1977] 106 ITR 292 (SC) 

SC held that salary and interest received by a partner from a firm growing leaves and manufacturing tea are taxable only to the extent of 40% and the balance of 60% income shall be treated as agricultural income. 

No deduction shall be made from the income in respect of the amount of subsidy if allowance made in respect of the cost of planting bushes in replacement of dead bushes or become permanently useless in an area already planted if such area has not been abandoned.

Computation of Tax on Non-Agricultural Income when Income has Agricultural Income also

Agricultural income is exempted from taxation, but in some conditions, the Income Tax department laid down a way for indirect tax from such incomes which we have discussed. This method called as partial integration of agricultural income with non-agricultural income. According to this method, higher rates of taxes imposed on non-agricultural income. There are some requirements for the applicability of this method:

1. The taxpayer should be an individual, a Hindu undivided family, a body of an individual, an association of person or an artificial juridical person.
2. The Non-agricultural income of the taxpayer exceeds the maximum amount non-chargeable to tax. Non-agricultural income should exceed the amount of rs.2,50,000 for the individual below than 60 yrs. of age and rs.3,00,000 for the individual above than 60 yrs of age. 
3. Agricultural income should be more than rs. 5000.

Calculation of Tax is done in the following manners

To calculate the total tax payable, there are four steps as follows:

Step 1: – Add agricultural income to non-agricultural income and calculate tax as if this is total income.

Step 2: – Add agricultural income to the maximum amount non- chargeable to tax and calculate tax as if this is total income.

Step 3: – Deduct tax computed in step 2 from tax computed in step 1. The amount so computed is the actual tax payable.

Step 4: -Add surcharge, education cess, and secondary and higher education cess.

Examples

1. Let’s say, A person of age 30 yrs  Mr. A has a business of manufacturing and income from that business is Rs. 5,00,000 and his agricultural income is Rs. 6,00,000. How much tax Mr. A will pay.

Step 1.- his Non-agricultural income + Agricultural income, i.e. 5,00,000+6,00,000= 11,00,000, now, tax on rs.11,00,000

             1,12,500+30% of (total income – 10,00,000) = 1,42,500

Step 2.- 6,00,000+2,50,000 (i.e., agricultural income+exemption limit)= 8,50,000, now, tax on 8,50,000

             25000+20% of (total income – 5,00,000) = 95,000

95,000 is a taxable amount from total income

Step 3.-  deduct tax computed in step 2 from step 1, i.e.,

               1,42,500 – 95000= 47,500

Rs. 47,500 is the amount.

Step 4.- add education cess, 2% of income tax, i.e., 950

              47,500+950 = 48,450 is the actual payable tax.

2. An individual of the age of 22 yrs., his net agricultural income is rs. 86,000 and non-agricultural income is Rs. 12,65,000. He contributes Rs. 40,000 towards Public Provident Fund. calculate the amount of tax payable by him.

Step 1.- agricultural income + non-agricultural income,i.e., 

              12,65,000+86,000 = 13,51,000 (deduct the amount of PPF) = 13,11,000

           1,12,500 + 30% of (total income – 10,00,000) = 2,05,800

Step 2.- agricultural income + exemption limit, i.e.,  86000+2,50,000 = 3,36,000

                5% of (3,36,000 – 2,50,000) = 4300

Step 3.- deduct 205800 – 4300 = 2,01,500 is the actual amount.

Step 4.- add education cess 2% of income tax, i.e., 4,030

              Add secondary and higher education cess 1% of income tax, i.e., 2,015

             Actual amount of tax = (2,01,500+4,030+2,015) = 2,07,545. 

Conclusion 

Agricultural income is exempt from income tax but State government by indirect ways. There are so many methods and requirements for agricultural income as we have discussed. Any other process will compute it as partly agricultural income and partly non-agricultural income.

The post What is Agricultural Income and How is it Computed ? appeared first on iPleaders.

This article is written by Suryansh Verma, a 3rd year student at Dr. Ram Manohar Lohiya National Law University, Lucknow. In this article, he lays down certain tips for law students and testimonials for scoring high in exams as a Law Student.

Introduction

Law exams can be really stressful sometimes when it comes to the course content. 700 pages of long judgments, 1000 pages long textbooks are bound to make you stressed out. But, don’t worry! I am going to lay down certain tips in this blog post which are going to help you to help you in scoring high in the exams.

Sometimes, on entering the exam room, most students start panicking and hyperventilating on sight of the question paper. This might be because of the fact that sometimes there is a need to pass that very law subject or maybe you’re putting too much pressure on yourself in order to achieve a high percentage.

The words on the cover of the Hitchhiker’s Guide to the Galaxy are the best possible remedy when faced with such times i.e.

Don’t Panic

The life of a law student is filled with hardships. The reason is that this profession demands a lot of hard work, sincerity, and diligence. One needs to be extensively well read. If you are not well versed with the things which are necessary for you, you are definitely going to have a lot of difficulty in comprehending whatever you’re reading.

There are hundreds of sections and articles of statutes. Most of the law schools in India make their students mug up all of them. It gets quite boring after a point of time.

Besides mugging up the whole statues, there are hundreds of case laws in almost every statute which is quite difficult to learn.

An average student can sit for studying at a maximum stretch of four hours. This capacity depends and varies from student to student.

For a slow brain like me, even two hours seem to be an extremely long period.

One has to make their brain accustomed to the long studying hours for scoring high in exams as a law student. Even if he/she is studying for a small span of time, they should be really thorough with what they have read. Yeah, you don’t really have a choice here.

You have to mug up everything the same way you remember the lyrics of Bohemian Rhapsody.

Most of the students have a really short attention span. This becomes a bit problematic because they may experience a blackout while writing the examination. This affects their performance in the paper and hence they score really less.

Then you start questioning your ability, remember Ishaan from Taare Zameen Par? You might have dyslexia.

Why should one score high marks?

Scoring less in your papers in law school has a disastrous effect on the CV. Most of the firms these days before giving internships pay a great amount of attention to the pointers/CGPA scored by the applicants. A high CGPA also depicts the sincerity and hard work of a student. 

Scoring high does not mean that you’re a nerd.

It also comes in handy while sitting for interviews. It carves out a good impression on the interview panel. Thus, scoring high in exams while in law school is a necessity.

This article shall provide you with useful insights which one may consider while preparing for their exams.

Control your nerves and keep calm

The first and foremost tip is to calm yourself before and during the exam. Most of the students get so stressed out before the exam that they start getting nervous. Always remember that you’re not alone, feeling nervous before a law exam is completely normal and understandable. 

Just, don’t go all American Psycho over the paper.

Always remember that many of your fellow students feel the nervousness too. You can think of the nervousness as excitement because it is all in your brain. Throughout your preparation leading up to the exam, feeling excited indicates that you are motivated to achieve what you want. You want to learn effectively and give a good performance in the exam.

Implement simple steps to calm down your nerves and channelize your anxiety to do the contrary. Calming yourself may include studying continuously for long hours, and then taking a small break doing things which do not involve the subject. 

These small breaks may consist of taking a stroll around the campus, or the walk, watching a short episode of a light-hearted TV show such as F.R.I.E.N.D.S. or any activity which helps you to calm down and lay off that stress.

Oh! Don’t you remember the episode where Chandler goes on kissing everyone, even Joey, such a great laugh! 

Thus, in order to score high, you need to have control over your senses and make sure that you do not get distracted.

Never fall back from reading

This is one of the most basic tips that might come in handy for law students. Reading is the most essential activity throughout law school. A law student cannot survive those years of education without a reading habit. Law students have a reputation in the world for reading a lot. Every week you need to understand and learn what the law is.  

Ah! Personally, I hate reading. I’d love to read horror stories all day but then it is not going to make me pass my exams you know.

One must be ready to read anytime, anywhere and in any condition as well. You must do the reading of the courses thoroughly that have been assigned to you for the semester. Skimming over through the course content is not a very good option as you will not be able to achieve effective learning through that. 

For scoring high in exams, you need to have a deeper and thorough understanding of the subject. This can only be achieved by reading.

Always be updated with the content of the course. If you fall back once, you might never keep up again with it. 

It is like the latest episode of Game of Thrones where you were not able to follow it and then you end up lagging behind all of your friends.

Read at the time of the day when you are most alert. Also, read in a location where you will not get distracted from something or tempted to do something else. The more you read, the more knowledgeable you will be.

Besides gaining knowledge on the subject, reading helps you in various other ways. It gives you useful insights which might come in handy for your subject as well.

Yeah, like the number of people going mad doing law every year? No, I’m kidding. 

If you do not understand anything, read repeatedly. Do not give up on reading. It might get difficult sometimes reading those twisted statutes and case laws. It would be problematic for you to score high in the exams without understanding.

Even Ishaan from Taare Zameen Par understood everything after being taught twice or thrice.

Once you’ve developed a reading habit, you’ll be able to memorize quickly and efficiently. Reading daily improves your retaining power as well. It also helps you to comprehend things easily. Thus, reading is the most essential habit to formulate while being in a law school.

Always remember Rancho from 3 idiots and say to yourself All is well! 

Establishing a routine

“The secret of your future is hidden in your daily routine” – Mike Murdock

It is extremely necessary for a law student to follow a proper routine to score high. Creating and following a routine is important to law school success.

I’ve always failed at following a routine, asking you to do so is too much. Although, if you’re able to follow one, Oh! You could be like a sorcerer doing magic and achieving whatever you want in life.

By establishing a routine early on, you can control your stress levels and also be ahead of your classmates. Following the routine will also help you in managing your time efficiently as well. Include almost everything in your routine. The period of your study should be at that point when you stay the most alert and concentrated.

Routines help you attain discipline. You cannot survive law school without having a fixed routine. 

Milkha Singh would not have won so many medals without a routine.

A law school has a ton of activities to get involved in. Starting right from extra-curricular activities to sports events, nothing is left out. Thus, one needs to manage everything in a proper manner.

You’ll have a fixed duration of studying for a couple of hours. The other activities shall be managed in the same way as well. Chalking out the hours of study in the routine will not only help you to score well in the exams but also enable you to have proficiency on the subject.

A routine helps you to stay focused on your goals and can help you manage your workload as well. It is easier to say it, but it is difficult to stick to a routine most of the time. 

For this, include other people in your routine who might have the same goal as you do, participate in study groups of your interest or you may also have a reading partner. This will help you to be accountable.

Go to class

Maintaining that 75% of attendance sometimes becomes a pain. 

Most of the times, professors cover some material in the class that you do not come across reading, so failing to attend the classes will put you at a disadvantage when you take the final exam. 

Instead of the bookish knowledge, professors in the answer scripts look for what they taught in the classroom. 

If you had gone to class, and you’ve mentioned that thing, you will be at an edge over other students. You will definitely end up scoring high marks in the exam.

Yeah, just like Messi scores goals like a boss! 

Moreover, you will also get debarred from that semester if you do not fulfill the minimum attendance required for sitting in the exams.

Be attentive in class

Physical attendance in the class just won’t help you to score high in exams. Being mentally present and staying attentive will. 

I have noticed this in my classes that students who are responsive to professors score incredibly well in their end-term exams. 

Students who sit on the last bench of the class sometimes flunk in the subject as well. 

No, students on the last benches are not the most creative minds. 

Most of the students spend their time in class using their mobile phones playing games or shopping online. 

I have had a personal experience with this, students around either playing PubG mobile or browsing through Amazon.in. Instead of that, you could browse through LawSikho and see the courses that they provide. Those courses will definitely help you in scoring good marks by giving you insights about the field. 

If you really care about your future, stop using mobile phones in the class and start paying attention to that learned man teaching you.

Be responsive and participate in the class.

Just being attentive and listening to what the professor is speaking will not help your case. You also need to participate in the class by asking questions and clearing your doubts as well. 

You have to keep pinching the Professor. Never refrain from asking any type of question.

Students learn well when they are actively engaged in the learning process. If you’re timid and hesitate in asking questions in class, go to their chambers and ask them there. 

Always make notes

This is also one of the most important things to do while studying for law exams. The content in the subjects is so diverse that you might not be able to remember all of it. Thus, make notes of those things which you think are relevant and will help you in scoring high in the exams.

I’m not asking you to be a nerd of course, but yeah this is the least you could do to help your case.

While in the classroom, it is impossible to jot down everything that your professor is teaching you. 

Also, you’re not Mike Ross that you have a pictographic memory.

Thus, go ahead and note down the important points. For this, you’ll have to be well read. Also, before going for your next lecture study the topics which the professor is going to teach. 

By doing this, you will have a rough idea about what the professor is going to elucidate upon. It will also help you in understanding what the most important points are.

Making notes not only helps you to have a better understanding of the subject but it also helps in figuring out the most important or most asked topic in the exam.

Professors tend to mention the important topics for exams in the classroom. Thus, you’d be able to know those only when you pay attention and make notes.

Also, always make your own notes. Every student has a different approach to make notes. Some tend to include almost each and everything whereas some include only some parts of the lecture. You have to take your own approach of making notes which will be helping you in scoring high in the exams.

You could refer to the courses provided by LawSikho to make your study more efficient. These courses provide insights which are extremely helpful for scoring high marks in the end term exams.

Memorize material weekly

The human brain cannot retain things forever. On average, a human brain can retain material only to a maximum of three days. Thus, you need to go over the material again and again as to retain them.

Remember the famous saying? Rome was not built in a day.

This applies here as well, you cannot score high marks if you do not study continuously.

You’ll be much more successful in exams if you learn and memorize the material each week after you finish updating your notes. If you try to cram over three months’ of study material into a couple of weeks then it will be a problem. You will have a much better grasp of the whole subject and will be able to apply it more efficiently.

Even if it seems boring going over the material again and again, keep doing it because that is how you will be able to score high in exams. 

You will be able to retain things for a longer period of time by following this.

Watching F.R.I.E.N.D.S. or HIMYM all over again will not be boring for you, or will it be? 

Forming a study group

Study groups can be a valuable learning tool. Find and form a study group which has the same interests as you do. 

Study groups are the most infamous study tool. People believe that there is more gossip than studies.

But, when it comes to study-groups, they are more efficient when it comes to learning. 

The reason being sometimes you might not be able to understand a specific part of the textbook. The same part of the textbook might be clear to some other student in the group. 

This becomes beneficial for you as you can approach that student and seek help from him. For example, there is a constitutional law study group and you cannot understand the rules required for interpreting the constitution. You can go ahead and ask questions regarding this to clear your doubt.

When you study by yourself, you will always see the material from only your perspective. Study groups are the best places to find newer perspectives. As you begin listening and start to ask questions, you will start to begin a broader perspective regarding a particular point.

Study groups are very beneficial in terms of removing the monotonous routine of sitting alone and studying at a long stretch. The monotonous study routine has a cascading effect in the long run. Prefer making a study group and see for yourself scoring high in your exams.

Make your case briefs

Sometimes, the case laws may run into hundreds of pages which makes it impossible to remember the whole of it e.g. the Kesavananda Bharati case. 

This judgment runs into 600+ pages and is one of the most important case laws in the arena of Constitutional Law. It is impossible for a person to remember each and every page of this judgment. So, for the purpose of remembering it efficiently, you could make a case brief of that case and note down all the significant legal changes, holdings of the case, and the rationale of the court behind the decision. 

You can also keep a small pocket-sized notebook which has all the most important points of the case.

For instance, when you get a practical approach-based question in the exam paper, you could actually answer those questions supporting them by a case law. 

The judgment, the ratio and also the dissenting opinion if there is any, could be written in the answer stating how your approach is correct. It also depicts how the court has justified the approach as well. This would help you in scoring high marks as your answer has been justified with the supportive case laws.

Thus, make case briefs efficiently as they are very important for a law student.

All work and no play makes Jack a dull boy

Studying continuously without and breaks will have a toll on your mind. Your mind will get saturated and you won’t be able to retain things thereon. Take small breaks and outings during the period of studying to make study time efficient.

Practice past year papers

The best way to score high in exams is to practice the past year papers. Past year papers are available with the library in the respective colleges. Make sure to understand the pattern of the question paper, and also the approach with which the professors make them. 

Oh! Practice makes a man perfect, no other quote better than this.

Apply that approach to your study as well for scoring well in the exams. Practicing past year papers will help you to know the type of questions that are asked and also perfect your skill of writing answers.

Don’t procrastinate

Never procrastinate regarding studying. If you procrastinate, things keep piling up and then, in the end, you’re not able to accomplish anything. The best way to stop procrastinating is to set deadlines for yourself earlier than what your professor provides. 

Voldemort would not have been the greatest magician of dark arts if he would have kept postponing his practice of the dark arts.

Taking the time to do it in advance will save you so much time later.  The euphoria of not worrying about reading or case briefing for class because you already did it is unparalleled. So, stop procrastinating and start working hard.

Get way ahead

One tip that would help a law student is to start reading for the class the week before it starts. This is helpful because you’re really ahead, and you can go with your non-procrastination streak in preparing for the class throughout the semester. Try to stay in a class or two ahead, it will actually provide you with a better understanding of the subject.

Get proper sleep

Sleep is quintessential for scoring high in exams. You need to give your mind the required rest that it needs to function properly again. The effort and time needed for a law degree are entirely different from getting any other bachelor’s degree. 

It requires a lot of patience to survive those five years of law school without going nuts. Thus, for studying and keeping your brain healthy, get a proper amount of sleep.

Time Management

This is the most generic tip where you would have got it anywhere, but it is also the most important thing. You need to be an organizational wizard. You have to learn how to manage your time effectively. 

For instance, think of your day as a 9-5 job if you do not have lectures, study during the gaps.

Revision

Revising the material, again and again, will help you to have control over your knowledge. Sometimes what happens is that if you fail to revise, you may forget one of the most crucial case laws or an important legal point. 

As there are many case laws and points, that it becomes difficult to remember. Thus, revision is the key to success. It will actually take time for you to work out which method is the best for you, but eventually, you’ll figure it out.

Clear your doubts

Sometimes, it gets really tricky to understand a specific provision in the statute. You can go ahead and get your doubts cleared by contacting the lecturer/professor of that subject. Having your concepts clear about that law will help you in the exam later on. A dubious mind will hinder you from scoring high.

Healthy habits

In order to keep your brain healthy, you will need to keep up with healthy habits. Exercising daily and eating healthy food will keep your body in a healthy position. This, in turn, it will keep your brain healthy. 2-minute Maggi noodles is not a healthy choice of food. 

12 AM-midnight snacking is also not healthy, come on eat healthily! 

Also, do not bury yourself in the books. Go out and have a run across the park or start playing a sport at your law school. If you do not have a healthy body, you’ll feel lethargic throughout the day and thus, you will not be able to function properly.

What can you do while answering the questions?

The tips given down below are to be used during the paper writing time. These can be helpful.

Use your reading time wisely

In some law exams, you have an allocated time for reading the question paper. The most important part of the exam is to read the question paper and understand the question. 

If this is fulfilled, you will be able to answer the questions efficiently. Read the question straight, thoroughly and steadily. Just keep reading, it is not unusual to be nervous and not be able to understand a few first lines of the paper.

But, don’t keep on with reading the whole three hours, remember you have to write as well.

Always structure your answer properly

Give a proper structure to your answer to make it easier for the professor to understand. 

State the issues first, then apply the rule of law in the second step. The third step is the applicability of the law to the current facts or situation. Conclude your answer with the conclusion. 

This is popularly known as the IRAC technique.

These steps can also be followed while making your memorials.

Allocate your time during the exam

It is completely illogical and irrational not to allocate your time in a law exam. Always allocate your time according to the marks allotted to the questions. 

So, give more time to the questions which have higher marks and lesser time to the ones with lesser marks. 

Even if you ran out of time and were not able to finish the short questions, you have a chance of scoring higher in the other question.

Decide the question you want to do first

It is not necessary to start the paper with Question No. 1. Generally, it is preferred by students to do those questions first which they know best. 

There might be areas of law that are more difficult to understand, with complicated concepts and inconsistent and uncertain case laws. Strategically, you are more likely to achieve higher marks overall if you leave the easiest question to last. 

Deal with the hardest question first or second. Complete questions that are somewhere in between in difficulty either second or third.

Usage of legal authority

Provide primary legal support for your answer to make it more compelling. A law exam should always have authority in the form of either statute or case law to support every statement of law that you make. In most of the law schools, you need to provide a summary of the case law for supporting your answer. For this, you’ll have to make case briefs efficiently as already mentioned.

And for statues, it is best to write the particular section and the clauses that are applicable in your case.

Use proper language

You should always use clear, concise and comprehensive language. It becomes easier for the professor if the answer is written in clear terms.

Use proper and fully-formed sentences. Use appropriate legal language while writing the paper.

You don’t need to flaunt your highly rich vocabulary in front of the professor.

Avoid legalese. It is unusual for a law student these days to use the stylistic language of law such as “heretofore”, “forethought”, etc. However, it is important to use certain legal terms such as locus standi. It is also crucial to know the meaning of these terms to use them appropriately.

Avoid lengthy answers

It becomes tedious for the professor to check lengthy answers. A law professor on an average has to check almost 100 copies in a go. This becomes really taxing. 

Thus, keep your answers precise. Make use of less superfluous words. Keep your answer specific and to the point.

The professor is looking for certain things in your answers such as the identification of the legal issue, the legal principles and the application of the law to the facts. Also, do not rewrite the facts.

It becomes repetitive. 

Be clear in what you state.

A great law answer demonstrates the proper application of legal reasoning and analysis. You have to clearly explain the approach adopted by you in reaching that particular conclusion.

BE CLEAR! 

Conclusion

It is a well-established fact that for scoring high marks in a law exam, there are no shortcuts. You will have to work day and night for a good score. However, there are certain online courses available on the internet as well which can help you in scoring high. They provide you with practical aspects of the law as well. 

Testimonials

Students from NLSIU, one of the most premier institutions of the country, for scoring high in the exams, say, “The subjects which are application based, you need to read and understand it properly and read extra if it is possible. Also, each and every subject should be considered as legit.”

A student from NLU-O who is one of the toppers of his batch has to say, “One needs to love that subject or produce interest in that. You need to give five to six hours a day of studying to score high. If you’re not able to devote that much time, be attentive in the class, that makes your work easier. Also, make your notes properly as well, and if that is not possible, get the notes from someone else. The professor’s teachings are a boon for scoring high in the exams.”

Aniket Sachan from RMLNLU, one of the highest scorers of our batch says, “You have to study compulsorily for scoring high, there is no escaping that. Just read and keep your concepts and basics extremely clear. Have all the fun that you can have but when you are studying, focus on that. Even if you study for one hour, that one complete hour should be just studying.”

