This article has been written by Hitansh Sharma, independent legal practitioner.

The Hon’ble Union Finance Minister Nirmala Sitharaman presented her maiden budget in the Parliament, announcing a slew of measures aiming to boost the economy and generate employment. In this Modi Government 2.0’s first budget presented by the first female Finance Minister in the country handling the Ministry of Finance charge full-time, there was a distinct focus on women empowerment, rural growth, infrastructure, digital economy and MSMEs. Aiming a 5 trillion dollar economy and outlining a 10-point vision for the next decade, this budget also reiterated the Government’s agenda to usher in labour law reforms, improve the job numbers and give impetus to the start-up ecosystem and entrepreneurship. The Finance Minister, in her budget speech, stated that the start-ups in India are taking firm roots and their continued growth needs to be encouraged.

Let us take a quick look at some of the announcements made in the budget on the labour/employment front and for boosting the start-ups and entrepreneurship sentiment: 

Labour and employment: 

Rationalising of labour laws:

The Finance Minister, in her speech, reiterated the agenda of the Modi Government to codify the labour laws into 4 compact codes. It was stated that this will ensure process of registration and filing of returns gets standardized and streamlined. Further, with various labour related definitions getting standardized, it is expected that there shall be less disputes. It is to be remembered that this major reform push gained momentum when the Government came out with drafts of these codes during its last tenure. The stakeholder comments were invited and the deliberations took place. However, the process came to a halt with the announcement of Lok Sabha elections and Code on Wages Bill had lapsed after the 16th Lok Sabha was dissolved. The Finance Minister has made it clear, in no uncertain terms, that this is on the top of the agenda for the Modi Government 2.0. It is pertinent to note that The Code on Wages Bill was recently approved by the Union Cabinet. 

Pradhan Mantri Karam Yogi Maandhan:

This scheme will provide pension benefits to retail traders and small shopkeepers. Taking note of the overwhelming response received by the predecessor of this scheme announced before the elections, the Finance Minister announced that this pension benefit will be extended to about 3 crore retail traders and small shopkeepers whose annual turnover is less than INR 1.5 crore under this new revamped scheme. Enrolment into the scheme will require only Aadhaar and a bank account and rest will be on self-declaration. Pradhan Mantri Shram Yogi Maandhan was launched on March 5, 2019, aiming at providing INR 3,000 per month as pension on attaining the age of 60 to workers in unorganized and informal sectors. According to the Government, about 30 lakh workers have joined this scheme already.

National Pension System 

The Finance Minister stated that the Pension Fund Regulatory and Development Authority (PFRDA) implements and regulates the National Pension System (NPS) and Atal Pension Yojana through various intermediaries including, inter-alia, the NPS Trust. The Government has decided to take steps to separate the NPS Trust from PFRDA with appropriate organizational structure. This is being done keeping in view the wider interest of the subscribers and to maintain arm’s length relationship of the NPS Trust with PFRDA, the Finance Minister announced in her budget speech. Further, in order to give effect to the cabinet decision already taken to incentivise NPS, it is proposed to- (i) increase the limit of exemption from current 40% to 60% of payment on final withdrawal from NPS; (ii) allow deduction for employer’s contribution up to 14% of salary from current 10%, in case of Central Government employee; and (iii) allow deduction under Section 80C for contribution made to Tier II NPS account by Central Government employees.

Skilled manpower

The focus of the Modi Government on the Skill India Mission continues as the budget laid focus on skilled manpower and need to train the youth in upcoming sectors like artificial intelligence, robotics, etc. It was stated that the Government enables about 10 million youth to take up industry-relevant skill training through the Pradhan Mantri Kaushal Vikas Yojana. The Government also wants to prepare the youth to take up jobs overseas, and thus will increase focus on skill sets needed abroad including language training.

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Start-ups and entrepreneurship: 

Exclusive TV channel for start-ups:

An interesting announcement is made in this year’s budget as the Government has proposed to start a television programme within the DD bouquet of channels exclusively for start-ups. According to the Government, this will serve as a platform for promoting start-ups, discussing issues affecting their growth, matchmaking with venture capitalists and for funding and tax planning. The most interesting aspect is that the Government proposes that this channel be designed and executed by start-ups themselves. 

Focus on new-age skills

This may not directly benefit start-ups. However, given the sectors Government wants to focus on, surely a better talent pool (to hire from) will be created for growing number of start-ups in upcoming sectors. Government wants to train a large number of youth in new-age skills like artificial intelligence, internet of things, big data, 3d printing, virtual reality and robotics. 

Aspire 

The Finance Minister announced this measure for entrepreneurial push in traditional industries and to give a boost to rural economy.  The Scheme for Promotion of Innovation, Rural Industry and Entrepreneurship (ASPIRE) has been consolidated for setting up of Livelihood Business Incubators (LBIs) and Technology Business Incubators (TBIs), contemplating setting up of 80 LBIs and 20 TBIs in 2019-20 to develop 75,000 skilled entrepreneurs in agro-rural industry sectors. It was also announced that Government will support private entrepreneurships in driving value-addition to farmers’ produce from the field and for those from allied activities, like bamboo and timber from the hedges and for generating renewable energy.