Srijan Somal from RMLNLU, in the top 3 percentile of his batch says, “As I believe, studying for hours at a long stretch without even taking a break and not getting what you’re studying is futile. So, what I do is that I incorporate several breaks in the study hours which make me study more efficiently. In those breaks, I take up activities which I like the most. This helps me in clearing my mind and helps me from getting stressed easily.”

The post How to score high in exams as a Law Student appeared first on iPleaders.

This article is written by Ayushi Dubey, a third-year student of Institute of Law, Nirma University. The article gives a detailed account of John Rawls’ theory of Justice with relevant examples for a clearer understanding. 

Introduction 

An American moral and political philosopher, John Bradley Rawls is known as the philosopher of Liberal tradition. Born and brought up in Baltimore, he was the second son of William Rawls, who was one of the most prominent attorneys of Baltimore. Rawls has published three books, out of which “A Theory of Justice” is the most famous one. The book focuses on the theory of the Original Position in attaining justice. 

In order to understand Rawls idea of justice, we need to have a pretext of the idea of another famous political thinker, Emanuel Kant. Kant says that just laws arise out of the contract. These contracts are not the usual and actual contracts which people make when they come together. These contracts are exceptional in nature. The question is why are they different. Kant says that when different people gather together to make constitutional conventions, then all of them have different interests and demands. Also, people have different bargaining power so, the one with good bargaining power would have heavier say in the contract. Therefore, the actual social contracts do not necessarily be just laws. These contracts will only highlight differences and would be special to them who have more knowledge of law and politics. 

So, this concludes that though Kant is a contractarian he doesn’t trace the origin of any social contract that gives rise to just laws. Which means that Kant’s exceptional contract is a hypothetical contract since it never happened. And therefore, an obvious question arises, “What is the force of a hypothetical contract?” The answer to this question lies in the theory of John Rawls. 

The concept of Veil of Ignorance

Rawls theory of justice is parallel to Kant theory of justice in two ways. Firstly, Rawls, like Kant is also a critique of Utilitarianism. And secondly, like Kant, Rawls also follows the principle of a hypothetical social contract to achieve justice. Rawls, to explain his idea of a hypothetical social contract introduces a device called the “Veil of Ignorance.” 

Rawls says that imagine a situation where people have gathered to decide collective principles of justice to govern themselves. There would be different ideas and suggestions. The idea and suggestion would be affected by the kind of people in the discussion. There would be people who are rich, poor, strong, weak etc. All of them would have different interests which would reflect in this idea. This discussion would give rise to a situation where a compromising idea of justice would be chosen and which would not necessarily serve the purpose. Therefore, Rawls says instead of this, imagine we gather together in an “original position” of equality, where everybody is equal. This equality is assured through the veil of ignorance. The basic idea of the veil of ignorance is that people are behind a kind of veil and without knowing certain particular facts about each other. And by this, nobody would have superior bargaining power in the collective idea of justice. 

Hence, Rawls idea of justice is “a hypothetical social contract, made behind the veil of ignorance in the original position of equality.” 

Moral force behind the Hypothetical Social Contract

The first question that would arise in a mind about Rawls’ hypothetical social contract is “what would be the moral force behind this contract”. There are certain reasons as to why any promise should be kept or fulfilled. In order to abide by a contract, there shall be some force behind it. Similarly, there should be a moral force behind the hypothetical social contract which never happened. To answer this question, we first need to look at the moral force behind the actual contract. What is it that makes an actual contract binding on parties?

There are two ways in which an actual contract generates obligations on the parties in the contract:

1. Consent-based obligation: This points out towards the idea of autonomy. There is involvement of the self in this. If you have consented for a particular agreement then, you have to abide by it. This moral force is self-imposed.
2. Benefit-based obligation: This points out towards the idea of reciprocity. One obliges to fulfil his promise because he has been benefited by the act of opposite party and hence has to fulfil the promise in return. 

But does consent make a contract fair? No, just because someone has consented to the contract that doesn’t necessarily mean that the terms of the contract are fair. Consent might be a result of Undue Influence, Misrepresentation, Fraud or any other form of intentional and unintentional deceive. For example, an old lady consented to sell her property to a man. The price that was decided between the two was half of the actual price of the property. Now, here, though the lady has consented the terms of the contract are not fair since she is not aware of the malice hidden in the deal. In this case, the lady has all the right to end the contract even after consenting. Hence, it is not always necessary that if one has consented for the contract then, he or she has to necessarily abide by it. 

Contrary to this, there is another situation, when a contract is said to take place even if you have not consented for it. A classic example of this could be poor children who start cleaning your car glasses even without your consent. In this situation, you kind of becomes obligated to pay him since you never stopped him while he was cleaning the glass of your car.

Hence, an actual contract derives its moral force by virtue of two ideas:

1. Autonomy- consent based.
2. Reciprocity- benefit based. 

But in real life, an actual contract may fall short of these ideas. The idea of autonomy may fail due to the lack of knowledge among the parties. Whereas, the idea of reciprocity may fail due to the difference in bargaining power. So, Rawls tells us to imagine a situation where the idea of autonomy and reciprocity are not subjected to any conditions or contingencies and are fixed to take place. What would be that contract? Rawls says it would be a Hypothetical Social Contract, made behind a ‘veil of ignorance’ in a state of complete equality. Therefore, according to Rawls principles of justice can only be achieved through this way. Now, the next question would be, what would be the principles of justice?

The Principles of Justice 

Rawls does not give a clear account of what principle of justice should be chosen, but he did talk about the principles which shouldn’t be chosen. 

• Rawls argues that we would not choose the principle of utilitarianism. He says, that we would support individual rights and would not want the majority to tyrannize the minority. We would have a system of equal rights and hence would choose a principle of equal basic liberty. 

What principle would be chosen to govern social and economic inequality?

• Rawls says, to answer this, we need to first agree for equal distribution of wealth and income. This, Rawls says, can be done by agreeing to the qualified principle of equality. Rawls called this principle as the “difference principle”.

Difference principle is based on the idea of distribution. It says that only those inequalities would be considered which are for the benefit of the least well-off. Therefore, all inequalities would not be rejected. If inequality works for the benefit of those who are at the bottom of society then, it should be accepted. 

Rawls Difference Principle in comparison to other rival theories 

According to Rawls, the distribution of income and wealth should not be based upon arbitrary factors which are not in control of an individual. Rather, it should be based upon factors which their own credit. For this Rawls criticised some rival theories. We will consider a common example of a race to understand the difference between all the systems. 

1. Feudal aristocracy: By this Rawls means that the people’s life events are determined by their birth. This may include their place and environment of birth. Birth is a factor which people have no control and hence determining principle on the basis of birth would be arbitrary from a moral point of view. Hence, the result of the race cannot be based upon this system. 
2. Libertarian system: Libertarians believe that everybody should be given equal opportunities to show their talents regardless of their birth. There shall be equality of opportunities in every aspect and all should have the equal right to strive for work of their choice. But Rawls could not agree to this system as well. He opined that if the race you give equal opportunities to everyone then, those who have started from a lower point would never be able to reach equal to others. Therefore, in the race, when people start from different starting points then their endpoint should also be different. 
3. Meritocratic system: In the meritocratic system all are brought on the same starting point i.e. everybody is given equal facilities and privileges to move towards their end goal. For example, providing similar education to all. Then, the race would be fair. But Rawls is not satisfied with this system also, he argued that even if we all start from the same starting point, with the same facilities and towards the same goal then also, there would be some people with extraordinary talents and learning capacities which will help them to do better than the rest of the people.

For example, in a race, the best athlete would win. Therefore, the meritocratic system fights against social barriers but can not overcome the biological barriers that come in between. So, Rawls thinks that for removing the moral arbitrariness, we would require a system which goes beyond this. Many answered that the only way to remove this would be to handicap the best runner. But Rawls says that even this can’t be done since this would dissolve the very purpose of the competition. 

So, the question remains what can be done to remove the moral arbitrariness without dissolving the purpose of the competition? 

Rawls answered this question through his difference principle. According to this principle, you encourage those with extraordinary talents, good fortune and privileged conditions. But you also take into account those who don’t have any of these. You will establish a principle which would benefit people from their luck in their genetic lottery, their place of birth, their talents but only on the terms that it works for the benefit of the least well off. The terms for the fruits of the race would be different for all and hence the result would be based upon the efforts put and the conditions behind those efforts. 

So, for example, Bill Gates can earn whatever money he wants but only on the condition that a part of his income would, in the form of taxes, benefit those who lack the skills that he is blessed with. Rawls further says that those in a better position can never think that they deserve what they have. “Those who have been favoured by nature, whoever they are, may gain from their good fortune only on terms that improve the situation of those who have lost out.” You set up a system where everybody, including those at the bottom, is benefitted by the talents of those who are lucky.

Conclusion 

John Rawls gives account of a system which benefits all sections of the society, equally. He, through his theory, proposed a system where laws and principles of justice are made by the conscious effort of the people who would be governed by those laws and principles. His idea of the veil of ignorance points out to the idea of equality, a system where each individual has equal participation in the making and where there are no biases involved. Further, through his difference principle, he had taken care of those who need special attention after the system is made. His idea is one such ideal which can be chosen to protect the rights of minorities and the least well off. 

References 

1. https://www.britannica.com/biography/John-Rawls
2. https://plato.stanford.edu/entries/rawls/
3. https://owlcation.com/social-sciences/Key-Concepts-of-the-Philosophy-of-John-Rawls
4. https://scholar.harvard.edu/sandel/justice 

The post Rawls Idea of Justice appeared first on iPleaders.

This article is edited by Mansi Bathija and written by Lakshay Kumar, a second- year B.A.LLB student of Delhi Metropolitan Education, Indraprastha University. In this article, he talks about the most important change under Goods and Services Tax that is the concept of Input Tax Credit, who all can avail the benefit of input tax credit and claim it.

What is Input Tax Credit ??

So when a producer makes a product, raw materials are required and the producer buys those raw materials and pays the tax on all those raw materials. Later when the entire new output is produced out of that raw material, he can get his tax reduced up to the extent he has already paid, this means that when the new output is made and the producer sells it he does not have to pay the taxes which he has already paid when he bought the raw materials, in general terms it means reducing the tax from inputs from the tax to be paid in total output. For example- if the total tax on the output is 300 and in this cost, the tax paid on input is 100 then the ultimate tax which has to be paid is 200( subtracting the total tax from the tax already paid on inputs i.e 300- 100= 200)

The concept of input tax is not new, it was already present in the economy but post-GST its scope has widened. One thing to be noted here is that input credit tax is not available on all kinds of inputs, every state of the country has different regulations and rules regarding the input tax credit

How to Claim the Input Tax Credit

1. The first thing which is absolutely necessary for claiming ITC is the availability of a tax invoice which is issued by the registered dealer.
2. The second important condition necessary for ITC is that the proposed recipient of ITC must have received the goods or must have availed the services.
3. The third most important thing necessary is that the supplier must have paid the taxes which he charged from the recipient of ITC  to the government in cash.
4. He should have filed his GST returns periodically.

It is also possible that sometimes the taxes paid on the raw materials are much higher than the tax which is to be paid on sale, in that case, you can claim back the amount , and if the tax on the raw material is lower than tax on output then you have to pay the balance amount back, another important thing to be kept in mind before claiming input tax is that a person can not claim input tax on an invoice which is one year old.

Input tax can be claimed on both the goods and services because GST applies to both goods and services. No input tax is allowed on GST returns filed for September as it marks the end of the financial year.

How to Calculate Input Tax Credit

Suppose you are a manufacturer of steel utensils who sells utensils made up of steel. Let us take an example of a steel pressure cooker. Assume that the GST on the pressure cooker is 18 percent. Now for making a steel pressure cooker, he purchased raw steel for INR 500 and the other raw material used for making pressure cooker for INR 100, the GST on raw steel let’s suppose it be 18 percent and on other raw material let it be 18 percent. So the total tax which the manufacturer has to pay on inputs is 118 ( 18% of 500 + 28% of 100 ). 

After making the pressure cooker, the next step is to sell it to the distributor, after taking into consideration the manufacturer decides to sell his pressure cooker at INR 800 + GST i.e 800+144

The total output cost is 944. However the total output tax which the manufacturer has to pay is 144, but since he has already paid INR 118 as input tax, the total tax which he has to pay is 26, this is how the input tax is calculated.

How is Input Tax Utilized

There are three types of tax under Goods and services act first is central goods and services tax, second states goods and services act, and third integrated goods and services tax. Central goods and services tax and state goods and services are applicable to intrastate transactions, whereas on interstate transactions integrated goods and services tax is applicable

For utilizing the input tax the following table  must be referred

Click Here

The New Law Regarding Utilization of Input Tax Credit

The new section inserted under the GST Act is as follows 

Section 49A. Notwithstanding anything contained in section 49, the input tax credit on account of central tax, State tax or Union territory tax shall be utilised towards payment of integrated tax, central tax, State tax or Union territory tax, as the case may be, only after the input tax credit available on account of integrated tax has first been utilized fully towards such payment.

Section 49B. Notwithstanding anything contained in this Chapter and subject to the provisions of clause (e) and clause (f) of sub-section (5) of section 49, the Government may, on the recommendations of the Council, prescribe the order and manner of utilisation of the input tax credit on account of integrated tax, central tax, State tax or Union territory tax, as the case may be, towards payment of any such tax. The new law could be understood with the help of the following table :

Impact on business because of the New Law

We can see from the second table that in the case of CGST, even though the credit was available and could have been utilized fully, the new system won’t let you use the same for the set-off. Since CGST credit was not utilized at all, this put an additional burden on the amount of SGST to be paid, as CGST credit cannot be utilized to pay SGST. Further, we can notice that there can arise a possibility of a carry forward of input tax credits of SGST or CGST remaining unutilized during the tax period.

So this affects the working capital of your business as your cash outflow will increase from month to month due to the new rules of set-off.

However, from the Government’s point of view, it is immediate revenue coming in, in the form of cash. Thus, it helps in mobilizing the economy.

Situations when Input Tax Cannot be Claimed (Negative List)

As mentioned above input tax credit is not available on all kinds of input, here are some situations under which you can not claim input tax 

1. Credit on motor vehicle purchased for personal or office use cannot be used as an input tax credit, however, there are related to it as well, for instance, if the person is in the business of buying or selling second-hand vehicles and is a taxable person then in that case input tax credit can be used 
2. The second situation under which input tax credit can not be claimed is when a person is providing food and beverages or giving outdoor catering, cosmetic and plastic surgery. 
3. Rent of a cab or health and life insurance does not come under the ambit of input tax credit.exeption to this rule is that when the government makes it mandatory for the employer to provide a specific facility to its employee under a certain law then in that case the employer can claim input tax credit for providing service, for example when the government makes mandatory for all the offices to provide cabs to its female employee for their travel.
4. The fourth situation under which a person can not claim ITC is when a person works for a contract for the construction of some immovable property but if the same person employees some other person in order to engage him in the construction then the first contractor can avail the benefit of input tax credit
5. If someone is providing service to a nonresident taxable person then in that case as well he would not be able to claim the benefit of ITC
6. Other situations when a person would not be able to claim benefits of ITC are when goods and services are provided for some personal consumption and when some goods are given as gifts then in that case as well ITC cannot be claimed

Rules Regarding Discrepancies and its Rectification

If the supplier has claimed an excess of Input tax credit because of the discrepancies reflected in the return filed by him then in that case the discrepancy must be communicated to the supplier and the recipient, after the notice of discrepancy the supplier has one month time to rectify that discrepancy, upon his failure to do so the credit which was to be claimed, would now be added in the total output tax   of the recipient. For example, if the discrepancy has been discovered in the month of July and the supplier fails to rectify it within a month then the input claimed on that return will be added to the total output tax liability of recipient for the month of August

If there is some kind of duplication in claiming ITC, then after the communication of duplication has been made, if that duplication is not resolved then the ITC amount would be added to the output tax liability of the recipient for the month in which such notice was communicated, apart from this the recipient also has to pay an interest of not more than 18% on the total output tax liability

Reclaiming Input Tax Credit

1. Reclaiming of input tax credit means that when to reclaim the input tax which was reversed due to the excess input found in the supplier’s return because of some discrepancy in the return filed or because of duplication of ITC. One can only claim the input tax when he is able to declare his invoice details or debit notes in his correct return pertaining to the period when the discrepancy was discovered or when it came to the notice of the supplier.
2. If the supplier has already paid the excess interest on the claim of ITC it will be refunded back to him through appropriate means.
3. In case the reversal of ITC happened because of duplication in the ITC then no such interest would be refunded as duplication is in itself a violation of the GST provision.

for example – supposing Mr. Kumar filed his GST return for the period of August 2017 in September 2018 and some discrepancies were found in the inward supply up to INR 10,000 of Mr. Kumar’s return. Later on, this information was conveyed to Mr. Kumar and the recipient. If Mr. Kumar fails to correct his discrepancies Then that ITC would be added to the total output tax liability of the recipient and an interest of up to 18 % would also be charged, but if he rectifies his mistake on time then the ITC could be claimed and if some excess interest has already been paid then that would also be refunded.

Conclusion

Input Tax Credit is the most important topic under GST, under this topic we analyze how can a registered taxpayer get his tax to lower down when he has already paid the tax on the inputs.  The article analyses how to calculate the input tax credit and how can it be utilized. Along with it in this article, we come to know how the new law came into force as to utilizing the input tax credit on the payment of GST.  

The post Understanding Input Tax Credit and How to Claim it Under GST. appeared first on iPleaders.

The article has been written by Pooja Kapur, a 5th-year student from Amity Law School, Noida. In this article, she has given the overview of constitutional provisions pertinent to environment protection in India.

Introduction 

A rapid increase in global warming, deforestation, air, water and other forms of pollution is posing a great threat to the environment and its living beings. The degradation of the environment through a plethora of activities carried on by individuals is detrimental to the health of all the living beings, including human beings, plants and animals.

Fundamental status has been given to the concept of protecting the environment as it is essential to promote human health to have a healthy environment and affords a right to a healthy environment to all. Preserving the environment protects the health of every individual and a healthy individual promotes the development of the environment which is the need of the hour.

To live in an environment which provides a pollution free atmosphere is not only a basic human right but also enhances human dignity. Principle of sustainable development is one such approach which if followed can fulfil the basic human right of having a dignified life.

Law acts as a means of regularizing the human conduct and provides the smooth functioning of society. Since the word ‘Environment’ did not find its existence in the Indian Constitution, it became essential to insert provisions in the constitution as it is the supreme law of the land and such insertion thus, would prove to be fruitful to protect the environment from exploitation. 

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The preamble of the constitution and environment protection

The Preamble of Indian Constitution begins by stating that people of India solemnly resolve to constitute India into a socialist country. This indicates that our Constitution affords us with the socialist pattern of society. Thus, aiming at dealing with and solving social problems first, rather than concentrating on individual problems. Here, what is in the interest of the public is of utmost importance.

Presence of pollutants in the atmosphere in excess of the prescribed limit is one of the major social issues to be given due regard. It is not only exploiting the health of living beings but is also degrading the quality of the environment in each day.

The basic aim of Preamble is socialism and it is the responsibility of the state to fulfil this by taking stringent measures to make the environment free from all forms of pollution. The obligation of the state further includes providing not only a pollution free environment but also a decent standard of living to all living beings. 

All the citizens of India intend to secure freedom which also includes securing justice. Justice can be interpreted and sought in many forms. Thus, citizens have a right to environmental justice. Increasing degradation of the environment is posing a great threat to the lives of living beings and hence, protecting the environment is becoming a crucial in each day of life because ignoring it would pose a serious threat to the environment at large.

The state has the duty to comply with all the provisions and since India is declared to be the Democratic Republic, the citizens of this country hold a very essential right to have looked upon the conduct of the state and provisions being taken by the government from time to time to restore the environment.

Legislative powers and matters of  environmental protection 

Under the Indian Constitution, there are three types of lists, namely- Union, state and concurrent. 

Powers of the government are shared at the state and union level. Central government deals with the matters of union list, where state government deals with the matters of state list. Thus, the exclusive power to legislate the matters of union list, which is the list I, is with the Parliament. State list which is the list II covers matters like, sanitation, the health of the public, drainage, supply of clean water etc. It covers matters relating to defence, military, atomic energy, regulation of oil fields, air traffic etc.

Power of dealing with the matters of the concurrent list (list III) is shared between both the state and central government. It covers matters like protection of forests, wildlife, conserving mines, population control etc. But in the instance of conflict, the decision of the central government prevails. 

The legislative and administrative relations between the central and the state government are specifically dealt in with the part XI of the Constitution. The power to make rules for the whole country is with the Parliament of the country, while for that of the state lies with the state government of every state.

In an instance of passing state laws subsequent to the central laws, for it to prevail, requires a Presidential assent first as in accordance with Article 254.

In the situation of national emergency, Parliament has the power to legislate the state subjects also. The division of these legislative powers is essential to make provisions which can deal with environmental problems. 

There are various projects taken up by the state to develop the environment but they might pose a serious threat to the environment. In such circumstances there is always a conflict between development and environment protection and such matters are dealt through the Environment Impact Assessment (EIA). This has also been recognized by the planning commission. 

 International Environmental Agreements

A plethora of international agreements dealing with environmental protection have been made and India has been a signatory to it. Because at the Stockholm declaration in 1972, it was held that the world has one environment. India being a signatory to such international pacts is under an obligation to translate those provisions and follow them in the country. This has been clearly stated in Article 51(c) of the Indian constitution that state shall foster respect for international law and the obligations of the treaties.

Another essential provision dealing in protecting the environment is Article 253 of the Constitution which empowers the Parliament of our country to make laws which can be applicable to the whole or any territory of the country for implementing any agreement or convention signed with the other country or countries.

Parliament can further legislate to implement decisions taken at any conference on an international level. Any provision made in the context of environmental protection in accordance with Article 253 read with articles 13 and 14 cannot be questioned before the court of law on the grounds of no legislative competence.

With the use of this power, it is pertinent to know that Parliament has enacted Air ( Prevention and Control of Pollution) Act 1981, and Environment Protection Act, 1986.  It has been clearly stated in the Preamble of these acts that the purpose of their enactment was to implement the decisions taken at the United Nations Conference on the Human Environment, held at Stockholm in the year 1972. 

In Vellore Citizens’ Welfare Forum v. Union of India, the supreme court held that it is essential to incorporate the international customary laws in the municipal laws, provided they are not contrary to them. It is an accepted principle of law. Thus, it was considered essential to follow international laws by the domestic courts of law.

Obligation of State and Environmental Protection

The authorities are under the obligation to follow the law and regularize the conduct for the benefit of the people who have elected them. Article 47 puts an obligation on the state that it shall regard the raising level of nutrition and standard of living of its people. Also, the primary duty of the state shall be to improve public health. It is the responsibility of the state to prohibit except for medicinal purposes, the consumption of alcohol and drugs which can be injurious to the health of the living beings and pose a great threat to their lives.

From the word “responsibility” it can be interpreted that state shall take effective, adequate and necessary steps to improve the health and standard of living of all and promote awareness in the context of environmental protection. In the environment development projects cannot be taken up by the individuals which harm society as a whole. Thus, the state needs to keep a stringent check on these activities and projects. 

There have been various reasons due to which level of pollution in the environment is constantly increasing. For eg., water pollution is commonly caused due to the draining of impure water in the rivers and which not only pollutes the natural resource of the country but affects the health of citizens. This lead to the urgent need of making provisions to obligate the state to preserve and protect the environment. 

In the case of Hamid Khan v. State of Madhya Pradesh, the state was negligent to supply water from the handpumps, colossal damage was caused to the citizens, which affected their health massively. Hence, due to this gross negligence on the part of the state, it was held that the state failed to perform its basic duty.

In the year 1976, the constitution was amended. With this amendment, Article 48-A was inserted in the constitution with the aim to afford better provisions so as to preserve and protect the environment. The provision of this article imposes the duty on the state to protect and improve the environment and safeguard the forests and wildlife of the country. The word “Environment” has been interpreted widely in this article. The state shall not only play a role of being protectionists but also enact adequate measures for improvement of the environment.

Every natural resource is interconnected with other natural resources of this country. Forests are directly linked with providing pollution-free air, helps in reducing global warming and is also connected with water resources. They help in maintaining the ecological balance. Thus, this resource is crucial and hence, its protection is equally important to avoid atmospheric pollution. Hence, the specific insertion of this section is justified.

Obligation of citizens and environmental protection

The duties of the state in protecting the environment are basically the rights of the citizens. The concept of rights and duties respectively, co-exist. They are interconnected. If citizens have the right to a decent standard of living and a pollution free environment, then at the same time they are obliged to protect it and not carry on activities which prove to be dangerous for the society at large and all other living beings.

The concept of rights was quite prevalent in comparison to the concept of duties prior to the 42nd amendment of the constitution. More importance was attached to rights than duties by the supreme law of the land. But the drafters of the constitution felt that it is necessary to shoulder the burden of protecting environment between both the state and the citizens. Also, citizens were more concerned with their rights and started neglecting their duties. Thus, part IV–A was inserted by The Constitution (Forty Second) Amendment Act,1976.

Part IV-A of the constitution deals with Fundamental Duties. Article 51-A(g) specifically deals with the fundamental duty of the citizens to protect and improve the natural environment which includes forests, rivers, lakes, wildlife and to have compassion for living creatures. Like the duty of the state, it is the duty of all the citizens of not only protecting the environment but also taking measures which are adequate enough to improve the environment.

Nature has gifted us with the resources and a pollution free environment and thus, this casts a duty upon the citizens to keep these resources in the same condition for the future generations. Hence,  the principle of intergenerational equity plays a major role in environmental protection by sustainable use of natural resources.

In Kinkeri Devi v. State, Himachal High Court  that in Article 48-A and Article 51-A(g) it was held that it is both constitutional pointer to the state and  the constitutional duty of the citizens not only protect the environment but also improve it and to preserve and safeguard the forests, the flora and the fauna, the rivers and the lakes and all other water resources of the country.

The negligence to abide by the pointer or perform the duty is nothing basically the straight betrayal of the fundamental law of the land.

In the case of betrayal, the courts cannot remain a silent spectator. A court can intervene at any time to make the implementation of the provisions by issuing writs, orders and directions as it thinks fit and necessary.

In L.K Koolwal v. State of Rajasthan and Ors, the municipality of Jaipur was being negligent in carrying on its basic duty of maintaining the hygiene of the state. This caused acute sanitation problem thereby leading to the to have hazardous effects on the lives of the people of the state. Mr Koolwal along with other residents moved an application under article 226 of the Indian constitution before the high court highlighting the gross negligence of the municipality.

While construing the true scope of Article 51-A  in this case the court explained that this article is not only a duty but is aright created in favour of the citizens to have the locus standing to move to the court to have a check on the conduct of the state activities, whether the authorities are performing their duties or not in accordance with the fundamental law of the land. The right to move to the court is granted to citizens for the proper enforcement of the state’s duties and of their relevant departments, local bodies etc.

Being negligent in maintaining hygiene and sanitation standards slowly affects the lives of living beings and poisons the environment at large. This infringes the fundamental right of life of the citizen as provided under article 21, which also extends to have a decent standard of living and a clean and safe environment and thus, citizens protecting their fundamental right to life from being infringed is justified. Thus, the court directed the municipality to remove the dirt and all the filthy material which was posing a great threat to the lives and health of the people.

In another case of Goa Foundation v. the State of Goa, the petitioner was a society registered under the rules relating to registration of societies and its members were the citizens of India who had a fundamental duty to protect and improve the environment, lakes, forests, rivers  and have compassion for living creatures as laid down under article 51-A . The question of whether the society had locus standi to move to the court or not was raised before the court.

The answer to this question was given in a very affirmative manner by the court and was held that the society had the same fundamental duty. Petitioner was held to have a locus standi to move to the court to not only prevent degradation of our ecology but also form and implement provisions for the purpose of rehabilitating the ecology thereby maintaining ecological balance.

Public interest litigation was filed before the high court by five persons, who were residents of a specific area, in the case of Sitaram Champaran V. State of Bihar to seek the directions of the court for the closure of the tyre retreading plant, in the interest of public health. This plant was situated in the residential area and was emitting carbon dioxide along with other obnoxious gases causing harm to the environment. The respondents were directed to wind up the plant in the interest of environmental protection and were considered a fundamental duty under Article 51-A. 

Right to life and Environment Protection 

Article 21 of the constitution provides for the fundamental right of life. It states that no person shall be deprived of his right to life or personal liberty except in accordance with procedures established by law. The words “except in accordance with procedures established by law” can be interpreted to mean that this provision is subject to exception and is regulated by law which varies from case to case.

Since the provision begins with the word ‘no’ that is the reason it has been given a negative impact. But post-Maneka period this provision has been given a positive interpretation and positively casts a duty on the state to enforce the due implementation of this law.

Right to life includes the right to have a dignified life and also the bare necessities of life like food, shelter, clean water and clothes. The right to live extends to having a decent and clean environment in which individuals can live safely without any threat to their lives. An environment shall be free from diseases and all sorts of infections.

This is crucial because the right to life can be fulfilled only when one lives in a clean, safe and disease-free environment, otherwise granting such right would prove to be meaningless. This aspect of Article 21 has been evidently discussed in the case of Rural Litigation and Entitlement Kendra, Dehradun v. State of Uttar Pradesh, where the petitioner along with the other citizens wrote to the supreme court expressing their views against the progressive mining which denuded the Mussoorie hills of trees and forests and soil erosion. This lead to having an adverse effect on the environment and resulted in landslides along with blockage of underground water channels.

The registry was ordered by the Hon’ble supreme court to consider this letter as a writ filed under article 32 of the Constitution.

An expert committee was appointed in this behalf by the Supreme Court to advise the Hon’ble court with some technical issue. On the basis of the report provided by the expert committee, the court provided the limestone quarries to be closed because it was infringing the right to life and personal liberty. Quarrying operations lead to ecological degradation and air and water pollution, which affected the lives of the people to a great extent.

In L.K Koolwal v. State of Rajasthan and Ors, Rajasthan High Court held that maintaining the quality of the environment, sanitation and health is covered under the purview of Article 21 of the Constitution. Because non-compliance to do so can adversely affect the lives of many citizens and slow poisoning along with reducing the life of a citizen. 

In Charan Lal Sahu v. Union of India, it was held that the duty of the state is to take adequate and effective steps for the enforcement and protection of Constitutional rights guaranteed under Article 21, 48-A and 51-A(g). 

In M.C Mehta v. Union of India, due to stone crushing activities in and around Delhi was causing a huge problem of pollution in the environment. The court was conscious of the inevitable consequences and the ecological problems caused due to the industrial activities in the country. In the name of environmental development, it cannot be permitted to degrade the quality of the ecology and increase different forms of pollution to the extent that it becomes a health hazard to the lives of all the citizens. It was further held that citizens have a right to fresh air and have a pollution-free environment in which they live.

Further, the scope of article 21 was broadened by the judiciary to include under its purview the right to livelihood as well. It includes the right of citizens to earn their livelihood along with the right to life. The wider interpretation of this article has proved to be beneficial in keeping a strict check on the conduct and actions of the government in the context of measures taken by the authorities to protect the environment. It is also beneficial in keeping a check on the activities of the state which can have a massive impact on the environment, health of the individuals and threat to the livelihood of poor. 

Indian judiciary has been very conscious while dealing with the matters of development and the environment protection to avoid the conflict between the two aspects.

In the famous Taj Mahal Case, ample of industries near Taj Trapezium Zone were using coke and coal as an industrial fuel. These industries were ordered to be relocated to an alternative site as provided under Agra Master Plan. The rights and duties of the workmen in the industries were also specified by the court following the principle of sustainable development.

Right To Equality and Environmental Protection

Equality before the law and equal protection of the law has been granted under article 14 of the Constitution. This fundamental right impliedly casts a duty upon the state to be fair while taking actions in regard to environmental protection and thus, cannot infringe article 14. In cases of exercise of arbitrary powers on behalf of the state authorities, the judiciary has played a strict role in disallowing the arbitrary sanction. Use of discretionary powers without measuring the interest of the public violates the fundamental right of equality of the people.

In Bangalore Medical Trust V. B.S Muddappa, an improvement scheme was prepared by the City Improvement Board of Bangalore for the purpose of extending the city. A low-level park was to be developed for which an area was kept under this scheme. But under the direction of the chief minister the area kept for the low-level park was to be converted into the civic amenity site where the hospital was to be constructed. As soon as the construction began, the residents moved to the high court.

The petition moved in by the residents was allowed by the high court. But in appeal to the supreme court, the appellant contended that the power to allot sites is completely a discretionary one and the developing authority has the right to allow the site for making hospital rather than a park. And thus, the diverted use of the land was justified in the eyes of the appellant.

By explaining the importance of open spaces and parks in the development of urban areas, the supreme court rejected the appeal. The Hon’ble court further stated that the open spaces, recreation, playing grounds and protection of ecology are the matters of vital importance in the interest of public and crucial for the development. Keeping open spaces for the interest of the public is justified cannot be sold or given on lease to any private person solely for the sake of monetary gains.

Freedom of Speech and Expression and Environment 

Right of speech and expression is a fundamental right expressly mentioned in article 19(1)(a) of Part III of the Constitution. There have been a number of cases where people have approached the court through the way of speech and expressing themselves by writing letters like that in the case of  Rural Litigation and Entitlement Kendra, Dehradun v. State of Uttar Pradesh where they have expressed the violation of their right to have a clean and safe environment and a right to livelihood.

In India, the media has been playing a crucial role in moulding the perception of people in issues relating to the environment. Thus, Article 19(1)(a) is interpreted to include the freedom of the press as well. 

Freedom of Trade and Commerce and Environmental Protection 

All the citizens of India have a fundamental right to carry on any profession or business, trade or commerce at any place within the territory of India under Article 19 (1)(g) of the Constitution. But this is not an absolute right and thus, has reasonable restrictions to it. Article 19(6) of the Constitution lays down the reasonable restriction to this fundamental right to avoid the environmental hazards.

The purpose is to avoid the ecological imbalance and degradation of the atmosphere in the name of carrying on a trade, business, occupation or carrying on any profession. Thus, in the name of business or profession, one cannot cause harm to the environment.

In M.C Mehta v. Union of India, AIR 1988 SC 1037 certain tanneries were discharging effluents in the holy river Ganga which was causing water pollution. Further, no primary treatment plant was being set up despite the constant reminders. It was held by the court to stop the tanneries from working because the effluents drained were ten times more noxious as compared to the ordinary sewage water which flows into the river.

The court ordered while directing tanneries to be stopped from working which have failed to take necessary steps as required for the primary treatment of effluents from the industries. The court while passing this order contended that, though the court is conscious about the unemployment that might usher due to the closure of the tanneries but health, life and ecology holds greater importance in the eyes of law.

In M.C Mehta v. Union of India, 1994, it was directed by the Supreme Court that the industries who did not comply or adhere to, with the prior direction of the Hon’ble court regarding the installation of air pollution controlling system should be closed. In this case, the supreme court laid down its greater emphasis on Article 19(6) of the Constitution.

In S. Jagannath v. Union of India , sea beaches and sea coasts were considered to be the gifts of nature, by the Hon’ble supreme court and any such activity which pollutes these natural resources or the gift of nature cannot be permitted to function. In this case, a shrimp farming culture industry by modern method causing degradation to the ecosystem, discharge of polluting effluents, polluting the potable ground-water and depletion of the plantation. All of these activities were held to be violative of constitutional provisions and other legislation dealing with environmental matters, by the court.

The court further held that before the installation of any such industry in a fragile coastal area it is essential for them to necessarily pass the strict environmental test. In other words,  reasonable restrictions can be laid in accordance with Article 19(6) of the Constitution.

Role of the Supreme Court in environmental protection 

In lieu of the wide range of cases dealt by supreme court with regard to environmental protection, a plethora of judgements have been passed which have laid down various principles to be taken care of before indulging in any activity which might pose a threat to the environment. Also, different aspects of the environment have been highlighted by giving them immense importance like natural resources. Air and water have been given the status of the gift of nature and inalienable part of life. 

While incorporating the important features to the fundamental right provided in Article 21, certain principles were ascertained by the supreme court to be necessarily ensured for the protection of the atmosphere, which are as follows- 

Polluter Pays Principle 

The basic concept behind this principle is that “ if you make a mess, it becomes your duty to clean it up”. The polluter pays principle does not lay emphasis on the ‘fault’ rather on the curative approach to repair the ecological damage caused by any person or group of persons. This principle was for the first time referred to in the year 1972 in the OECD Guiding Principles concerning International Economic Aspects of Environmental Policies. 

Further, this principle was also applied in the case of Vellore Citizens Welfare Forum v. Union of India. In M.C Mehta v. Union of India and Ors( Calcutta Tanneries Case), the polluter pays principle was applied where industries were directed to be relocated and these industries were ordered to pay 25% of the cost of the land. 

The industries which did not pay the cost of the land and did not comply with the direction of the court were further directed to be closed. The Hon’ble court again restored to the directions which were earlier given in the Vellore Citizens Welfare Forum v. Union of India. 

Precautionary Principle

Principle 15 of the Rio Declaration provides for the precautionary principle. According to this. In order to protect the environment, it is essential to apply the precautionary principle. This principle means that where there is a chance of great threat or irreversible damage to the environment, lack of full scientific certainty cannot be taken as a reason of not issuing the cost-effective methods. 

In M.C Mehta v. Union, popularly known as Taj Mahal Case, was another judgement of the court passed on the basis of the precautionary principle. In this case, public interest litigation was filed alleging the degradation of Taj Mahal due to environmental pollution. Court referred the case to the expert committee to seek technical on the matter. On the basis of the report of the committee. This monument is a monument of international repute. The industries located in the Taj Trapezium Zone(TTZ) were using coke/coal as the industrial fuel, thus emitting effluents. 

It was held by the court that, the Taj apart from being a cultural heritage, is also an industry by itself and thus, it was directed to all the industries operating in TTZ to use natural gas as a substitute for coke/coal as an industrial fuel and if they cannot be restored to it for any reason, they must stop functioning and they may relocate themselves as per directions of the .`The industries on the relocation in new areas were to be given the incentives. 

The doctrine of Public trust 

This doctrine rests on the principle that certain resources which are required for fulfilling the basic amenities of life like air, water etc hold great importance to the people at large that it would be completely unjustified to make these resources available to the private ownership. Since these resources are the gift of nature that is why they should be made freely available to every individual of the society irrespective of the status in life. The doctrine obliges the government to protect resources for public use rather than being exploited by a private person for making economic gains. 

Thus, commercial use of natural resources is completely prohibited under this doctrine. For the effective and optimum utilization of resources, this doctrine mandates an affirmative action of the state authorities. Also, citizens are empowered to question the authorities if resource management is ineffective. 

In M.C Mehta v. Kamal Nath, 1997, the state government granted a lease of riparian forest land to a private company having a mote located at the bank of river Beas, for commercial purposes. The hotel management was intervening with the natural flow of the river by blocking the natural spill channel of the river. This was questioned before the court through public interest litigation. The court explained the scope of public trust doctrine and observed that the doctrine rests on the primary principle that certain resources like air, water, sea and forests have great importance to people and it would be unjustified to make them subject to the private ownership. 

Sustainable Development 

The term sustainable development was for the first time used at the cocoyoc declaration. Thereafter it received further impetus through the Stockholm declaration where it was held that the world has just one environment and the man is both the creator and moulder of the environment. Further, in the Brundtland report, the definition of sustainable development was given according to which it is the optimum utilization of resources for both the present and future generations. Thus, intergenerational equity is a must. Resources have to be protected for both the present and future generations. 

Conclusion 

This article begins with laying down emphasis on why environmental protection is necessary, why did a need arise to protect the environment followed by the causes of ecological degradation in the introductory part. Various reasons have been considered to be a major factor in polluting the environment and affecting the lives of the people and posing a great threat to other living beings of the country. 

In earlier times, the word “environment” was not specifically mentioned in the Constitution and  no specific provisions were laid down in the Constitution to deal with the environmental hazards and to regulate the activities of the people who thereby were contributing a huge part in degrading the quality of the environment in the name of exercising their fundamental rights. The constitution is the supreme law of the land. Thus, inserting the clauses to specifically deal with the environmental issues would prove to be beneficial for the environment. 

42nd Amendment to the Indian Constitution proved to be a solution for this major health hazard. The provisions in the article begin with highlighting the provisions from the base. Starting from the words democratic, socialist and republic used in the Preamble to the Constitution and its connection with the protection of the environment. Followed by duties of the state to protect the environment as being an authority elected by the people they are obliged to work for the people. Then the concept of rights and duties has been dealt with, wherein the right of a citizen to have a healthy environment has been mentioned and also the duties of citizens towards the environment in which they live to protect and preserve it. 

A number of landmark cases have been mentioned to make the concept even more clear and how this plethora of judgements have clearly mentioned the importance to protect this environment. It can also be concluded that the supreme court has played a major role in laying down the environmental jurisprudence. Also, fundamental rights are essential and cannot be infringed upon but in accordance with the reasonable restrictions can be dealt with. 

To have a healthy environment is so essential because a healthy environment promotes good health of the greater number which leads to less diversion of resources or spending of the huge amount of money on the treatment of the people. In these situations, the poor suffer the most as they do not have enough resources to afford their health issues. Moreover, healthy beings are valuable assets for the country who when healthy and fit can contribute much towards the economy and develop the nation thoroughly by paving a path of progress, generating employment and increasing the GDP.

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This article is written by Sarthak Gupta, a  student of the Institute of Law, Nirma University. This article discusses provision related to the execution of capital punishment in India and an alternative form of execution that may be used in place of hanging.

Introduction 

 Execution of capital punishment in India is basically done through two methods.

• Hanging by the neck until dead 

It is provided under Section 354(5) of CrPC, 1973 and Army Act, Air Force Act and Navy Act. 

• Being shot to death

It is provided under the provision of the Army Act, the Air Force Act and Navy Act for some specific offences. 

Execution of capital punishment under the Code of Criminal Procedure, 1973, and the prison manual

Death sentence in India, under the Code of Criminal Procedure, 1973 is done through hanging the person till death. Along with  Section 354(5) of the CrPC, 1973 execution of the death sentence is done through the provision of jail manuals of the respective states. Some of the general provision mentioned in the  Jail manual of most of the states are as follows.

Diet schedule

An ordinary diet of a labouring convict is given to the condemned prisoners. Before giving any food to condemned prisoners, food should be tested by the deputy superintendent, assistant superintendent or medical subordinate and food should be delivered to the convict in the presence of deputy superintendent, assistant superintendent or medical subordinate. 

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Time of execution 

Generally, execution of Condemned prisoner takes place early in the morning before it is bright.   time varies from season to season in different states. Jail Manual of Punjab and Haryana, for instance, provides following time.

Solitary confinement 

 Condemned prisoners should be put in solitary confinement under a charge of a guard, day and night. He should be allowed to meet or communicate with only those people who are authorized by the superintendent.

Regulation regarding rope to be used 

1. A manilla rope which is of one diameter shall be used for the execution. It should be 19 feet in length, sufficient tensile and has strength to bear a weight of 280 lbs with 7-foot drop and capable of easily passing through noose ring. 
2. At least two such kinds of rope should be available at the jail where such execution is going to take place.
3. The ropes shall be tested in the presence of superintendent, at least a week before the date fixed for the execution
4. After testing it should be locked in a place of safety.
5. An evening before the execution it should be checked to see that it has not received any injury after the test.  

• Condemned prisoner on his admission in prison should be checked carefully and any item that may be considered as dangerous or inexpedient shall be taken from him. Before putting him in the cell, the cell should be carefully examined to ensure that there is nothing dangerous which may be used by the person as a  weapon or instrument to commit suicide. 
• When the door of the cell in which the prisoner is kept, is opened his hand should be handcuffed and if that person declines to handcuff his hand at least three members of the establishment shall be present there. The locks of the cell in which he is kept shall not be opened by any keys other than the specific key of his cell.
• The body of such condemned prisoner should remain suspended half an hour and shall not be taken down until the medical officer declares him life extinct.

Executions in accordance with the Army Act, Air Force Act, and Navy Act

The Air Force Act, Army Act and Navy Act provide for the execution of the death sentence in two ways. The first way is hanging by the neck until death and the second way of being shot to death. For instance, section 34 of the Air Force Act, 1950 empowers the court-martial to impose the death sentence for the offences which are mentioned in section 34(a) to (o)

Section 163 of the Air force Act provides that according to the discretion of court-martial accused can sentence for capital punishment either by hanging or by being shot to death. The provisions of the Army Act, 1950(Chapter VII ), The Navy Act 1957(Section 147) are similar in nature to that of `The Air Force Act, 1950 providing for the option of the execution of the capital punishment by being shot to death and hanging by the neck till death 

Execution of capital punishment by Hanging: A need for change

The right to die by a dignified procedure of death is a fundamental right of a person. In  Deena v. Union of India (1983)4 SCC 645, the Supreme Court stated that execution of capital punishment should satisfy the following criteria.

1. It should be as simple and as quick as may be  possible 
2. It should bring immediate unconsciousness of the person passing quickly into the death 
3. It should not involve any kind of mutilation.

Further, a resolution passed by the United Nations Economic and Social Council states that when capital punishment is executed, it should be carried out with the minimum possible suffering 

In  execution of death sentence by hanging the condemned prisoner till death, a prisoner is made to stand on a trapdoor, and when the trap is released he falls several feet until stopped by the rope tied around his neck , this result in breaking of the neck of the person but many time when neck does not  break the prisoner strangles to death.

In the case, if the drop is too short, the prisoner dies of strangulation( slow and agonizing death) and if the drop is too long, the prisoner dies of decapitation (complete separation of the head from the body).

In the words of Warden Duffy of San Quentin, a high-security prison in the USA,

“The horrifying experience for the condemned prisoners actually starts a day before the actual hanging take place. He is weighed, measured for length of the drop to assure breaking of the neck, etc. Many times when the neck does not break prisoner  strangles to death and his eyes pop out, his tongue swells and stick out from the mouth and he discharges urine and faeces”

Justice Bhagwati in his dissenting judgment in the case Bachan Singh v. the State of Punjab (1982) 3 SCC 25 described hanging by rope as barbaric and inhuman as entailing physical pain and agony. Further while hearing a PIL  filed by a lawyer regarding the right of a condemned prisoner to have a dignified mode of execution former Chief Justice Dipak Misra said legislature shall look at changing the law so that a convict, facing the capital punishment, dies “in peace, not pain”.

While giving a dissenting judgment Justice Egonda Ntende of the Supreme Court of Uganda pointed out in Attorney General v. Susan Kigula & 416 others [2006] various reason why hanging should be considered cruel and inhuman treatment.

•  The wrists and ankles of the prisoner are tied to restrain him.
• The prisoner cannot react to pain and feeling of asphyxia, by the usual physiological responses of crying out or moving violently.
•  The person hanged often sweats, drools, the eyes bulge and defecates.

What are the other options available for executing capital punishment 

If not the Hanging then what? Over the years many kinds of methods have developed to give capital punishment, some of those popular methods still practised are as follows.

Beheading

This method usually involves chopping off the person’s head with an axe or sword. This method was quite popular in England and Germany in the 16th and 17th centuries.  In 1747 the last beheading was done in the United Kingdom. Nowadays this method is not generally used by countries around the world except a few countries like  Iran, Saudi Arabia, and Yemen, Qatar. The judiciary in various judicial pronouncements and the UN has also ruled it to be one of the farcical and an arbitrary method of capital punishment.

Gas chamber

In this method of execution, a prisoner is put in an airtight chamber and then after a signal, the executioner opens a valve which allows hydrochloric acid to flow into a pan. After another signal sodium cyanide crystals are dropped which produces hydrocyanic gas. Hydrocyanic destroys the body’s ability to process haemoglobin.

Nevada was the first state to legally allow the use of gas chambers to execute the prisoners and at the present seven states in the  USA i.e, Arizona, California, Wyoming, Oklahoma, Missouri, Alabama allows the use of this method. 

Human Rights Committee held in Ng v. Canada, Communication No. 469/1991 that execution by gas asphyxiation amount to cruel and inhuman treatment. A national court in the USA held in  Fierro v. Gomez, 865 F.Supp. 1387 (N.D. Cal. 1994), that execution by gas asphyxiation is a  cruel and unusual form of punishment. This method is also expensive and cumbersome.

Electric Chair

In this method, a person is strapped to a specially built chair and a jolt is given to him. The intensity of jolt varies according to the weight of the person. Two countries that have ever used this method are the United States and the Philippines. However, the Philippines replaced this with the death squad in 1976. In U.S.A currently, 9 states allow this method.  

The Nebraska Supreme Court in State v. Mata, 275 Neb. 1 N.W.2d 229 (2008) described the electrocution method to give capital punishment as cruel and unusual.  

Stoning 

Stoning basically involves throwing stones on the person until his death. Countries like Indonesia, Iran, Nigeria, Pakistan, Saudi Arabia, UAE, and Yemen allows the use of it. 

The United Nations Human Rights Commission pointed out that execution by stoning was a “particularly cruel or inhuman means of execution” (Resolution 2005/29: The Question of the capital punishment, para. 7(i)).

Lethal injection

In this method, condemned prisoners are injected 3 different types of drugs in lethal quantity. First Sodium Thiopental is injected, to let him fall into a deep sleep. Then after it  Pancuronium Bromide, a muscle relaxer, is injected, it causes the inmate to stop breathing because of paralysis of the diaphragm and lungs. Finally, Potassium Chloride is injected which stops the heart. This method, of all those available, appears to be the quickest and least painful.

This method is the most common form of execution in the U.S.A where most of the execution is done through this method only. Out of  749 executions in the USA up to the year 2000, 586 out of lethal injection. In Baze v. Rees 553 U.S. 35 (2008) the Supreme Court of USA  held that execution of capital punishment through lethal injections does not amount to cruel and unusual punishment under the Eighth Amendment.

Law Commission of India conducted a survey in the year 2003 among judges where 80% of the judges suggested that administering the lethal injection should be the other mode of execution of death sentence in India.

Law Commission of India pointed out in its 187th report that there is a significant increase in the number of countries which have adopted the method of execution by lethal injection.

Comparison of death by hanging with death by lethal injection  

Conclusion

The author would like to conclude by saying that injection is the most acceptable and humane method of sentences and there is a need to bring a change in the present law regarding the execution of the capital punishment in India. The lethal injection should be provided as an alternative mode of execution of death sentence along with the existing mode of execution of as provided in section 354(5) of the Cr.PC, 1973, Army Act, Navy Act, and Airforce Act.

The post Execution of Capital Punishment in India and Changes Required in Present System appeared first on iPleaders.

This article is written by Arkodeep Gorai, who has given a brief overview of jurisprudence in the field of law.

Introduction

Jurisprudence helps a person to understand the deeper meaning of the law. Jurisprudence is an integral part of the law which is based on theories and various analysis. Jurisprudence talks about the relationship of law with other social sciences, society, man and nature.

Meaning

Jurisprudence means the study of law in a logical and philosophical manner. The word Jurisprudence has been originated from the Latin word Juris prudentia which can be broken down into two parts, and that is juris which originated from the word jus which means law and the word prudential which means prudence, forethought or discretion.

Jurisprudence can also be referred to as a legal theory. Jurisprudence gives us an overview and a much more in-depth understanding of the law and the role of law in society. Jurisprudence deals with legal reasoning, legal institutions and legal systems.

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Importance of the study of Jurisprudence

One of the major importance of the study of Jurisprudence is its fundamental value. Jurisprudence mainly comprises of research and the method to construct and clarify the basic concepts of law. Jurisprudence is not concerned with the making of the new laws; rather, it focuses on existing laws in the system and Jurisprudence, and its theories can help lawyers to form a better and much more improved practice.

Jurisprudence can also help students. It has its own scholastic worth in the life of students. Jurisprudence not only focuses on primary legal rules, but it also talks about the social impact of those laws. Jurisprudence combines logical and theoretical analysis of legal concepts. So it proliferates the analytical methods and techniques of a student.

Jurisprudence also focuses on law and its social value. It talks about fairness and the articulation of law. Jurisprudence deals with the basic fundamentals of the law and it is the eye of law. It helps a person to understand the thoughts and divisions of law.

Jurisprudence is also the grammar of law. It helps a person to understand the language and the grammar of law. Legal language and grammar are very different when compared to ordinary language, so Jurisprudence trains the mind of a lawyer so that he can use proper legal vocabularies and expressions.

Jurisprudence provides the rules of interpretation and as a result, it helps judges and lawyers in understanding the importance of laws passed by the legislators.

Jurisprudence and its relationship with other social sciences provide a broad spectrum to students in understanding how law can be related and connected with other disciplines.

Jurisprudence teaches people that an answer to a legal problem is not hidden in the past or awaiting in the future rather than the answer to a legal problem is hidden around them in the fundamentals of legal studies.

Jurisprudence also talks about political rights and legal rights and how the system can strive to balance them out. A student can also look into it with the help of Jurisprudence.

Jurisprudence and its relationship with other sciences

1. Sociology and Jurisprudence

 The sociological approach to Jurisprudence is easily the most important relation between Jurisprudence and other sciences. The reason why it is so important is that the sociological approach is much more concerned in the working of law rather than its fundamentals and basics.

Sociological jurists want to know the effect of law in our society and how law and society work together. Sociological Jurisprudence sees the law as an institution.

Sociological Jurisprudence thinks that laws can be made, transformed and changed according to the needs of society. Basically, it means the law can be adjusted as per societal needs.

 2. Economics and Jurisprudence

Economic studies focus on wealth and its distribution in society with the aim to regulate the lives of people of a State.  Similarly, the law also focuses on regulating the lives of the people through rules and regulations. Initially, the relationship between Jurisprudence and Economics was ignored for a long time until jurists realised the importance of economics in law.

Normative Jurisprudence talks about the stable economic allocation of resources in a society and how it shall reflect consumer preference.

3. History and Jurisprudence

Historical Jurisprudence mainly forms a significant part of legal history as a subject. Law has been around for centuries, and as we know Jurisprudence is the study of law so if we don’t trace back the origin and development of laws, then we are missing out on a theoretical aspect of Jurisprudence.

Development of law through the years gives us an insight, and it helps us to research more about it. Historical Jurisprudence sheds light on the influences that led to the development of a particular law.

4. Ethics and Jurisprudence

Ethics talks about the fact that how the law should be in an ideal state. Ethical Jurisprudence is focused on the fact of how law can be used as an instrument to affirm positive ethics.

Ethics and Jurisprudence state that laws should be based on ethical principles and it should not be treated otherwise. Ethics helps to criticise laws which are unethical in nature.

 5. Politics and Jurisprudence

Political Jurisprudence states that the laws made for people shall be unbiased. There should be no hidden political agendas in law. If a law is politically motivated, then it is clear that such laws shall have no place in our society.

Laws must be influenced by the political environment of a country and that is why countries develop their own constitution which showcases the current social and political needs of a country.

Theories of law in Jurisprudence

Natural Law

Natural law is a part of Jurisprudence, and frankly, there is not a definite way to define natural law. Natural law can still somehow be stated as laws which originated from sources which are other-worldly or some God-like source, basically, the point is natural law did not originate from some political authority or any legislature.

In Jurisprudence, it is believed that Natural law can be applied anywhere in the world i.e. Natural law has universal applicability. Whenever we talk about the term true law it can be said that laws which are obligatory in nature are said to be true law so by that analysis we can say that natural law is not true law.

The reason natural law is not true law because natural law is not obligatory in its true sense. Natural law acts as a defence for moral relativism. Moral judgement varies from places to religion to culture and this theory was ascended by Greek philosophers. The philosophers drew a distinction between the law of nature and conventional human choices and this distinction acted against natural law.

Natural law hence aims to find a common moral ground for different cultures and different religions.  But still, the idea of natural law raises a lot of questions and the biggest and relevant one is whether moral proposition can be derived from the proposal of facts.

A prime example of this question would be people might agree or disagree whether euthanasia is justifiable but then again people would not argue over the justification of punishment over a crime. So it is impossible to affirm the premise and deny the conclusion. Basically, there are still millions of pseudo-theories related to natural law and most of them are not realistic.

So coming to realism and a realistic standpoint at certain cases natural law creates conflict between law and morals. Certain existing laws are inhumane if we consider the theory of natural law. So a law must be analysed on the basis of its efficiency, simplicity and if the law serves a right combination of justice and morality.

Imperative law

Imperative law directly opposes natural law. Imperative law is much more focused on realism when it is compared to natural law. Here in this article, we will discuss Austin’s view on imperative law.

So imperative law is laid down by the sovereign of a country and it is enforced by sanctions, and imperative law is a type of command.

There is a distinct difference between command and law and for a command to qualify as laws that command must be given by a political superior or sovereign. Since this theory defines law in terms of command, sovereign and sanction we can conclude that Imperative theory cannot provide adequate analysis for standard law.

Legal realism

There is a certain similarity between the theories of legal realism and imperative law and that similarity is both the theories sees the law as a type of command.

But in the case of the theory of legal realism, it sees the law as a type of command that must be given by the legislature and for legal realism, the sovereign is the Supreme Court. This approach is used in the United States with Holmes influencing it further. Holmes further states that law, in reality, is judge-made and not made by some supreme power and the actions of courts are not necessarily deduced by statutes and books.

Law of obligation

Law of obligation has been derived from Roman law in its legal sense. Law of obligation can be said to be a relationship of legal necessity in its original sense. All the law of obligation relates to being proprietary rights in its own sense.

In Jurisprudence, a person who gains benefit from the law of obligation is termed as a creditor and the person who is bound by the law of obligation is termed as a debtor.

Schools of thought in Jurisprudence

Philosophical School

The Philosophical School focuses much more in the theory of natural law. This school seeks to find out the reason why a law is enacted and what are the effects of such a law in our society. They believe the purpose of the law is to enhance the nobility of humanity. The philosophical school is not concerned with the analytical and the historical aspect of law.

Analytical School

Analytical School is much more focused on the theory of imperative law. analytical school is related to the origin of civil law. Analytical school talks about the concept of rights and duties and investigates legal models such as acts and contracts.

Analytical school of law believes that law should be codified and the law must be governed by the state with the aim of the benefit of people.

Historical School

The historical school believes that law is a consequence of years of growth of our society. The historical school believes that the sources of law are customs, religious philosophies and societal rules.

Historical school is too much dependent in the past and as a result, it becomes much more conservative but still after such conservatism, the historical school states that law must change with the people.

Realist School

Realist school is technically not a school of jurisprudence; rather realist school is tutoring of thoughts. In realist school, they are much more focused on the actions of the court and what they create. Realist school merely does logical assumptions from the general law.

Sociological School

Sociological school concentrated more on the function of law rather than its intangible content.  The sociological school came into existence due to the accumulation of various thoughts of jurists. The sociological school wanted to connect law with society and law can be adjusted according to the needs of the society. Sociological school talks about legal institutions, doctrines and other theoretical aspects of the law.

To know more about schools of Jurisprudence in detail please Click Here.

Famous jurists in Jurisprudence

Aristotle is also known as the father of natural law. He talked about the importance of natural law in the society and as we know he was correct since even in modern times a lot of tribunals across the world function on the basis of natural law and natural justice.

Thomas Aquinas distinguished four kinds of law and they were eternal law, natural law, human law and divine law. So for him, eternal law was made by God himself and natural law is discovered by motivation from the eternal law. Divine law are the laws which are God’s scriptures and human law is made by man.

John Austin opposed the theory of natural law. He wanted to convert law into science and he was positivist. The reason why he was a positivist is that he believed all the laws that are existent today can be drawn back to mortal lawmakers.

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Conclusion

So in this article, we saw how Jurisprudence is different from the law we practise in general. Jurisprudence helps lawyers and judges to find the real sense of law. We came across various legal theories and how they have affected society and the law. Jurisprudence is an important part of the law and it can never be separated from it.

The post Introduction to Jurisprudence appeared first on iPleaders.

This Article is written by Abhyuday Agarwal COO, lawSikho after obtaining inputs from Dhruv Kumra, Pranay Agrawala, founding partner at Panda Law and Vishakha Gupta)

When you decide to work as a litigator or a corporate lawyer with respect to a particular area, it is important to break down the types and categories of work and the clients you could work for in that area. You can then start identifying the skills one by one.

And there is one area that is hard to ignore: that is real estate litigation. The sector is not doing particularly well, and that has increased the legal work phenomenally.

If you want to be a litigator, even if you do not want to exclusively handle real estate litigation, you should know that it does form a tangible chunk of the practice of most litigators, at least in their initial years. 

This is especially true if you are outside of the two largest legal markets, Delhi and Mumbai. In those cities you may still manage to survive without doing real estate in the initial years, but that’s not so if you are anywhere else city or town.

Some of the real estate litigation work is traditional or classical – property disputes around sale transactions, succession-related work, eviction of tenants etc. but there are various other categories of work which lawyers frequently fail to pay attention to and therefore miss a big opportunity.  

Lawyers who are not skilled in the kind of work I am talking about will have no option but to refuse matters periodically. It could be worse, too, and some of them may not even realise that they are missing out on a big opportunity. 

Our view is that performing real-estate related work is really mainstream, it is easy to learn and will complement your practice with respect to other areas, so it’s best not to ignore it.  

If You are a Litigator, You can’t Afford to Miss out on this Work

Consumer Protection (for consumers and builders) 

Consumer-related litigation has been common in case of delayed possessions, refunds and interest or compensation for some defect in the flat or change of terms of allocation. 

If you are representing a builder, you may need to defend the builder in multiple litigations across multiple consumer forums. 

Claims of consumers may not individually be of a huge amount, so many lawyers assist consumers in creating a consumer association and in filing a combined claim. It may also enable one to bring such a claim within the jurisdiction of a higher forum (state commission or even National Commission). 

RERA-related regulatory and litigation work

RERA-related litigation work has been brought online in many states. In other words, you can go online on the state RERA’s website and file a claim against a developer for circumstances such as not providing possession. Personal presence is only required at the stage of a hearing.  

However, some of the drawbacks or disadvantages of this route are: 

RERA doesn’t have appropriate staff and tribunals constituted in all states

• The interest awarded is lower than in a consumer dispute 
• Adequate enforcement-related powers are not provided

If you are working for a builder, you may primarily perform compliance-related work and maybe even defend the builder in criminal proceedings, through compounding and other methods. 

IBC-related litigation

Insolvency and Bankruptcy Code (IBC) related litigation against builders is very common since the Code was passed. Such litigation could be initiated by one or more flat-owners, or from banks or financial institutions in respect of loans they may have provided to construct a project. For example, in the case of Jaypee insolvency proceedings were first initiated by lenders, but proceedings against Emaar MGF were initiated by flat-owners. 

After the proceedings are initiated, all the operational and financial creditors get involved, and where the claims are of a high amount, each party may have its own lawyers. 

You could also represent the builders’ case, or work for a resolution professional after the petition against the builder has been admitted by the National Company Law Tribunal.

Where all other litigation and enforcement action proves to be ineffective, IBC-related action usually comes to the rescue of those who are adversely impacted.  

If you intend to specialize in such litigation, you will need to know how IBC proceedings can be initiated in the context of real estate developers and how subsequent steps of restructuring pan out, the kinds of settlements (if any) or restructuring plans that are arrived at, etc. Industry research about past scenarios and how they have been handled will be very important. 

Remember that both flat-owners and lenders qualify as financial creditors under the IBC (flat-owners are to be treated as financial creditors through an amendment of IBC).

Competition Act-related litigation

The competition law judgment in the case of homebuyers against DLF is famous. However, a significant chunk of flat-owner litigation against builders under Competition Act had taken place in the pre-RERA and pre-IBC era, where flat-owners approached the Competition Commission for abuse of dominance-related malpractices such as change of area, layout, etc. I also found an interesting case filed by an association of real estate developers (CREDAI) against Haryana Urban Development Authority (HUDA) for allocation of development licenses in the Sohna region. It was an innovative use of the law. 

Sometimes, as an emerging lawyer, you may not have the opportunity to represent an industry behemoth. In such cases, acting for an underserved category of people may also be worthwhile, even if they cannot remunerate you. It is a great opportunity to build your own credibility, get face-time before a court in a relevant matter (which could be accompanied with a lot of press coverage). For example, representing the homebuyers in the competition case against DLF was an important moment in the professional journey of Vaibhav Gaggar, a Delhi-based litigator who runs a full service law firm Gaggar and Associates and has also entered into an SPV with Anand and Anand (see here).  

Title, ownership-related and land-use disputes

This is the classical property-related litigation that any general practitioner who litigated would come across. 

Title-related disputes around ownership of property or eviction of an unauthorized occupant are the most standard kind of real estate litigation. These litigations can be of the following kinds: 

• Litigation around agreements to sell 
• Litigation involving tenancy rights, eviction and contractual lease termination 
• In some cases arbitration-related work may be prevalent
• Litigation-related to succession laws (testate and intestate succession to property) 

There may also be land-use and other disputes with a local authority. In Delhi, property sealing-related litigation is common. 

Writ petitions are usually filed under Article 226 to handle a dispute with a local authority. 

Contractual disputes around joint development agreements

Various kinds of contractual disputes around joint development agreements may arise between the developer and land owners who have given the developer the right to develop, market and sell the flats as per a joint development agreement. This is largely around the terms of the contract.  

Usually, such disputes involve contractual matters, such as insufficient share of land or revenue being allocated to the landowner, cost-related aspects or timely delivery of the property. If you are acting for a builder, there can frequently be stamp duty and other tax-related work to take care of. 

If a developer is working with multiple landowners, these matters can be of a sizable value.  

Joint development contracts frequently contain arbitration clauses. (Note that where the dispute does not involve statutory terms such as tenancy-related rights, the subject matter is capable of being determined by arbitration.)

Slum Rehabilitation-Related Litigation

Many states have passed slum redevelopment-related legislation, which enables a private builder to create a housing complex for a set of slum-dwellers, and sell additional floor space to third-party buyers. 

This method serves a dual purpose – it results in the builder making a commercial profit and also results in resettlement of slum dwellers. 

As an example, slum redevelopment work in Maharashtra is performed pursuant to Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 and the applicable  Development Control Regulations. 

Litigation around the issuance of letter of intent by the slum redevelopment authority, non-performance by the developer, etc. Sometimes, a developer may challenge the action of the SRA, the housing society or the individual slum dwellers before the slum development authority. 

If you are an in-house counsel representing a real estate developer or you have a retainer arrangement with a developer, you are likely to be involved in litigation on with respect to one or more of the above areas. 

Urban Development Authority-Related Matters

Many Indian cities and states such as Ahmedabad, Haryana, Mysore, Surat, Vishakhaptnam, etc. have an urban development authority to take up development-related work for the city. State-level laws regulate the functioning of such an authority. Any city where rapid urbanization is happening can be a promising place to perform such work. 

One such example is the Haryana Development and Regulation of Urban Areas Act, 1975. Under this statute, private landowners can offer their land to the authority by making an application to the urban development authority for development into a colony. As they may not themselves have prior experience of having constructed a colony, they enter into a collaboration agreement with a builder who can show such experience in the industry. The Haryana law allows this.  

Litigation against the authority may be initiated by a developer or an individual for various kinds of development-related work. 

Land Acquisition-Related Litigation

Where land is acquired by the government and later developed into a private colony, such litigation will be prevalent. You could represent a class of farmers or people whose land is acquired or represent the government (by being on a panel for a state authority). 

Note that land is acquired either under the Land Acquisition Act or under special statutes such as the NHAI Act (for construction of highways), AAI Act (for aerodromes, airports, etc.). 

Who will be your clients?

As a real estate litigator, you may act for real estate builders, contractors, engineers, service providers of all sorts, individual property buyers, landlords, tenants, lessees and lessors, represent a category of consumers in a bulk matter, a state entity as its standing counsel or in some cases for a lender or financier. 

Preparation

Now that you have a perspective of the types of litigation work real estate lawyers perform, it is time to create a strategy for preparation. 

How you prepare is important. As is evident from reading above, mere knowledge of Transfer of Property Act as we study alone is not sufficient to build the skills necessary to perform the work in this area. 

Real estate is a vast sector, and knowledge of real estate-related laws, contracts, development practices (see this course to learn these in 12 weeks) and various other laws (not specific to real estate) and litigation proceedings is important to perform such work regularly. 

In a way, real estate litigation, and most other forms of litigation is also inter-disciplinary. One cannot restrict oneself to one or two statutes or types of work anymore. It is important to develop your strength in using multiple systems of law, strategies and processes to achieve an effective litigation outcome for a client. You need to learn about IBC, Company Law, Arbitration, Consumer Law and what not. This forms the underlying philosophy of a new Litigation Library we have created, which consists of a combination of existing and to-be launched courses.

All these courses have a unique exercise-driven methodology (along with 24×7 access to online study materials) and online classes that enable you to acquire specific skills pertaining to each type of work and service that a legal practitioner practising in each of the areas covered can provide. It is highly interactive and focussed on problem-solving skills, to develop one’s capacity of performing real work.

We are currently testing this at a deeply discounted membership model price with 20 seats only, and have very few seats available now. Those who are interested can reach out to us.

The post If You are a Litigator, You can’t Afford to Miss out on this Work appeared first on iPleaders.

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

Most people have great intentions. And it is said that the highway to hell is paved with good intentions.

Most people intend to work out for example. They feel great about their intention. They almost feel like a fitness freak without ever working out because they strongly believe in the need to work out. They are “pro working out”. They think about working out a lot. They talk about it a lot. They buy gym clothes and nice shoes. They read a lot of articles about it and follow all the right hashtags on Instagram.

And it makes them feel like they are doing something. They feel accomplished until they see themselves in the mirror.

Intentions don’t move the needle. For that you need action. But we are totally capable of creating an illusion of achievements without any action being taken, simply with our intention, mental preparation and what not. It’s not real progress, but an illusion of progress.

And action is damn hard. There is so much inertia. How do I get started? Where do I even begin? 

It is so much more tempting to feel good by having the right intentions, making the grand plans, talking about how you are going to get the beach body within months. 

Actual work is a different ballgame. 

You need to stop the game of mental preparation which is another form of procrastination. You have to stop justifying various kinds of procrastination including cultivating good intention, incessant research and waiting for the perfect moment.

You have to do it. You have to take action, no matter how small. Then the needle will begin to move very slowly, a little by little, as you keep doing more and more work.

It is not like things get easier after you get started. Yes, the beginning’is an important milestone. 

But it is even harder to keep going at it, through sunny days, rainy days and cloudy days. There are always so many distractions. There are always so many unforeseen challenges. There are always random things that throw you off track.

So what do you do?

You bring out the big gun. Will power. You want to blast through all obstacles by firing from your will power gun. And this gun is supposed to never run out of bullets. At least that is what you think in your head. So you bravely venture out into the territory of danger, relying on this gun.

And it rarely works. You return defeated. One more time. The prize remains unachieved. The goals unattained. And you think, man I need a bigger gun. I need to strengthen this gun of mine, so next time I go out I can win.

 And the cycle repeats.

Will power, like guns, is a handy tool. But no general goes on a war relying on the guns, no matter how big those guns are. Sure the guns have their role to play, but an army general who thinks the side with bigger guns will always win must be cuckoo.

So what does a general do? He has battle plans. He has systems. He has intelligence reports. Airstrike has to perfectly coordinate with ground forces. He chooses to open new fronts to distract the enemy or concentrate his force at once place, depending on how he is situated He has a massive system in place to make sure that the war is won.

Well coordinated systems win a war. Not the biggest guns. Even the biggest guns can be sabotaged, rendered useless or simply turned upon the owner of the gun. 

Germans called it the Wehrmacht. The War Machine.

A machine is a system with many moving parts. That’s what you need to win a war. The more sophisticated systems you have, more the chances you will win a war.

Sure the dedication of soldiers and bravery also counts. But could we win wars without logistics? 

We lost the China war in 1961 because we did not have enough roads on our mountainous north frontier, and we could not send enough logistical supplies, arms, equipment or even food to our troops in time! Mobilizing a large number of troops quickly is critical to win a battle but very hard without logistics being perfect.

And that requires a seamless system. And that is something our army is focussed on building after the lessons of the China war. Did you know that our army has a roads division? There is a Border Roads Organization under the Ministry of Defence, which was set up in 1960, just before the China war. Army has a separate corps of engineers also.

After the Doklam Standoff in Bhutan, what was the first thing that the Chinese did? They built more roads in that area on their side. 

Who won the world war? The German war effort was led by army generals. The British won against all odds, again and again, thanks to superior intelligence, code breaking efforts which meant they could read important German communication, and their scientists!

Systems won the brutal war. Not iron will, nor military might. Hitler could not imagine that his huge military could be defeated because it was much superior. He had bigger guns. But he lost to a superior system.

In your life, therefore, if you are not building systems and relying on the will power to get things done, you are making a great mistake.

Success in life is about building fantastic habits, great systems that reinforce those habits and discipline to keep working on putting in place better and better systems as you grow and outgrow your systems.

You have finite will power. Use it to build systems that will serve you in the long run when your will power will not be needed. 

For example, if you want to drink more water every day, placing two or three bottles near your bed before you go to sleep is an amazing idea. 

It is much better than relying on your memory to drink water in the morning. If there is a bottle near your hands, it is highly likely you will drink from it. 

Systems make desirable actions easier.

Here is another example. You think before going to sleep at night that tomorrow morning I will go for a run or cycling as you please. How many times you do not feel like it in the morning and use some excuse to skip it?

Now imagine you kept your running or cycling clothes on the bed before you went to sleep and the shoes and socks right next to the bed.

Does your chance of following through increase? Absolutely. By making the first step easier with a system, or logistics, you are increasing your chances of working out in the morning.

You may have noticed that various wrist bands that measure your sleep and how many steps you walk etc are very much in vogue these days. Why? Simple. From personal experience, when you start to see how many steps you walked every day or what was the quality of your sleep last night, you begin to care about it. Suddenly you start trying to sleep better and walk more on every opportunity you get.

My life is full of various systems I have introduced. And I am also introducing new systems all the time.

Here are some examples:

I have invested in an exact body weight training program with specific daily plans that I can follow in my home. I know it’s hard for me to go to a gym, and if I enroll myself I find it hard to go due to time constraints. I also bought some gymming equipment like a pull up bar and kettlebell and placed them in my bedroom. This increase my chances of working out. The results in last 2 months have been very visible as my physique is changing.

I have a specific time in the day which is dedicated to training my sales team. I do nothing else at that time. When I did not have a fixed time, sales training was uncertain. Now it’s a fixture, even if I cannot be present. I have a colleague who is designated to lead it whether I am there or not. This is a system versus I trying to find opportunities to do sales training whenever possible.

I have reminders in place to make me do half yearly full body check ups and yearly reminders to renew my insurance. These are critical! Are you going to rely on your memory or your insurance agent? Or create your own system so that you don’t miss anything?

Systems will win over will power, every time, simply because systems are more sustainable and long term.

What systems are you building or implementing in your life?

Do you have a system in place to regularly update you on new areas of law and systematically engage in learning and development?

Lawyers who regularly learn new skills in a systematic way will always beat the ones who have no such learning and development systems.

At LawSikho we have created some very advanced learning and development systems for lawyers, which you can simply buy and deploy, and then just follow our weekly plans. We will teach you 2 new skills every week, that’s it.

Slow but systematic wins the race.

Here is an incredible offering for all litigators: Litigation library by LawSikho

Here are our diploma programs you want to enroll into:

Diploma in Intellectual Property, Media and Entertainment Laws  

Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution 

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

Diploma in Cyber Law, Fintech Regulations and Technology Contracts 

Diploma in Entrepreneurship Administration and Business Laws 

Diploma in Companies Act, Corporate Governance and SEBI Regulations 

The post Will Power v. Systems – Guess Which One Wins Every Time appeared first on iPleaders.

This article is written by Vanija Bijmohan, pursuing Certificate Course in Intellectual Property Rights from LawSikho. Here she has discussed on copyrighted materials.

Introduction

In general, Copyright means “right to copy”. Copyright is an intellectual property right. Copyright is the bundle of legal rights of the creators of literary, dramatic, musical and artistic works, and producers of cinematographic films and sound recordings. The Copyright Act of India 1957 (hereinafter referred to as “ACT”) came into force from January 1958. This ACT has been amended six times. The most substantial amendment was in the year 2012. This amendment includes the ACT in conformity with the WIPO Copyright Treaty (WCT) and WIPO Performance and Phonograms Treaty (WPPT) to protect music and film industry and any concerns of physically disabled.

An act of infringement in the ACT

This ACT gives the exclusive rights of copyrighted materials to the owner to reproduce, create adaptation, translation, performance, display recording of broadcast and distribution, unless and until it becomes public domain. When any other person uses such copyrighted materials without proper authorisation of the owner, the act is considered as an infringement.

The ACT specifically states the circumstances under which the act of a person will be deemed as an infringed act:

1. When a person does not have a license to use copyrighted material and if in any case, he has a license he acts in contrary to it. It includes making and reproduction of unauthorized copies and any performance in public.
2. When a person makes copies for the purpose of sell sale or hire, distributes and exhibits in public for sale of trade which adversely affects the interest of the owner.
3. Imports any infringed copies of work.

Fair use or fair dealing is an exception to the act of infringement

Fair use or fair dealing is an exception to the Act of an infringement. The Act does not define the term fair use. The meaning of the fair use is always interpreted by the courts depending on the facts of each case. When any person uses any copyrighted materials for fair dealings, he does not require any prior authorisation from the owner and such act will not be considered as an infringement.

The ACT deals with the various situations under which the acts of fair dealing are covered.

Situations under which use of copyrighted materials in educational institutions are allowed but subject to certain limitations

Educational Institution means an institution where people go to acquire specific knowledge in the form of education. Few examples of such institution are preschool, school, colleges, professional colleges, and universities.

The Act explicitly provides the provisions related to the fair dealing of copyrighted materials for educational purposes. Fair dealing is an exception to the exclusive rights granted to the author for his creative and original work. Fair dealing allows the educational institutions to reproduce or use of the copyrighted materials.

Click Above

Following are the provisions which broadly enumerates of fair dealing of copyrighted materials in an educational institution:

1. The reading or recitation in public of reasonable extracts from a published literary or dramatic work is allowed;
2. The publication in a collection, mainly composed of non-copyright matter, bona fide intended for instructional use, and so described in the title and in any advertisement issued by or on behalf of the publisher, of short passages from published literary or dramatic works, not themselves published for such use in which copyright subsists:
   This provision is limited and states that;
   1. only two such passages from works by the same author are published by the same publisher during any period of five years;
   2. In the case of a work of joint authorship, references in this clause to passages from works shall include references to passages from works by any one or more of the authors of those passages or by any one or more of those authors in collaboration with any other person.
3. The reproduction of any work will be allowed in the following circumstances only:
   1. By a teacher or a pupil in the course of instruction; or
   2. As part of the question to be answered in an examination; or
   3. In answers to such questions
4. The performance in the course of the activities of an educational institution, of a literary, dramatic or musical work by the staff and students of the institution or of cinematograph flight or a sound recordings; this exception is available only when the audience for such performance is limited to staff,  students, parents and guardians of the students and persons connected to such activities of the institutions or the communications of such audience of a cinematograph film or sound recording.
5. The reproduction for the purpose of research or private study or with a view to publication of an unpublished literary, dramatic or musical work kept in library or museum or other institutions to which the public has access. This reproduction is limited to;
   1. In case the author is known to the library or museum or to any other institutions then reproduction will be allowed only after the 60 years from the death of the author.
   2. In case of a joint ownership, reproduction is allowed after 60 years from the date of the death of the author whose identity is known;
   3. In case of joint ownership, the identity of more than one author is known then reproduction will be allowed only after 60 years from the death of the author who dies last.
6. Any performance of a literary, dramatic or musical work by an amateur club or society subject to such performance would be for a non-paying audience or for the benefit of religious institutions. 
7. Any act in relation to the translation of a literary, dramatic, or musical work, or the adoption of a literary, dramatic, musical, or artistic work as they apply to original work itself.

Modern technology and educational institutions

The emergence and advancement of the information technology changed the ways for storing and transmission of information. Digital technologies have been used in educational institutions. Virtual classroom, online courses and distance education become part of education. It has made copying any copyrighted materials easy and protection of such materials has become very difficult. Therefore, an introduction of technology measures like encryption becomes essential for educational institutions who are providing online education.

Scenario where course packs of copyrighted materials for education purpose is allowed

In “University of Oxford and others vs Rameshwari photocopy services” known as the DU photocopy case. In the year 2012, the publishers filed an injunction suit against Delhi University and Rameshwari Photocopy for infringement of the copyright materials. They contended that the Delhi University made photocopies of some books and made a compilation of it as a course pack for the purpose of the study and provided those course packs to students on payment of nominal charges. The publishers claimed that it is a clear case of infringement and course packs needs to be stopped. The publisher further claimed that permitting photocopies would cause damage to the publication publishing industry.

Delhi University and photocopy service provider taken defence that the course packs are cover under the fair use of copyrighted material. They mentioned clearly that the entire compilation was extracted from different books and the sole purpose was to use in the course of instructions by a teacher. 

Delhi University further submitted that all students would not be in a position to purchase all books required in the offered course. Hence, the best possible way is to avail them by providing compiled study materials.

In 2016, a single judge of the Delhi High Court ruled against the publisher. He mentioned that the compilation of study materials from various books and making course pack protected as fair use of the copyrighted materials. Hence, no infringement of the copyrighted materials. 

Being aggrieved by the order of the single judge Delhi High Court the publishers filed an appeal to the Division Bench of Delhi High Court. On September 2016, the Division Bench of Delhi High Court remanded the suit to the single judge Delhi High Court on the ground that compilation of course pack would be in the use of the course of instructions by the teacher.

On March 2017, The publishers withdrew the case from the Delhi High Court stating that they understood the crucial role played by the course packs in the education of the students.

On December 2016 a Special Leave Petition was filed before the Hon’ble Supreme court by the Indian Reprographic Rights Organization. In this petition, they challenged the decision of the Division Bench of the Delhi High Court who ruled that the course packs in India is legal for the purpose of education.

Hon’ble Supreme Court upheld the decision of the Delhi High Court on 9th May 2017 and dismissed the petition. The very basis of this case that the Supreme Court has taken into consideration the socio-economic conditions of India, the realities of the education system and above all affordability of students due to growing modern technology in the education system.

Fair use or fair dealing in various countries

Like India in Australia, UK and US Copyright laws specifically state that fair use of a copyrighted work or materials by educational institutions is not an infringement. Fair use involves the reproduction of copyrighted materials and any other uses that would be considered as an infringement.

Whereas, in countries like France, Germany, Spain, Netherlands, Sweden and Switzerland no statutory provisions are there to deal with fair use.

Conclusion

In India, copyright laws related to the usage of copyrighted materials in the educational institutions are very clear and strong. The fair dealing of copyrighted materials for educational institutions is limited to the extent it is used “in the course of instructions”. 

Today, we are living in the digital era and many people are learning and gaining knowledge through the internet and digital technology. This new concept of learning and using of copyrighted materials for educational institutions is well protected, if reproduction is done during the course of instructions and for non-commercial purposes only. Still, there are many techniques by which reproduction of copyrighted materials can be done by an individual. For example. If a student enrolled for a particular online course and pays a fee for it. He gets access for copyrighted material. He copies them on his mobile and forwards it to his friends for their personal usage. Even though he is not copying for any commercial purpose, such acts needs to be stopped.

Hence, we required to set up a new and clear guidelines regulate the fair dealing or fair use of the copyrighted materials to combat with the arising issues in respect to the uses of emerging digital and modern techniques of education.

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 Can an Educational Institution use Copyrighted Materials? If yes in Which Situations and to What Extent? appeared first on iPleaders.

This article is written by Himank Dewan a 5th-year student at Bharati Vidyapeeth Deemed to be University, Pune. This article talks about maintenance which is provided to the parents, wife, and children, it also talks about the amendments which have been made in the different states regarding maintenance to parents, wife, and children.

Introduction

Not every living person has a happy beginning, some children never know their fathers after their birth and have to adapt to the world without the help of a father figure. Some women are not living a happy married life, or are subjected to cruelty, or are not even provided basic amenities by their husbands, and the parents who have looked after their children’s happiness all their life are left abandoned by their children, with no one to look after them or no way to look after themselves.

Under this topic, I will be discussing maintenance and its provision and the amendments which have been made by different states.

Statutory Provision

Hindu Adoption and Maintenance Act, 1956 – Under Section 3(b) of the Act maintenance includes an arrangement for nourishment, clothing, residence, teaching and medical attendance and treatment.

Criminal Procedure Code, 1973 – Section 125 of the Act empowers wives, children and parents to claim maintenance from their husband, father or son who has adequate means, either neglect or ignores to maintain them. Upon such consideration, a law officer of the first class may, upon proof of such neglect or rejection, order such individual to offer a monthly leeway for the support of his spouse or such child, father or mother, at such monthly rate in that capacity Magistrate thinks fit.

Who can claim maintenance?

The following individual can claim maintenance under Section 125 of Crpc from husband, father or son or daughter:

• Spouse of the husband who is unfit to look after herself.
• A legitimate or an ill-conceived kid who is below the age of 18 years and who is unfit to look after themselves.
• A legitimate or an illegitimate kid who has attained the age of 18 years however for reasons unknown is unfit to look after itself due to their psychological or physical deformity, or until they can maintain themselves. Daughters who are married are barred from this clause.
• Father or mother of an individual who is unable to look after themselves.

Others who can claim maintenance and from whom?

• Daughter is liable to pay maintenance to parents: It is simply not the son that is required to look after his parents, the same and equal obligation lies on his sister or on the parent’s daughter. The primary condition for them claiming maintenance is that they are unfit to care for themselves or are unfit to maintain themselves. The crucial factor while considering the maintenance claim of parents from the daughter for the court is that they should be pleased by the knowledge that the daughter has appropriate means of her own and is independent of her husband.
• An adoptive mother can claim maintenance: In the case of Baban Alias Madhav Dagadu Dange v. Parvatibai Dagadu Dange, the High Court of Bombay observed that according to the definition given under the General Clause Act, the term “Father” includes both biological as well as an adoptive father. Whereas the General Clause Act has not expressed the term “Mother”, that does not mean that the term should be taken in a restrictive sense. Now if the term “father” and “son” is given a wider interpretation, then there is no valid reason that the term “mother” shouldn’t be given the same wider interpretation so as to include “adoptive mother as well”.
• Stepmother can claim maintenance: In the case of Kirtikant D. Vadodaria v. State of Gujarat and Ors., the Hon’ble Supreme Court held that “a childless stepmother may guarantee support from her step-son provided she is a widow or her mate, if living, is unequipped of supporting and looking after her”. However, the Hon’ble High Court of Karnataka in Ulleppa v. Gangabai provided its view to the judgment pronounced by the Hon’ble Supreme Court in the case. The court observed that if it is proved that the stepmother has alternative modes of supporting herself she may be unable to get support from her stepsons. 

Factors for Claiming Maintenance

Conditions required for claiming maintenance is firm on various factors:

• No separate source of income- When the wife, child or the parent don’t have another source of income, then they can claim maintenance from their spouse, father or child. But the most critical issue to consider before conceding divorce settlement is to ensure whether the spouse claiming maintenance has any other source of income or is absolutely subject to the income of the individual. 
• Expenditures compulsory to maintain the offspring or parents who are unfit to care for themselves.
• To maintain a specific way of living which was given to the wife, before the separation. 
• Providing maintenance to the spouse for developing abilities, capacities and providing educational background so that he/she can acquire a living and maintain themselves.

Who cannot claim maintenance

Maintenance cannot be asserted by the following people:

• A spouse, child or parents who are able to look after themselves cannot claim maintenance.
• A spouse who has been separated and has remarried.
• In the event that the partner is living in infidelity or with no ample reason refuses to live with her mate or has been mutually separated with her mate.

Types of Maintenance

Maintenance is of following types-

• Temporary Maintenance – It has been seen that maintenance continuing under section 125 takes a long period of time to deliver relief to the distressed party. That is the reason the court has given an express arrangement wherein the motivation behind Temporary Maintenance to meet the vital and immediate expense of the distressed party. This is further provided under Section 24 of the Hindu Marriage Act, 1955.
• Permanent Maintenance – This is the last maintenance that is given after the procedure has been disposed of. In this, the maintenance can be allowed on a periodical basis or on a one-time basis or on a continuous basis.

Amendments made by different states

Under Section 125 of the Criminal Procedure Code, the following amendments have been made by different states:

• Madhya Pradesh– In its submission to the State of Madhya Pradesh, 
  1. The words “five hundred rupees” under subsection 1 has been substituted with “three thousand rupees”.
• Maharashtra- In its application to State of Maharashtra, 
  1. The word “not exceeding five hundred rupees” under sub-section (1) has been substituted with “not exceeding fifteen hundred rupees”.
  2. The accompanying proviso has been embedded before the existing proviso, “Given that, the Magistrate on an application or admission being made, upheld by an affidavit by the individual who has applied for the maintenance under this subsection, for instalment of interim maintenance, on being fulfilled that there is a first sight ground for making such order, may coordinate the person against whom the application for upkeep has been made, to pay a reasonable amount by way of interim support to the candidate, pending the final disposal of the support application:
     • Given further that, such request for compensation of interim maintenance may, in an appropriate case, likewise made by the Magistrate ex-parte, pending administration of notice of all the admission, subject, nonetheless, to the condition that such a request shall be capable to be changed or even void after the respondent is heard in the issue:
     • Given also that, subject to the upper limit laid down under this subsection, the sum of interim maintenance shall, as far as practicable, be at 30% of the monthly income of the defendant”.
  3. The following provision has been embedded after subsection 2,“(2-A) Despite anything generally contained in sub-section (1) and (2), where an application is made by the spouse under provision (a) of sub-section (1) for the support allowance, the candidate may seek relief that the order may be made for instalment of support allowance in lieu of the payment of monthly support remittance, and the magistrate may, in the wake of mulling over all the circumstances obtaining in the case including the variables like the age, physical condition, financial conditions and other liabilities and commitment of both parties, pass a request that the respondent shall pay the support allowance in lump sum in lieu of the monthly upkeep allowance, covering a specified period, not surpassing five years at a time, or for such period which may surpass five years, as might be mutually consented to by the parties”.
  4. The following “either under sub-section (1) or sub-section (2-A), as the situation may be,” has been embedded in subsection 3 after the words “ so ordered”.
  5. The following words “or, as the case may be, the lump sum allowance to be paid in lieu of the monthly allowance” has been embedded after “each month’s allowance”.
• Rajasthan– In the submission to the State of Rajasthan,
  1. The word “five hundred” occurring after the words “at such month to month rate not surpassing” and before the words “rupees in an entire” substitute “two thousand five hundred”. 
• Tripura– In the application to the State of Tripura,
  1. The words “ five hundred rupees” shall be substituted for “one thousand five hundred rupees”.
• Uttar Pradesh– In the submission to the State of Uttar Pradesh,
  1. The words “rupees five hundred” under sub-section (1) have been substituted with “ rupees five thousand”.
  2. The following has been embedded after sub-section (5) “(6) Where in a procedure under this section it gives the impression to the Magistrate that the individual claiming maintenance is in need of quick relief for his support and the essential expenses of the procedure, the justice may, on his application, request the person against whom the upkeep is claimed, to pay to the person asserting the upkeep, during the pendency of the procedure such month to month remittance not exceeding five thousand rupees and such expenses of the procedure as the Magistrate considers reasonable and such order shall be enforceable as an order of upkeep”. 
• West Bengal– In the application to the State of West Bengal,
  1. The words “rupees five hundred” under sub-section (1) have been substituted with “rupees one thousand five hundred”.
  2. The accompanying proviso shall be embedded after the following proviso “Provided further that wherein a procedure under this section it appears to the justice that the spouse alluded to in clause(a) or the minor kid alluded to in clause (b) or the child (not being a married daughter) mentioned in clause (c) or the father or mother mentioned in clause (d) in need of prompt relief for her or its or his support and the vital expenses of the procedure, the Magistrate may, on the application of the spouse or the minor child or the child (not being a married daughter) or the father or the mother, as the case may be, request the individual against whom the stipend for upkeep is asserted, to pay to the litigant, pending the decision of the procedure, the expense of the procedure, and month to month during the procedure such remittance as, having regard to the income of such individual, as it may seem to the Justice to be sensible”.

Amount reasonable for the wife as maintenance

In the case of Kulbhushan Kumar vs Raj Kumari & Another, the Hon’ble Supreme Court observed as follows-

“That the Maintenance given to the wife was determined by the court as the decision was taken keeping in mind about the situation, that the wife was receiving money from her father.”

Facts of the case 

The appellant-husband and the respondent-wife married in the month of May 1945. At some point later, the husband did not have any desire to live with the wife, and there was a complete disaffection between both of them. A daughter was conceived in August 1946. 

• In the year 1951, the respondent sent a registered letter asking support, on behalf of herself and the girl, and by the year 1954, she had filed a suit for maintenance.
• During the procedure, the Hon’ble High Court considered that the litigant was a Reader in Medicine accepting an income of about Rs.700 and more than Rs.250 consistently by way of private practice. The date of the establishment of the case was fixed by the High Court for the payment of the maintenance to the respondent.
• The Hon’ble High Court decreed, fixed the maintenance payable to the respondent, under the Section 23(2) of the Hindu Adoptions and Maintenance Act, 1956, at Rs.250 subject to a further reaches of 25% per month of the pay of the appealing party as directed by the income-tax authorities, and Rs. 150 as the support of the young lady.
• In this appeal to the Supreme Court by the respondent bought up the question for the loyalty of the maintenance payable to the wife.

Judgement of the case 

The Court held that:

1. irrespective of the circumstances that the wife had received some money from her father consistently, it can only be perceived as a gift, not as her income. In this manner, it couldn’t be considered under Section 23(2)(d) of the Act in deciding the amount of support;
2. There was no sign of her acquiring any property of her father on his demise;
3. The amount payable by a method of maintenance relies upon the realities of each case and the Judicial Committee, in Mt. Ekradeshwari v. Homeshwar, did not set out any guidelines identifying to the degree of the husband’s ‘free-income’ which would be payable as upkeep to the wife.

In the conditions of this case, no omission could be taken to the sum fixed by the High Court as well as the date, from which the maintenance would be claimable. In deciding the limit at 25% of the ‘free income’ of the appellant, a sum payable towards income tax, compulsory provident fund, and other expenses for maintaining the vehicle for professional purposes as permitted by the income tax authorities ought to be allowed as deductions from the husband’s total salary.

The post State amendments to the maintenance of wife, children & parents appeared first on iPleaders.

This article is written by Amandeep Kaur, a student of Symbiosis Law School, Pune. The author in this article has discussed in detail the long journey of section-377 of IPC, its history, challenges faced and finally decriminalization of section-377. 

Introduction

India has acquired a place among the 28 countries of Asia to legalize homosexuality and to recognize LGBT rights. The judgment passed in Navtej Singh Johar v. Union of India has changed the life of many in the country. Prior to this judgment, the Lesbian Gay Bisexual Transgender Community didn’t have such rights as Homosexuality was a punishable offence under sec-377 of the Indian Penal Code, 1860.

Historical Background of Section-377

Homosexuality was never a crime or punishable in ancient India. There are many instances which prove this point. Following are some of the instances:

• Khajuraho Temple- the famous temple situated in Madhya Pradesh is decorated with many sculptures reflecting sexuality in ancient India. It was built in the 10th century by rulers of Rajput Chandela Dynasty. One may not find any other temple in India depicting all the emotions of human nature. Some of these sculptures also display homosexual acts which prove the existence of homosexuality in ancient India.   
• Manusmriti- it is one of the famous law code which was followed by a majority of the people at that time. It prescribes punishment for the homosexual acts performed by either man or woman. Though this script does not approve homosexual acts it does prove the existence of homosexuality at that time. 
• Arthashastra- it is popularly known as arthashastra of Kautilya which is an ancient manual. It is another proof of the existence of homosexuality during that period as the manual impose a duty on the king of punishing those who are indulged in homosexual acts. 

Who criminalized homosexuality?

This is a question which every person of the LGBT community is curious to know. Indian Penal Code was framed by the British Colonial Rulers in the 19th century. The whole code was based on the then existing British laws and was full of complications and sec-377 was one of them. Section-377 IPC was framed according to the Buggery Act which was a law of the 16th century. 

The Buggery Act, 1533

This act defined homosexual acts, sodomy, sexual activities involving animals as unnatural offences. The Parliament of England passed this Act in 1533 under the kingship of King Henry VII. This act defined buggery as an act which is against the will of God. Under this act, unnatural offences were punishable by death. The very first law commission of India which was under Thomas Macaulay brought this law in India and drafted it as sec-377 of Indian Penal Code of 1860.   

Challenges to Section-377

NGO- AIDS Bhedbhav Virodhi Abhiyan (ABVA)

The very first challenge faced by Sec 377 was in 1994. This NGO filed a petition in the Delhi High Court for decriminalizing this section. The facts were that after observing homosexuality in the Tihar Jail the workers of the NGO wanted to distribute condoms among the male inmates. The then superintendent of Tihar Jail, Kiran Bedi disapproved this as according to her, this would have encouraged homosexuality. This petition was then dismissed in 2001.

Naz Foundation vs. Government of NCT and Ors. (2009)

Facts of the case- it was a special leave petition filed by Naz Foundation, a Non-Governmental Organisation in 2006 as a PIL filed by it in 2001 which was dismissed in 2004 followed by a review petition which was again dismissed for challenging the constitutional validity of sec-377 of IPC which criminalizes homosexuality. This NGO was working for the prevention of HIV/AIDS and therefore, had interaction with such sections which also included homosexuals. According to the NGO, this section of society was extremely vulnerable to HIV as this particular section faced discrimination, abused from public and was also neglected by public authorities. According to the petitioner sec-377 of IPC is also violating some of the fundamental rights of homosexuals such as Article 14, 15 and 21. 

Issues raised

• Whether section-377 of IPC is violative of Article 14 and 15 of the Indian Constitution?
• Whether section-377 of IPC is violative of Article 21 of Indian Constitution?
• Whether section-377 of IPC is unconstitutional?

Arguments from the Petitioner side 

• According to the petitioner, Sec-377 of IPC which criminalizes homosexuality is outdated and needs to be modified according to the needs and wants of the modern society. 
• Sec-377 is also violative of Right to life i.e. Article-21 of Indian Constitution as nothing can be more private than private, consensual sexual relations which are also covered under the ambit of Right to Privacy which is protected under Article-21. 
• Sec-377 also discriminates on the basis of sex i.e. based on their sexual orientation as mentioned in Article-15 which violated another fundamental right of homosexuals.
• Moreover, sec-377 of IPC which penalized “unnatural sexual acts” has no rational connection to the classification created between procreative and non-procreative sexual acts.
• On the above-mentioned arguments, it is submitted by the petitioner that sec-377 of IPC which criminalizes private, consensual sexual activity between two adults needed to be scrapped. 

Arguments from the Respondent side

• According to the affidavit submitted by the Ministry of Home Affairs, Government of India, sec-377 was included in the statute book in order to prevent cases of child sexual abuse. They have also submitted that such acts cannot be considered as legitimate just because two adults have consented to it. Moreover, interference by public authorities is permissible in private and family life for public safety and protection of health and morals.
• National Aids Control Organisation (NACO) has agreed to the contention made by the petitioner i.e. homosexual community is extremely vulnerable to HIV/AIDS. According to their report, there are 25 lakh homosexuals who are under High-Risk Behaviour group i.e. people who are at the high risk of getting infected by HIV. NACO has mentioned in the affidavit submitted by them the various methods to be adopted in order to control the high numbers of this community getting infected from HIV. 
• Respondent no. 8 is a coalition of 12 organisations that represents child rights, women’s rights, human rights, health concerns as well as the rights of the same sex desiring people including all those who identify as Lesbian, Gay, Bisexual, Transgenders, Hijra and Kothi persons. Respondent no. 8 supports the contentions of the petitioner and urges the need to end discrimination under sec-377.  

Judgment Given

• If one person prefers sex with the same gender it is their choice and if such sexual involvement is consensual and does not harm the other then invasion into these matters will be a breach of privacy and therefore a violation of  Article-21. The court referred to Article 12 of Universal Declaration of Human Rights, Article 17 of the International Covenant of Civil and Political Rights and the European Convention on Human Rights. 
• Right to live with dignity is another right recognised under Article 21 of the Indian Constitution and section-377 denies such right by criminalising the identity of a person based on his or her sexuality. 
• Homosexuals and transgenders constitute a considerable section of the society which is denounced by section-377. The LGBT community is forced to live according to society and is exposed to harassment, exploitation, cruelty and humiliation. 
• Several countries including the US, England, Australia and Canada have decriminalized consensual sodomy and unnatural acts.  
• The Law Commission in its 142nd report has also expressed its desire for the deletion of  section-377. According to their report, section-377 was meant to criminalize non-consensual sex and child abuse but now after the insertion and amendment of sections-375 to section-376E in IPC, there is no need for section-377. 
• Section-377 also targets a particular community i.e. LGBT and discriminates them on the basis of their gender and sexual identity which is unreasonable and unfair and is therefore violative of  Article 14 of the Indian Constitution.
• The court also decided that sexual orientation is a ground parallel to sex and Article 15(2) of the Indian Constitution prohibits discrimination on the basis of sexual orientation. 
• The court declared section-377 as unconstitutional as it violates Articles 21, 14 and 15 of our Constitution. Moreover, section-377 will continue in cases of non-consensual penile non-vaginal sex and penile non-vaginal sex which involves minors i.e. a person below 18 years of age.  

Suresh Kumar Koushal and Ors. Vs. NAZ Foundation and ors.

Appeal- This case is an appeal against the previous judgment on section-377 of IPC i.e. against the case NAZ Foundation vs. Government of NCT and Ors.

Issues raised

• Whether section-377 of IPC violative of Article 14 and 15 of the Indian Constitution?
• Whether section-377 of IPC violative of Article 21 of Indian Constitution?
• Whether section-377 of IPC is unconstitutional?

Arguments from the Appellant side 

• The statistics which the NACO represented in the previous case are not sufficient for proving that section-377 of IPC is the reason behind the vulnerability of LGBT community to HIV/AIDS and that decriminalization of the section will lead to the reduction of such cases. 
• Section-377 does not discriminate on the basis of sexual orientation and is gender neutral as it refers to all the genders involved acts mentioned in the respective section. They also argued that this section refers to the carnal intercourse and such acts which has the tendency to cause harm to both individuals participating in such an act. Therefore, section-377 is not violative of Article 21 of the Indian Constitution i.e. the right to privacy and dignity guaranteed under it but is just protecting the people of the country from being exposed to incurable disease such as HIV/AIDs.
• Section-377 is not a hindrance in the personality development of homosexuals or does not affect their self-esteem in any way. The High Court in the previous judgment has made a wrong observation as its observation is based on the reports prepared by academicians, which cannot be relied upon. Hence, section-377 does not breach Articles 14 and 15 of the Indian Constitution. 
• Another argument made was that section-377 was enacted in IPC in order to protect social values and morals. The appellants also referred to the “order of nature” and has discussed in detail that each and every organ of a human body is assigned some functions which if are abused goes against nature and will lead to the obstruction of the Indian social culture and structure.   
• The founding fathers of the Indian Constitution never intended to include sexual orientation within the term ‘sex’. Moreover, considering the principles of health and morality of the people of the country restrictions can be imposed on the right to sexual orientation.  
• Indian courts do not have the right of legislating any statute. The Delhi High Court instead of striking down section-377 would have left the task of deciding the constitutionality of section-377 on Parliament.

Arguments from the Respondent side

• Article 21 guarantees human rights and sexual rights and sexuality are covered under its domain which is being violated by section-377. Scientifical observations have proved that consensual sex between the same gender is not against the “order of nature”. Moreover, this section deprives the LGBT community of living with full moral citizenship. 
• Section-377 also diminishes the human dignity of individuals by making them criminals based on their sexual personality. Moreover, by criminalizing sexual acts between homosexuals it also violates their right to health protected under Article 21 as such section of the society is impaired of health services and are therefore more vulnerable to HIV/AIDS.
• The expression ‘carnal intercourse against the order of nature’ which has been used by the appellants over and again has not been defined anywhere in the statute. Moreover, this section is vague and arbitrary in nature as the people it is targetting does not even know the true intention of this section because no clear prohibition has been specified by it.   
• Section-377 marks a difference between carnal intercourse against the order of nature and carnal intercourse which is not against the order of nature, but there is no such legislation guiding on this point which makes the difference arbitrary. Therefore in the absence of any legislative guidance, it is supposed to be decided by the Court.   
• Another important argument made was that the Court should take into consideration the changing values and changing society. Social values and morals laid down 50-60 years ago cannot be the same now. Change is the law of nature and section-377 is a pre-constitutional statute which needs to be looked upon by the Judicial officers of law.

Judgment given

• The High Court and the Supreme Court has the authority to declare any law enacted before or after the Constitution of India as void if it violates any of the rights mentioned in Part III of the constitution. 
• Declaring any law as unconstitutional is one of the last option available to the High Court and the Supreme Court and if any law is declared unconstitutional then it is the duty of the Courts to give an appropriate remedy which is in favour of the constitution. 
• The Apex court also mentioned that both the High Court and the Supreme Court does not have to strike down legislation or law just because it is disused or the beliefs of the society has changed. The courts can strike down a law only if it is proved beyond reasonable doubts that it is infringing constitutional provisions. 
• The court mentioned that section-377 is gender neutral and does not targets any particular group of a section of society but criminalizes certain acts which if committed by a person irrespective of their age or consent will constitute an offence.    
• The writ petition filed in the Delhi High Court by the respondents, in this case, lacked various aspects such as cases which involved harassment and assault towards sexual minorities by the public and public authorities. Moreover, it did not mention any incident of discriminatory behaviour by State agencies towards homosexuals which lead to the denial of their human rights.
• The Bench of the Delhi High Court overlooked the small fraction of the country constituting of lesbians, gays, bisexuals and transgenders. Considering the fact that people prosecuted for committing an offence in the past 150 years does not even amount to a total of 200 it cannot be declared that section-377 of IPC is violative of Articles 14, 15 and 21 of the Indian Constitution. 
• If any law is misused by police authorities or any other state authority, it doesn’t mean that it is ultra vires or unconstitutional. Every court must consider only relevant factors while deciding the constitutionality of any legislation. 
• The  Supreme Court after hearing the arguments from both sides concluded that section-377 of IPC is not unconstitutional and does not violate any right contained in the Indian Constitution. 

 Navtej Singh Johar and ors. Vs. Union of Indian and ors.

Appeal- This case is an appeal against the judgment given by the Supreme Court in the previous case of 2013.

Coram- CJI-Dipak Misra, Justice A.M. Khanwilkar, Justice Rohinton Fali Nariman, Justice D.Y. Chandrachud and Justice Indu Malhotra.

Issue raised– The main issue here raised was about the constitutionality of section-377 of IPC.

Submissions from Petitioner side

• Homosexuality, bisexuality or any other sexual interest is something natural and is not a physical or mental illness. It is a reflection of personal choice and criminalizing it will lead to the destructing of Article 21 of the Indian Constitution by affecting an individuals dignity and his or her gender identity. 
• It is also argued that a person will not become an alien if his community is not accepted by the society at large and therefore rights of the LGBT community who constitutes 7-8% of Indian population needs to be recognised. 
• Section-377 is based on the morals and social values of Victorian-era where sexual activities were just considered as a reproductive process and nothing more than that. This section is the only reason that the LGBT community has suffered discrimination and abuse all their lives and will continue to suffer if homosexuality is criminalized again.
• If section-377 is retained in without making any amendments then it would lead to the violation of various fundamental rights of the LGBT group i.e. right to freedom of expression, right to privacy, right to equality, liberty and dignity.  
• Petitioners have also mentioned that people who choose inter-religious and inter-caste marriages are the same as people who choose a partner of same-sex and there is no difference between them. Society may or may not disapprove of inter-caste and inter-religious marriages but it is the duty of the court to enforce constitutional rights of every citizen. Position of the LGBT group is the same, even though the majority is disapproving them but it is to the court to protect their constitutional rights from being violated. 
• There is no reasonable classification between natural and unnatural sex and even the expression “carnal intercourse against the order of nature” is not defined anywhere. Therefore section-377 is arbitrary and vague and is violative of Article 14.
• The section is also violative of Article 15 as it discriminates the LGBT community on the basis of sex of their partners which is prohibited under Article 15 of the Indian Constitution. 

Submissions from Respondent side 

• It has been submitted by them if section-377 is declared as unconstitutional then the family system will be destroyed and many corrupt young Indians will see this as a trade and will start using homosexual activities for money. Moreover, individuals indulging in such activities are more likely to contract HIV/AIDS which will increase the percentage of AIDS victim in the country.
• It is also contended that the political, economic and cultural heritage of countries were consensual homosexual acts have been decriminalized are very much different from a multicultural and diverse country like India.
• Fundamental rights are not absolute and decriminalizing section-377 will leave all the religions practised in the country as objectionable and will lead to the violation of Article 25 of Indian Constitution which also needs to be given due consideration. 
• They also submitted that clarifications can be added to section-377 by defining every word which is controversially mentioned in the section. The section will then target people with malafide intentions and non-consensual acts.
• The main reason behind criminalizing carnal intercourse against nature is to protect the citizens from the injurious consequences as protecting the citizens from something hazardous is one of the aims of criminal law. 
• Article 15 prohibits discrimination on the basis of sex but not on sexual orientation, therefore section-377 of IPC is not violating Article 15. Moreover, it is also not violative of Article 14 as the section only mentions a particular offence along with its punishment.

Judgment given

• It doesn’t matter how minuscule is the LGBT section, they also have the right to privacy which includes physical intimacy. Their choice of partner might be different but it does not mean they will be prosecuted for that. Section-377 does curtail their human dignity and their personal choice, therefore violating their right to privacy which is covered under Article 21.
• The main objective behind retaining section-377 is to protect women and children from being abused and harasses by carnal intercourse but consensual carnal intercourse which is performed by the LGBT community is neither injurious to children nor women. Moreover, non-consensual acts have already been referred to as an offence under section-375 of IPC which implies that section-377 is redundant and discriminative towards one section of the society and is therefore violative of Article 14 of the Indian Constitution rendering it unconstitutional.
• Our Constitution being liberal, it is not possible that right of choice will be absolute. Therefore some restrictions have been imposed on the principal of choice. However right of choosing a partner for intimate relations is completely a matter of personal choice which cannot be restricted. Whereas, section-377 of the Indian Penal Code restricts the right of LGBT community of choosing a partner for sexual matters and is therefore irrational and arbitrary. 
• Public order, decency and morality are the grounds which can impose reasonable restriction on the fundamental right of expression. Any act done in affection by the LGBT coommunity in public  does not disturb the public order or moral values untill it is decent enough and is not obscene. However, section-377 is again unconstitutional in the sense that it does not connect with the criteria of proportionality and is violating the fundamental right of expression of LGBT group.
• The Supreme Court declared that section-377 is unconstitutional as it violates Articles 14, 15, 19 and 21 of the Indian Constitution and therefore overruled the judgment given in Suresh Koushal annd ors. vs. Naz Foundation and ors. Moreover, it also declared that section-377 will be governing only non-consensual sexual acts committed against any adult and minor. 

Conclusion

So now homosexuality has been decriminalized but the reaction of society and different organisations is still a challenge for the LGBT community. Though there are organisations such as All India Muslim Personal Law Board and the Jamaat-e-Islami Hind who expressed their disappointment towards the verdict given by the Apex Court on section-377. There also exist organisations and parties who are satisfied with the given verdict, namely, Amnesty International, RSS, CPI(M) and UN. According to the surveys conducted by various LGBT activists in different parts of the country, life is much better and simple for the LGBT group. Every society needs time to accept any change. The time is not so far when the society will accept the LGBT community and their rights. 

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This article is edited by Mansi Bathija and written by Lakshay Kumar, a second-year B.A.LLB student of Delhi Metropolitan Education, Indraprastha University. In this article he talks about the mechanism of Advance Ruling, its meaning and how is it done. He also throws some light on the process of assessment.

What is Advance Ruling?

An advance ruling is a written interpretation of tax laws. Generally, the advance ruling is given by authorities to individuals and organizations who are seeking clarification on certain tax matters.

One example of an advance tax would be under income tax, where advance tax is available in International taxation. Tax authorities advise the Non Residents of India on matters of income tax liability, how they can plan their income tax payments and avoid last minute rush and also avoid long legal repercussions. Advance ruling under GST is the advice given by tax authorities on matters relating to the supply of goods and services.

Why is Advance Ruling necessary to GST  

GST, as we all know, was big tax reform, everyone was not fully aware of it. Even if some people knew what GST they didn’t know the procedure, therefore, the concept of the advance ruling was incorporated under GST. The main objectives behind including advance ruling under GST is :

1. To provide the tax liability of the person in advance so that the applicant can take necessary actions in the future.
2. By providing a clear and clean taxation system the Foreign Direct Investment will also increase as the NRI’s would be investing more, as the main concern for the NRI’s is that they don’t want to get into the pitty tax disputes which gets resolved through the advance ruling.
3. By providing tax advises before the process of tax collection begins, it becomes easy for the applicant to clear all his dues in a more transparent way.
4. It also reduces the cost of litigation and avoids costly legal disputes.

Under what situations an applicant ask for Advance Ruling 

The taxpayer can demand advice under an advance ruling when he is not aware of certain tax provisions. The taxpayer can ask for advice under the following circumstances:

1. When he wants clarification on the classification of any goods and services under the act.
2. Determination of time, value and supply of goods and services. 
3. Whether input tax paid would be allowed.
4. If the applicant has to be registered under GST or not.
5. Any particular thing done by the applicant falls within the ambit of supply or not.

Process of Advance Ruling Under GST

An application for advance ruling is sent to Advance Ruling Authority. A person not happy with the advance ruling can file an appeal in the appellate authority i.e an Advance Ruling Appellate Authority.

The form of Advance Ruling has been made available in form GST ARA-01 with rupees 5000.

It is up to the authority to decide whether to accept the application or reject the application. The decision of the authority is pronounced within 90 days and if the members of the authority differ on any particular point then that point of dispute shall be referred to the appellate authority.

The application of advance ruling will not be accepted if their case has already been rejected earlier and if the case is already pending in the authority then advance ruling cannot be claimed.

Time Limit on the Applicability of Advance Ruling

Their no such law which prescribes the fixed time period for which the advance ruling shall remain in force. Instead of that, the applicability shall remain in time unless the original advance ruing is replaced by a new law. So the time period for applicability of the advance ruling remains valid unless there has been a change in the law with respect to the advance ruling. 

Voidability of the advance ruling

The advance ruling if obtained by fraud, misrepresentation or through any illegal means by the applicant and is discovered by the authority of advance ruling or by the appellate authority of advance ruling then the advance ruling would be void ab initio.

Authorities of Advance Ruling and their Power

Both the AAR and the AAAR have the authority to conduct its proceedings under the Code of Civil Procedure, 1908, they have the power to examine, record attendance and check all the books and accounts of the concerned person. Both the authorities are given the status of civil courts for the purpose of Section 195 of the Code of Criminal Procedure. The proceedings conducted by the courts will be deemed to be a judicial proceeding for the purpose of Section 196 of the Indian Penal Code. Apart from all the above-mentioned powers both the authorities have the power to regulate their own procedure.

Assessment under Goods and Services Tax 

Assessment means the determination of tax liability of a person under Goods and Services Tax. Assessment includes Self Assesment which is done by the taxpayer himself, but the Government has the right to reassess the tax liability of the taxpayer if it feels that there is a short payment of GST. 

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Types of Assessment Under GST

The persons registered under the Act are themselves required to assess the tax payable by them for a tax period. After such an assessment, they shall also file the return required under section 27 of the Act. the types of assessments under GST are:

1. Self Assessment
2. Provisional Assesment
3. Scrutiny Assessment
4. Best Judgement Assesment
5. Assessment of Non-fillers of Return.
6. Assessment of Unregistered persons
7. Summary Assessment

Self Assessment

Every taxpayer has to do a self-assessment of its Tax liability, and therefore every GST return filed by the taxpayer is based on the self-assessment done by him. Section 59 of the CGST Act mentions the provisions regarding Self Assesment.

Provisional Assessment

Provisional Assesment is done when the taxpayer is unable to determine the tax liability on the goods and services and the tax rate is which is applied thereto. Section 60 of the GST Act contains the provisions regarding provisional assessment

The procedure of Provisional Assessment

1. Under the first step, the concerned taxpayer has to give in writing a request to conduct a provisional assessment to the GST officer.
2. In the second step after assessing the application, the GST officer will pass an order in a maximum of 90 days from the date of the receipt of the request on a provisional basis or at the GST rate whichever he mentioned in the application.
3. In the next step, the taxpayer who is paying the provisional tax has to sign a bond along with security promising to pay the difference between the provisionally assessed tax and the final assessed tax.
4. Finally, in the last step, the A officer will pass the final assessment of tax within six months from the date of the order of the provisional assessment.

Interest paid on Provisional Assessment

In some cases the actual tax which is payable is more than the provisional assessed tax, in that case, the taxpayer has to pay interest on the increased tax, the interest would be charged from the actual due date of tax till the actual payment of the tax. 

Refund under provisional Assessment

It is also possible that sometimes the actual tax payable is less than the provisional tax already paid, in that case, a refund would be given to the taxpayer as per the provisions mentioned in Section 56.

Scrutiny Assessment

Under this assessment, the GST officers have the powers to scrutinize the returns filed by the taxpayer and if some discrepancies found in the return filed then the officer must pass the notice of discrepancy found to the registered taxpayer and the registered taxpayer has to furnish an explanation on the same. After the explanation is given the taxpayer has two options available

1. If the officer is satisfied with the explanation then the officer will communicate this with the taxpayer and no further actions would be initiated 
2. But if the officer is not satisfied with the explanation and he fails to make corrective measures after accepting the discrepancies then he can take action against the taxpayer under the GST Act. the officer might conduct the audit of accounts of the registered person or he initiates an inspection or search the place of work of the business, or he may demand the recovery of the debt or any liability on the taxpayer.

Best Judgement Assessment

Under Section 62 if the registered person fails to furnish the required return, then in that case the officer will conduct an assessment in order to find the tax liability by taking into consideration all the relevant material that he has an issue and assessment order within a period of five years from the date of furnishing the annual returns to the date till the tax has not been paid.
On receiving the receipt of the said notice if the taxpayer has furnished all the returns then the assessment would be called off, but he would still be liable to pay the interest which is applicable.

Assessment of Unregistered Person

Under Section 63 if the person whose registration has been canceled but still has to pay off the tax has not paid the tax till yet then the officer can initiate an assessment to the best of his judgment for the relevant tax periods. 

Summary Assessment

If the GST officer receives a notice regarding the tax liability of the person, he shall initiate an assessment which may seem necessary and which may adversely affect the revenue. Under Section 64 in order to conduct a summary assessment, the proper officer must obtain permission from the joint commissioner or commissioner.

Case Law pertaining to ITC under Advance Ruling 

In re Kansai Nerolac Paints Limited the appellate authority held that the credit that has been collected through the Krishi Kalyan Cess which has been appeared in the service tax return of the input service provider by the petitioner will not be allowed to be considered as a valid input tax credit.

Facts of the Case

The Kansi Nerolac Paints Limited has engaged in the business of manufacture of pains that take up work on a contractual basis. The ARA Maharastra gave a judgment that the balance furnished on 30 June 2018 under Krishi Kalyan Cess is not valid for getting Input Tax Credit under Goods and Services Tax. the party was aggrieved by the decision and went to the Appellate Advance Ruling Authority by claiming the following ground:

1. The first claim of the party was that entry 92C of the union list 1 that gave the power to the central government to leavy tax has been abolished after the introduction of Goods and Services Tax. As a result of that, the Krishi Kalyan Cess attached under the Goods and Service tax is valid to be considered as the Input tax credit
2. The Advance ruling Authority supported its argument with the orders of Delhi High Court on the dispute regarding the cross-utilization of the Ec which was not at all related to the current issue
3. The Advanced Ruling Authority also relied on the Advice of the Central Board of indirect taxes and customs who’s decision have no binding effect.

These were the three arguments on which the petitioner relied and wanted that the ruling of the Advance ruling authority is overturned. The appellate advance ruling authority took all these arguments into consideration and set the law in motion to examine the validity of the arguments, after examing all the facts the Appellate Advanced Ruling Authority upheld the decision of the Advanced Ruling Authority on the following grounds:

1. It upheld its decision based on the Central Goods and Service Act according to which the Central Value Added Tax Credit does not come under the list of duties and cesses which are accepted under the Central Value Added Tax Rules, 2004 which do not include Krishi Kalyan Tax.
2. The Court bought important information to the knowledge of the petitioners that the subsequent amendments allow considering the Krishi Kalyan Cess only to the output service providers 
3. On the matter relating to the admissibility of the CBEC FAQ, the court upheld that their suggestions could be relied upon

Conclusion

In India there are very few people who pay taxes, the main reason behind it is that many don’t know the process as to how to file their return. Therefore the concept of the advance ruling is a great introduction under GST in order to enable the people to know how to file annual returns and what is the procedure. It is equally important to understand that without keeping a check on the returns filed by the registered taxpayers it is not possible to make GST a grand success, therefore the concept of Assesment helps us to know how the accurate amount of GST is collected and how is it determined.

The post Assessment And Advance Ruling Under GST: All You Need To Know appeared first on iPleaders.

This article is edited by Mansi Bathija and written by Lakshay Kumar, a second-year B.A.LLB student of Delhi Metropolitan Education, Indraprastha University. In this article, he talks about the supply of goods and services, which is to supply its nature and scope.

Definition of supply

Supply in general terms refers to the total goods and services that a producer is willing to supply at a given price and at a particular place. According to section 7(1) of central goods and services act supply includes 

1. All forms of supply of goods, services or both such as sale, manufacture, lease, transfer, disposal made for a consideration by a person in furtherance of his business.
2. Import of services made 
3. The activities mentioned in schedule 1 of central goods and services act 2017
4. Al the activities that would be treated as a supply of goods under schedule 2 of the act

Section 7(2) mentions that all the activities mentioned in schedule 3 of the act, as well as all the transactions of the central government or state government, will also be treated as a supply of goods and services. 

Scope of Supply

In order to determine the scope of supply, we have to keep in mind six factors, these six factors are-

1. Supply of Goods and Services

The CGST act of 2017 defines what goods or services will come under the definition of supply. Money, securities have been excluded from the ambit of  goods and services, however, if there is any activity for which the use of money is involved or if at any stage of transaction conversion of money is done into other denomination then that would come under the ambit of goods and services provided a separate consideration is provided for it. Further schedule two of the act provides which all activities could be included in the supply of goods or in the supply of services

2. Supply for Consideration

consideration means something for something, it can be anything money or kind, without consideration no activity would be treated as supply, however, there are situations under which no consideration is required but still, the activity would be treated as supply these situations are 

• Permanent disposal of business assets wherein tax credits have been availed
• Supply of goods and services between two related persons or between two distinct people when the transaction has been made in furtherance of business 
• Supply of goods by an agent on behalf of his principal when he receives the goods on behalf of his principle.
• Import of service by a taxable person with some related person or imports done by him with his establishments outside India in furtherance of his business

3. Supply in Furtherance of Business

GST is a tax and therefore it is applicable only in transactions and activities that are done in furtherance of business if any activity or transaction is done in a personal capacity then such activity or transaction would not be taxed under GST. One exception to this rule is when imports are done for a consideration

4. Taxable Supply

For supply to attach GST it is essential that the activity or transaction must be taxable if the transaction or activity is not taxable then it would not fall within the scope of supply.

5. Supply in the Taxable Territory

One more essential requirement which ascertains whether the activity is treated as supply or not is to determine whether the activity or transaction takes place within the taxable territory, in order to get GST applied it is essential that the transaction should take place within India.

6. Inter or Intrastate Supplies

The location of the supplier and the goods supplied determines whether the supply of goods and services would be treated as interstate or intrastate supplies.

If the goods supplied and the suppliers are in the same state then it would be considered as intrastate supply but if the goods supplied and the supplier is of different states then it would be considered an interstate

Time of Supply of Goods and Services

Determining the time of supply of goods  

Section 12(2) of the CGST act 2017 mentions the provision regarding the time of supply of goods. According to this section supply of goods needs to be made earlier of the following two dates namely

1. The date of issue of invoice by the supplier, or the last date on which he is required to issue the invoice.
2. Or the date on which the supplier receives the payment with respect to supply

Time of Supply of Goods under Reverse Charge

Reverse charge means when the tax is to be paid by the receiver of the goods and service rather than the supplier, in that case, the time of supply of goods shall be made to the earliest on the following dates 

1. The date of receipt of the goods 
2. The date of payment
3. The date immediately after 30 days from the date of issue of invoice by the supplier.

If it is not possible to determine the time of supply under the above-mentioned condition then the time of supply of goods would be the entry date in the recipient’s book.

Time of Supply of Vouchers

In the case of vouchers, the time of supply would be determined  on

1. On the date of issue of voucher 
2. On the date of redeeming the voucher

When the time of supply of goods cannot be determined

When the time of supply cannot be determined then, in that case, the earliest dates will be the date of supply namely

1. The date when the periodical returns are filed
2. The date on which the CGST or SGST is paid

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Determining the time of supply of services

Section 13(2) of the CGST act 2017 mentions the provision regarding the time of supply of services. according to section 13(2), the time of supply of service shall be earliest dates from the following namely

1. The date of the issue of invoice by the supplier or the date of the issue of the receipt of payment, whichever is earlier.
2. The date of provision of service, if the invoice is not issued within the period prescribed under subclause 2 of section 31 of the act, or the date of receipt of payment whichever is earlier
3. The dates on which the recipient shows the receipt of services in his account books.

Time of Supply of Services under Reverse Charge

As discussed earlier reverse charge means the tax which is to be paid by the receiver of the services rather than the supplier. In that case, the time of supply of services shall be the earlier of the following dates

1. The date of payment entered in the books of the recipients or the date on which the money was debited in the bank account.
2. The date immediately following 60 days of the issue of invoice by the supplier.

Time of Supply for the Vouchers

In case of supply for the vouchers, the time of supply for the vouchers shall be  

1. The date of issue of the voucher if it is identifiable
2. The date of redemption of voucher

When the time of Supply of Services Cannot be Determined

If the time of supply of services cannot be determined as per the above-mentioned provision then, in that case, the time of supply shall be

1. The date on which the periodical return has been filed or
2. The date on which the tax has been filed

Place of Supply of Goods and Services

Rules for the Place of Supply of Goods

When the supply is for the movement of goods from the place of supply is determined by the final location the goods are to be delivered.

Example- a manufacturer of certain goods in Rajasthan receives an order from Mumbai to supply a certain quantity of goods to him, in that case, the manufacturer directs his branch officer in goa to transport those goods to Mumbai, in this case, the place of supply will be goa and it being an inter-state movement  Integrated GST will apply 

When there is movement of goods at the instance of the direction of the third party then the place of supply shall be the third person’s place of business.

Example – if a dealer in Karnataka receives an order from Kerala, the Kerala dealer directs the goods to be delivered to Delhi then the place of supply would be the business place of Kerala dealer irrespective of the fact that the order is taken from Karnataka. The transaction will attract integrated GST

When there is no movement of goods from the place of supply shall be the location of the supply of goods during final delivery

Example – if a company is registered in Delhi and opens its branch in Mumbai and receives an order from company b in Mumbai, then, in that case, however, there is no movement of goods but there is certainly a supply of goods and therefore it is an intra-state supply it will attract central GST and state GST

Rules for the Place of Supply of Services

1 ) In case services are provided to the registered recipient then the place of supply would be the location of such registered recipient. if the service is provided to an unregistered recipient then the place of supply of services would be either the location provided by the recipient and if not then the place of supply service would be the location of the service provider.

 2) If the service provided involves the use of any immovable property then the place of  service would be the place where the immovable property is located 

Example- say for example Mr x lives in Punjab but has his property in Delhi and wants the services of Mr b for some construction who lives in Haryana then the place of service would be Delhi as the recipient, supplier and the recipient’s property is located in India, however if the property would have been located in some foreign country then the place of supply of service would have been the actual place where Mr x lives that is Punjab

3) if the service is related to professional work like fitness, grooming, health services including plastic surgery, cosmetics, etc then the place of service provided will be the place where those services were performed

Example- for example, A who lives in Delhi visits and stays in a hotel and avails the restaurant services, he also pays for the same. In this case, the place of supply of service is the place where all these services were availed that is Kerala

4) if some banking services are provided then the place of supply of service would depend on  the following situations

1. If the location is available with the bank then the place of supply of service would be the location of the person who is seeking service or
2. If the location of the recipient is not available with the bank then the place of supply of service would be the location of the service provider

Example- if a person who lives in Delhi has a bank account in HDFC bank in Delhi gets a check issued at HDFC bank Pune, then, in that case, the place of supply of service would be Delhi as the address registered with HDFC bank in Delhi, however, if the same person issues the check with HDFC bank Mumbai without having any bank account in Mumbai the place of supply of service would be Mumbai only, the place where he availed the service

5) if someone is availing insurance service then the place of supply in case of a registered user would be the location of the registered recipient, in case he is an unregistered person then the place of supply of service would be the location of the service recipient

Example- a person living in Delhi travels from Mumbai to Karnataka and gets his travel insurance done in Karnataka, the place of supply of service would be Delhi as the insurance company has registered the address of the recipient in Delhi

Value of Supply of Goods and Services

Value of supply of goods and services literally means the payment that the recipient of the goods or services has to pay to the person who has provided him with the goods and services. Section 15 of the GST act provides the provision regarding the value of supply of goods and services.according to sec 15(1) value of supply means transaction value which is the price paid or actually paid by the recipient to the supplier or where both the supplier and the recipient are unknown in that case price would be the sole consideration for the supply.

Things included in the Value of Supply 

According to section 15(2), the following things would comprise the value of the goods and services

1. Any tax, CESS, fees or any charge that was applicable before the act came into force, the state goods and services tax, union territory goods and service tax, goods and services tax ( compensation to the states) is charged by the supplier separately.
2. Any amount that the supplier was liable to pay but in place of him the recipient has paid and that amount has not specifically be included in the price actually paid 
3. Any incidental price, or commission or packing is done by the supplier towards his performance of his duties.
4. Any late fees, or penalty imposed or delayed payment of any consideration or supply
5. Subsidies directly included in the price excluding the subsidies provided by the central government and state government.

Discounts which are not included in the value of supply 

The value of supply shall not include any discounts which are given

1. Which is given before or at the time of supply 
2. After the supply has been affected if

1. Such a discount is established in the agreement made or before the time of supply.
2. The input tax credit has been reversed by the recipient of the supply

Conclusion

One of the most important aspects of Goods and Services tax is the supply of Goods and Services, this article analyses the various provisions concerning the supply of goods and services, apart from that the article also examines the time period under which the goods are to be provided or services to be rendered to the customer. Not only this the article also discourses about the place where the goods and services which are to be provided.

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This article is written by Mohit Kishore, Senior Associate at’ ‘Link Legal India Law Service’ and Udita Singh, Associate at ‘Link Legal India Law Services’. Here they have discussed on calculation of voting percentage under Insolvency and Bankruptcy Code, 2016.

‘Absent Sir/Ma’am’ used to be a simple phrase that merely denoted that a person is absent from any gathering where he was supposed to be. However, in the context of the Insolvency and Bankruptcy Code, 2016 (“Code”) this simple phrase has serious implications on the ability of the members of the committee of creditors (“Members”) (“CoC”) to reach a decision which could pass muster of the 66% voting requirement laid down by the Code, including the context of serious issues like change of resolution professional or approval of a resolution plan. 

Background 

It is observed that the Code and the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process For Corporate Persons) Regulations, 2016 (“Regulations”) have omitted to provide a basis for calculation of votes casted by the Members, meaning, that there is no specific provision basis which the votes which are casted and the number of Members casting the votes can be calculated in the following foreseeable scenarios: 

Scenario 1

A Member is present, either in person or by video conferencing or other audio and visual means at the CoC meeting (“Present”) and the Member casts a vote in favour of a resolution;

Scenario 2 

A Member is absent from the CoC meeting, can the Member still vote?; and

Scenario 3

A member is Present at the CoC meeting however, the Member abstains from voting on a resolution. (“Possible Scenarios”).

In view of the above, in case of Scenario 1, which is fairly simple it appears that the Member’s vote would be calculated in the total number of votes casted in the denominator and the vote would be counted as yes in the numerator for the purpose of calculating the votes casted in favour of the resolution. However, ambiguity arises in Scenario 2 and Scenario 3 which are the defining theme of this article and are analysed below. 

Analysis regarding Scenario 2

In this regard, reference is made to the judgment dated February 4, 2019 passed by the National Company Law Appellate Tribunal (“Hon’ble NCLAT”) in the matter between Tata Steel Limited v. Liberty House Group Pte. Ltd.& Ors. (Company Appeal (AT) (Insolvency) No. 198 of 2018) (“Liberty House Order”), wherein it was observed that, “If some members of the ‘Committee of Creditors’ having 2.88% voting shares remained absent, it cannot be held that they have considered the feasibility and viability and other requirements as specified by the Board, therefore, their shares should not have been counted for the purpose of counting the voting shares of the Committee of Creditors. In fact, 97.12% voting shares of members being Present in the meeting of the ‘Committee of Creditors’ and all of them have casted vote in favour of ‘JSW Steel’, we hold that the ‘Resolution Plan’ submitted by ‘JSW Steel’ has been approved with 100% voting shares.” 

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Further, vide order dated June 10, 2019 passed by the Hon’ble NCLAT in the matter between IDBI Bank Limited v. Mr. Anuj Jain, IRP, Jaypee Infratech Ltd. and Anr. (Company Appeal (AT)(Ins) No. 536 of 2019) (“Jaypee Order”) it was held that, “We make it clear that if any of the ‘Financial Creditor’ remains absent from voting, their voting percentage should not be counted for the purpose of counting the voting shares, as held by this Appellate Tribunal in ‘Tata Steel Ltd. vs. Liberty House Group Pte. Limited & Ors.’”

We understand from the Liberty House Order and the Jaypee Order that the votes of those Members who were absent from the CoC would not be taken into account for calculating the voting percentage and thereby, not included in the denominator. Further, in terms of Regulation 25 (3) of the Regulations, “The resolution professional shall take a vote of the members of the committee present in the meeting, on any item listed for voting after discussion on the same”, it appears that the Members Present in the CoC meeting can only vote. This understanding might be tainted as often the same resolution is discussed over the course of several CoC meetings and it seems rather unfair if a Member who has attended the various CoC meetings wherein the same resolution was deliberated upon is prohibited from voting on the resolution because the Member failed to attend that single CoC meeting pursuant to which the voting on the said resolution took place. However, it may be argued that in order to achieve the timelines prescribed in the Code and in view of the practical limitation, the intent of the Liberty House Order and the Jaypee Order, would indeed be to limit the voting by Members who are Present in the CoC. 

We understand that the Liberty House Order and the Jaypee Order revolved around the voting on the approval of resolution plans. The Liberty House Order seems to suggest that the Hon’ble NCLAT had made the above referred observation placing reliance on Section 30 (4) of the Code, which reads as, “The committee of creditors may approve a resolution plan by a vote of not less than sixty-six per cent of voting share of the financial creditors, after considering its feasibility and viability, and such other requirements as may be specified by the Board.” At the cost of making a fallacy, it may be argued that there might be a suggestive indication distinguishing voting on a resolution plan as opposed to other resolutions, as Section 30 (4) of the Code clearly mandates consideration in reference to resolution plans. 

Further, the Supreme Court of India vide judgment dated February 5, 2019 in the matter between K. Sashidhar v. Indian Overseas Bank & Ors. (Civil Appeal No. 10673 of 2019) (“SC Judgment ”), observed that, “For that, the “percent of voting share of the financial creditors” approving vis à vis dissenting is required to be reckoned. It is not on the basis of members present and voting as such. At any rate, the approving votes must fulfill the threshold percent of voting share of the financial creditors.” In view of the SC Judgment, inference may be drawn that the SC Judgment overrules the Liberty House Order and suggests that the percent of voting sharing is “not on the basis of members present and voting”. However, the treatment of votes in the numerator and denominator basis the observation “not on the basis of members present and voting” is still not clear. At this juncture, it is pertinent to observe that the Jaypee Order was passed subsequent to the SC Judgment , however the Jaypee Order relies only upon the Liberty House Order and it can therefore be assumed that the Hon’ble NCLAT is of the view that the SC Judgment  was limited to its facts. 

For the sake of argument, we may say that the above cited observation from the SC Judgment  primarily dealt with the minimum threshold requirement of votes (which is clearly provided for in the Code), therefore, the observation “not on the basis of members present and voting” appears to be in relation to meeting the minimum threshold requirement which remains constant in terms of the Code. The SC Judgment  appears to be explaining that the threshold requirement is unaffected by the members Present and voting. 

Analysis regarding Scenario 3

In this regard, reference is made to Regulation 25 (4) of the Regulations which provides that, “At the conclusion of a vote at the meeting, the resolution professional shall announce the decision taken on items along with the names of the members of the committee who voted for or against the decision, or abstained from voting” and Regulation 26(4) of the Regulations provides that, “At the conclusion of a vote held under this Regulation, the resolution professional shall announce and make a written record of the summary of the decision taken on a relevant agenda item along with the names of the members of the committee who voted for or against the decision, or abstained from voting”.

In view of the above we understand that a Member may vote for or against a resolution or a Member may abstain from voting. However, this opens several questions, firstly, regarding the inclusion or exclusion of the votes of those who abstained from the numerator and the denominator for the purpose of calculation of votes when the Members who abstained were Present at the CoC. Secondly, regarding the inclusion or exclusion of the abstained votes from the numerator and the denominator for the purpose of calculation of votes when the Members who abstained were absent from the CoC. 

As regarding the voting by authorized representatives, Section 25A (3) of the Code, stipulates that, “The authorised representative shall not act against the interest of the financial creditor he represents and shall always act in accordance with their prior instructions […] Provided further that if any financial creditor does not give prior instructions through physical or electronic means, the authorised representative shall abstain from voting on behalf of such creditor.” In view of this the Code seems to have envisaged this as the only situation in which there could be abstention from voting, namely, in cases wherein the authorized representative has not received instructions from the financial creditor, elsewhere in the Code and the Regulations, although the term abstained has been used, however, no circumstances for abstention from voting have been provided for. Therefore, thirdly, whether the “abstained from voting” is to be limited to cases in terms of Section 25A (3) of the Code. 

In the order dated September 29, 2018 passed by the National Company Law Tribunal, Principal Bench in the matter between Nikhil Mehta & sons (HUF) & Ors. v. M/s. AMR Infrastructure Ltd. (C.P (IB)-02(PB)/2017) (“AMR Order”) it was observed that, “The facts reveal that out of total number of ‘voting shares’ of the financial creditors only 52.78 percent concerning appointment of IRP as RP have actually voted and out of 52.78 percent only 32.56 percent voted in favour of appointing an interim resolution professional as resolution professional” from the AMR Order, we understand that for the calculation of the total votes, in the denominator, the total voting shares was taken and not only those votes which were actually casted, further in the numerator only votes casted in favour of resolution was taken. Although, the AMR Order provides clarity that, for the calculation of total votes, in the denominator, majority vote is to be taken i.e. total share of votes whether actually casted or not. However, the AMR Order was passed prior to the Liberty House Order, the Jaypee Order and the SC Judgment. Further even in view of the AMR Order, ambiguity regarding abstained votes remains, whether these were abstained by Members Present or absent or in the view of Section 25A (3) of the Code. It may be noted that the AMR Order has been challenged before the Hon’ble NCLAT, although on a different position of law. 

In our view, there is an urgent requirement for the authorities concerned to provide clarity and certainty regarding the ambiguity posed in the view of the latest judgements dwelling on the subject regarding the calculation of votes casted by the Members. 

Impact 

A case in point is that of the corporate insolvency resolution process of Jaypee Infratech Limited, wherein even after two rounds of CIRP, the CoC which comprises of a diverse class of creditors has not been able to achieve the requirement of 66% votes as provided in the Code on several key issues like replacing the resolution professional and approval of resolution plan. In fact the non-institutional Members namely, the Home Buyers appear to have suffered a lot on account of the prevailing ambiguity regarding the calculation of votes. Further, the resolution professional is still continuing even after a vast majority akin to an absolute majority of the Members Present and voting have voted for his replacement only because of the votes of those Members who have remained absent has been counted as ‘NO’. In this regard, the Insolvency and Bankruptcy Board of India and the Ministry of Corporate Affairs have filed affidavit before the National Company Law Tribunal, Allahabad Bench in the matter of IDBI Bank Limited v. Jaypee Infratech Limited (C.P. No.(IB) 77/ALD/2017), wherein both have advocated the principle of present and voting.

Model Inter Creditor Agreement

P.S. -The Indian Banks’ Association (“IBA”) has also chosen to adopt the principle of absent/abstain means

‘No’ while circulating its model Inter Creditor Agreement (“ICA”) in terms of the latest Reserve Bank of India directions dated June 7, 2019 regarding resolution of stressed assets. The impact of such a stand would in all likelihood cause similar ambiguity in implementation of resolution plans for borrowers involving restructuring.

Disclaimer

The view expressed in this article are the independent views of the Authors, it should not be read as the views or advice given by Link Legal India Law Services.

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This article has been edited by Mansi Bathija and written by Ayushi Yadav, a fourth-year law student from Banasthali Vidhyapith, Rajasthan. In this article, she has discussed the basics of the Indian income tax act of 1961.

Introduction to Income Tax

Tax is the mandatory financial charge demand by the government on pay, product, administrations, exercises or exchange. Taxes are the fundamental modes of income for the government, which are used for the welfare of the general population of the nation through government strategies, arrangements, and practices. 

There are references for taxes in ancient writings like Manusmurti and Kautilya Arthashastra. It was initiated in India in 1860 for the first time to defeat the financial crisis of 1857. Accordingly, it is the income tax Act 1961 which is at present operative in India

Constitutional Provisions of Taxes in India

The basis of every legislation in India is rooted in the constitution. As per article 265 of the constitution, no tax must be levied or collected except by the authority of law. There are various other provisions under the constitution that distribute the power. 

Entry 82 of List I of Seventh Schedule of the Constitution of India grant power on Parliament to impose taxes on income other than agricultural income. In this way, Income Tax is under the Union list and therefore Central Government is in charge of the collection of income tax. 

The Central Government has the authority to collect taxes on income aside from the tax on agricultural income, which is being collected by the State Government. Entry 46 of List II of the Seventh Schedule of the Constitution of India lays down that the State Government has the authority to collect taxes on agricultural income.

Schedule 7

List 1

• Entry 82: Tax on Income other than the agriculture income.
• Entry 83: Duties of customs including the export duties.
• Entry 84: Duties of excise on tobacco and other goods manufactured or produced in India except for alcoholic liquors for human consumption, opium, narcotic drugs, but including medicinal and toilet preparations containing alcoholic liquor, opium or narcotics.
• Entry 85 – Corporation tax
• Entry 92A: Taxes on sale or purchase of goods other than newspapers, where such sale or purchase takes place in the course of interstate trade or commerce.
• Entry 92B – Taxes on consignment of the goods where such consignment takes place during Inter-State trade or commerce.
• Entry 92C – Taxes on services
• Entry 97 – Any other matter which is not included in List II, List III and any tax not mentioned in List II or List III.

List 2

• Entry  46 – Taxes on agricultural income.
• Entry  51 – Excise duty on all alcoholic liquors, opium and narcotics.
• Entry  52 – Tax on entry of the goods into a local area for consumption, use or sale therein (usually termed as Octroi or Entry Tax).
• Entry  54 – Tax on sale or purchase of goods other than newspapers except for tax on interstate sale or purchase.
• Entry  55 – Tax on advertisements except advertisements in newspapers.
• Entry  56 – Tax on goods and passengers that are carried by road transport or inland waterways.
• Entry  59 – Tax on professionals, trades, callings, and employment.

Need for Income Tax in India

Income tax is a tax on the income of an individual or an entity. Income tax is the main source of income for the government to carry out its functions. The jobs of government are not just restricted to defense, law, and order, etc., but it also has to undertake activities like welfare and development under sectors of health, education, rural development, etc. the government also has to pay for its own administration. All of these activities need huge public finance which is raised by the collection of taxes.

Purpose of Taxation

1. The money spent on the development of roads, schools, and hospitals, market regulations or legal systems, etc. is raised by the revenue generated by the collection of taxes
2. Redistribution of resources by the richer section to the poorer section of the society.
3. Taxes are levied on certain products to eliminate externalities such as the taxes on tobacco to discourage smoking

Taxes are broadly divided into two categories- Direct and Indirect taxes.

Income tax is a direct tax imposed on an individual. Estate and wealth tax were also direct taxes, however, these are abolished now

Indirect taxes that were imposed in India are customs duty, central excise duty, service tax, sales tax, and value-added tax.

As of now GST has been implemented and has made all the other indirect taxes obsolete.

Important Terms and Definitions under The Income Tax Act, 1961 

Assessment year and previous year 

As per Section 2(9) of the Income Tax Act, 1961, states that assessment year means the 12 month period beginning on the 1st day of April every year. The assessee is required to file the income tax return of the previous year in the assessment year. As per S.2(34) of Income Tax Act, 1961, unless the context otherwise requires, the term “previous year” means the previous year as defined in section 3.

As per Section.3 of Income Tax Act, 1961, the term “previous year” means the financial year immediately preceding the assessment year

Say, for example, the year starting from 1st April 2018 and ending on 31st March 2019 is the assessment year 2018-19, the previous year would be 2017-18. The rates of assessment year are taken into consideration.

Who is a person under income tax?

 A person is defined under section 2(31) of the act. The term ‘person’ includes –

1. An individual.
2. A Hindu Undivided Family.
3. A Company.
4. A Firm.
5. An association of persons or body of individuals whether incorporated or not; 
6. A local authority; and 
7. Every artificial judicial; person not falling within any of the preceding  

Who is an Assessee

Any individual who has income earned or losses incurred, and is liable to pay taxes on these to the government in a particular assessment year, is an assessee.

Categories of the assessee –

1. Normal Assessee

• a person against whom proceedings are going on under the Income Tax Act, despite the fact that any tax or other amount is payable by him or not;
• a person who has undergone loss and filed a return of loss u/s 139(3);
• a person by whom some amount of interest or tax or penalty is payable under the income tax Act;
• any person who is entitled to refund of tax under this Act.

2.  Representative Assessee

• A person may not be liable for his own income or loss but he might also be liable for the income or loss of other persons say for example agent of a non-resident, guardian of a minor or a lunatic person, etc. In such cases, the person responsible for the assessment of the income of such a person is called representative assessee. Such a person is deemed to be an assessee.

3. Deemed Assessee

• In the case of a deceased person who has died after writing down his will, the administrators of the property of the deceased are deemed as assessee.
• In case if a person dies intestate (without writing down his will) the eldest son or other legal heirs of the deceased person are deemed as assessee.
• In case a minor, lunatic or an idiot person has income taxable under the Income Tax Act, their guardian is deemed to be an assessee.
• In case a non-resident has income in India, any person acting on his behalf is deemed as an assessee.

4. Assessee-in-default

• A person is deemed as an assessee-in-default if he fails to fulfill his statutory obligations. In case an employer is paying a salary or a person who is paying interest, it is their duty to deduct TDS and deposit the amount of tax so collected in Government treasury. If he fails to deduct TDS or deducts tax but does not deposit it in the treasury, he is known as assessee-in-default.

Concept of income 

The Income Tax Act does not define the term Income but section 2 (24) of the Act describes the various receipts which are included under the ambit of income. 

1. Profits and gains.
2. Dividends 
3. Voluntary contributions received by a charitable trusts 
4. The value of any perquisite or profit in lieu of salary. 
5. Any capital gains. 
6. Any winnings from lotteries, 
7. Crossword puzzles etc. 

Charging section 

• Section 4 of the Income-Tax Act, 1961 is the Charging section of the Act

Accordingly, the section provides that :

• The rates are prescribed under the finance act of every assessment year. Income tax for the previous year is to be charged according to the given rates.
• The taxable income is that of the previous year not the assessment year
• The total income, computed according to the provisions of the act, is leviable
• Tds or advance tax wherever applicable is to be charged

Heads of income 

Income is classified under 5 main heads under section 14 of the act 

1. Income from salary
2. Income from house property
3. Income from capital gains
4. Profit and gains from business and profession
5. Other sources of income

Agricultural income 

Agricultural income is any rent or revenue by means of cash or in-kind, derived from a land, which is used for an agricultural purpose and land should be situated in India.

Income from agricultural should be produced by a cultivator or a rent receiver of that produce in-kind, which can be fit to take that into the market. 

The income should be derived from the sale by a cultivator or a rent receiver of that product which is produced or received by him, no process can be performed other than the process to render it fit for the market.  You can read more about agricultural income here.

Income deemed to accrue or arise in India

The income of a non-resident person or a foreign company is only taxable to the extent it arose in India. However, under section 9 of the income tax act, other provisions lay down the criteria as to why certain incomes are deemed to accrue in India even though they might actually arise out of India. 

Business connections – the term business connections has not been defined in the act but various judgments and circulars have emphasized on the meaning of it. 

As per the circular no. 23 of the income tax. Examples of non-resident having business connections in India have been given-

1. Branch office in India
2. Agent appointed for sale of goods for a non-resident.
3. Forming a subsidiary company, of a non-resident parent company, in India
4. Establish a factory in India to process the raw materials and the final product is then exported.
5. Financial relations between resident and non-resident company

Residential status

 The taxation laws classify taxable persons under three categories 

1. Resident person
2. Resident not ordinarily resident
3. Non-resident

Resident person – 

There are various tests to determine the residential status of a person

Test 1 – If the person is residing in India for 182 days, not necessarily at a stretch, in the preceding previous year, he is said to be a resident of India.

Test 2 – If the person is residing in India for 365 days or more in the previous 4 years and 60 days in the immediately previous year, he is said to be a resident.

Resident not ordinary resident – 

An individual is not an ordinary resident if

Test 1 – he has not resided in India for 9 out of the 10 previous years preceding that year

Test 2 – if the individual has not resided for 729 days or more in India in the 7 previous years

Test 3 – a Hindu undivided family whose manager has fulfilled above conditions

Let’s understand this with an example 

Question. Mr. John, a foreigner came to India for the first time in 2014 and settled here. He wants to file his income tax return for the assessment year 2015-16 and 2016-17. Determine his residential status for the said two years.

Answer. For the assessment year 2015-16, the previous year is 2014-15

For the previous year 2014-15, he is a resident, because, in the year ending 31st March 2014, he has stayed in India for more than 182 days.

For the previous year 2015-16, he is a resident for he has stayed in India for more than 182 days in the year ending 31st March 2016

For the previous years 2014-15 and 2015-16, he is not an ordinary resident because he is non-resident India for 9 out of 10 previous years preceding previous years and he has not resided in India for 730 or more days during 7 preceding previous years.

Residential status of a company 

As per section 6(3) of the income tax act, a company is said to be a resident of India if either of the following conditions is fulfilled-

1. If the company is an Indian company, or 
2. If the place of effective management, for that year, is in India.

Place of effective meaning is the place where all the important key managerial and commercial decisions for the conduct of business are made.

What is Payroll Tax

Payroll taxes are Medicare and social security taxes, employers withhold half of these taxes from employee’s wages. Medicare taxes are a contribution to medical benefits for the person above the age of 65. Social security taxes are for the benefits of the retired person or disabled person or for their dependents. These two taxes are called as FICA tax, i.e., Federal Insurance Contribution Act Tax, which is defined by Internal Revenue Service. These taxes are paid to the Federal or State authority.  

If a person is self-employed then he doesn’t need to pay FICA tax, but a Self-employed Tax needs to be pay by him.

FICA Tax rate is equal for employers and employees. Self-employed tax rates are different from FICA tax rates.  

Income Tax Calculator

The income tax calculator is available for quick and easy access to basic tax calculation for the public. It does not assure the taxpayer for an exact payable tax. Some basic details have been provided to the calculator. 

In the above image, as per details are given to the calculator total tax liability of a female individual is Rs. 12,875.

Income Tax Form 16

Form 16 is a Tax Deduction at Source Certificate issued by the Income Tax Department for the tax deduction of an employee by the employer on their behalf. It is a mandatory certificate for the taxpayers. This deduction can be reimbursed by the employee later. This form contains details of the transaction between the deductor and the deductee. The certificate must be issued immediately after the Financial Year or before the 15 June of the next year. TDS certificate should be issued every year.

Form 16 contains two parts – Part A and part B.  

Part A – Part A of Form 16 contains :

• Name, TAN & PAN and address of the employer;
• Name, PAN card and address of the employee;
• Details of tax deducted and deposited quarterly with the government;
• Assessment Year for which TDS certificate issued;
• The time period of the employment;
• TDS payment acknowledgment number.

If an employee changes his employment during one financial year, then the employer will issue different Part A of Form 16.

Part B – Part B is the annexure of Part A which contains details in regards to the computation of taxable income, this Form will attach along with Part A of Form 16 and if the employer has more than one job in any Financial Year than he has to attach more than one Form. Part B has components: 

• Detailed salary and deduction under any scheme or policy;
• Deduction under chapter 6A of the Act;
• Educational cess and surcharge, if any;
• All the financial details of both the jobs.

Income Tax Return Definition

As per the Black Law Dictionary (9th Edition) An Income Tax form on which a person or entity reports income, deductions, and exemptions and on which tax liability is calculated.

Income Tax Return (ITR) is a statement of tax and income, which an individual files to inform the government that how much income he has earned in a financial year. ITR should be filed before the last date, i.e., 31st July. There are different ITR form filed by an individual as per their applicability, and the eligibility of a person is mentioned in the form. There is a total of seven ITR forms which we will discuss one by one.

• ITR-1. Any individual or a member of HUF can file this ITR form, where income earned from salary/pension from an ordinarily resident person, income or loss from One House Property, family pension for ordinarily resident people or any other sources.

 This form is divided into five parts, i.e., Part -A, Part-B, Part-C, Part-D, and Part-E, which requires some details in terms of income.                      

• ITR-2. This form can be filed where income earned from salary/pension whether ordinarily resident or not ordinarily resident and non-resident people, an individual who is the director of any company, income or loss from One House Property or more than One House Property, income from capital gains or loss on the sale of investment or property, unlisted equity shares, family pension whether for ordinarily resident person or not ordinarily person and non-resident people, income from other sources, dividend income taxable under section 115BBDA exceeding Rs. 10 lakh, unexplained income under section 115BBE, person claiming deduction under section 57 under the heads of “other sources”, deduction under Section 80QQB or 80RRB, total income exceeding Rs.50 lakhs, agricultural income exceeding Rs. 5,000, tax under Section 90, 90A, or 91, TDS credit relating to self/other people as per section 5A and income from foreign sources.

• ITR-3. All the income sources mentioned in ITR-2 including income from business or profession, computation of presumptive income from business or profession covered under Section 44AD, 44ADA, and 44AE from not ordinarily resident and non-resident person, and deduction in respect of units located in Special Economic Zone under Section 10AA.

• ITR-4. This form is filed by an individual or HUF and other Assesses. In the case of Individual or HUF, income which is explained under ITR-1 including income under Section 44AD, 44ADA, and 44AE from a person resident in India in respect of presumptive business or profession. In the case of other assessees, firm excluding LLPs computation of income under section 44AD, 44ADA, and 44AE. 

• ITR-5. ITR-5 is filed by other Assesses for firms including LLPs, Association of Persons, Body of Individuals, Local Authority, Artificial Juridical Person, Business trust and investment fund as referred under Sec. 115UB.

• ITR-6. ITR-6 is for companies other than companies claiming under section 11.

• ITR-7. This form is for persons including companies under section 139(4A), 139(4B), 139(4C), and 139(4D) in respect of furnish return. 

Income Tax Slab

Income Tax rates divide into four slabs, i.e., 0%, 5%, 20% and 30%.

As per this slab, an individual is liable to pay taxes or tax deducted from their salary.

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Corporate Income Tax

Corporate income tax is levied by the government on the profits of the companies. The tax rate paid by companies varies every year by the Income Tax Department. There are two types of Company explained under the Income Tax, i.e., Domestic Company and Foreign Company. 

Domestic Company.- Domestic Companies are those which are registered under the Companies Act of India. A company can be a Public Company or a Private Company. I also include those companies which are situated or registered outside India but having control and management completely in India.  

Foreign Company.- Foreign Companies are those which are not registered under the Companies Act of India and having control and management completely outside India.

Now, under Corporate Income Tax these both companies are liable to pay taxes. In the case of Domestic Company, tax is levied on universal income but for Foreign companies, only that income is taxable which is earned within India.

Income earned from the Company included-

1. Profit earned by the business;
2. Capital gains from sale;
3. Income from renting property;
4. Income from other sources.

Income Tax Rate of the company depends on the turnover of the company during the Financial Year. 

Income Tax Return form file by a company is ITR-6 and ITR-7. As per Income Tax, requirement companies have to audit their accounts and submit it along with ITR form. This audit is known as Tax Audit. 

Conclusion 

Tax is a mandatory charge levied on a person by the government, as we have discussed what taxes are paid by a person and how he can calculate his payable tax. There are a number of Provisions provided under law for taxpayers as per their requirements. The government has provided various forms to pay income tax whether a person is an individual or HUF or a company or he is an ordinary resident or non-ordinary or non-resident person, as per their applicability they can file income tax. 

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