Tax and other reforms:

The Finance Minister stated that to resolve the so-called ‘angel tax’ issue, the start-ups and their investors who file requisite declarations and provide information in their returns will not be subjected to any kind of scrutiny in respect of valuations of share premiums. The issue of establishing identity of the investor and source of his funds will be resolved by putting in place a mechanism of e-verification. With this, funds raised by start-ups will not require any kind of scrutiny from the Income Tax Department. In addition, special administrative arrangements will be made by Central Board of Direct Taxes for pending assessments of startups and redressal of their grievances. It will be ensured that no inquiry or verification in such cases can be carried out by the Assessing Officer without obtaining approval of his supervisory officer. The Finance Minister further announced that, at present, start-ups are not required to justify fair market value of their shares issued to certain investors including Category-I Alternative Investment Funds (AIF) and this benefit will be extended to Category-II AIF also. Other announcements were relaxation of some of the conditions for carry forward and set off of losses in the case of start-ups and proposal to extend the period of exemption of capital gains arising from sale of residential house for investment in start-ups up to March 31, 2021 along with relaxation of certain conditions of this exemption. You may refer to Annex to Part B of Budget Speech (Direct Tax Proposals, Paragraph 3.3) for more information. 

Stand-Up India Scheme:

As per the government website, this scheme aims at financing SC/ST entrepreneurs and women entrepreneurs by facilitating bank loans for them. Considering the positive response to this scheme, the Government has decided to continue this scheme for the entire period coinciding with the 15th Finance Commission period of 2020-25. It was noted that the synthesis between stand up and start up with commercial banks playing the catalyst has brought a transformational change.

Support to women entrepreneurs: 

The Government is supporting and encouraging women entrepreneurship through various schemes such as Pradhan Mantri Mudra Yojana (PMMY), Stand UP India and the Self Help Group (SHG) movement. The Finance Minister announced that in order to further encourage women enterprise, the women SHG interest subvention programme will be expanded to all districts. Furthermore, for every verified women SHG member having a jan dhan bank account, an overdraft of INR 5,000 is proposed to be allowed. One woman in every SHG will also be made eligible for a loan up to INR 1 lakh under the PMMY.

The author have referred the fallowing link  Click Here

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This article has been written by Pankhuri Anand, a student of Banasthali Vidyapith, Rajasthan. This article discusses the concept and procedure for Reference, Review and Revision under Civil Proceedings and what all the provisions have been laid down under the Civil Procedure Code 1908 regarding reference, review and revision.

Synopsis

Every human being commits a mistake and judges are also human beings. So, the provisions of reference, review and revision are given under the Civil Procedure Code in order to maintain the fairness and accuracy of the justice system.

Reference

Every case has different circumstances. Many questions come before the subordinate court that requires the assistance of the High Court. When the subordinate court in order to take assistance refers the case to the High Court, it is called as the reference. The opinion of the High Court can also be sought when the subordinate court has some doubts about the question of law. Reference is always made to the High Court. Section 113 of the Code of Civil Procedure empowers a subordinate court to state a case and refer it to the High Court for its opinion.

Object

The object behind the provisions of Reference is to empower the subordinate court to obtain the opinion of the High Court in non-appealable cases when there is a question of law so that any commission of error could be avoided which couldn’t be remedied later on.

As held in the case of Diwali Bai v. Sadashivdas, the reference must be made before passing of the judgement of the case.

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Conditions for seeking reference

Reference can be sought only in a suit, appeal or an execution proceeding which is pending before the court. Order 46 Rule 1 of the Code of Civil Procedure prescribes certain conditions to be fulfilled in order to obtain a reference from the High Court. The conditions required to obtain a reference from the High Court are as followings:

1. The suit or appeal must be pending in which the decree is non-appealable or the execution of such decree is still pending.
2. There must arise a question of law of such proceeding, suit or appeal.
3. There must be a reasonable doubt on such question by the court trying the suit or appeal or, by the court executing the decree.

There are two classes of the question of law on which the subordinate court may entertain the doubt

1. Questions related to the validity of any Act, Ordinance or Regulations.
2. Any other questions.

Under the second condition, reference is optional but in the first condition i.e., a question related to any Act, Ordinance or Regulations, reference is obligatory. Reference is obligatory in such condition when the following conditions are fulfilled:

1. In order to dispose of the case, the decision of such question is necessary.
2. The subordinate court seeking reference is of the view that the Act, Ordinance or regulation is ultra vires.
3. There is no determination that such Act is ultra vires either by the Supreme Court or the High Court to which the court is subordinate to.

A reference can be made by the judge only in the case when the judge who is dealing with that case has a reasonable doubt about it. When any matter is already decided by the High Court to which the court seeking reference is subordinate to then it is not considered as a reasonable question of doubt.

Who can apply for reference?

The court of civil judicature can refer the case to the High Court either on an application made by a party or suo moto. As held in the case of Ramakant Bindal v. State of U.P, no reference can be made by a tribunal.

Powers and duty of the referring court

A reference can be made in a suit, appeal or execution proceeding pending before the court only when there is a doubt of law. As held in the case of Banarasi Yadav v. Krishna Chandra it was held that the question of law about which the subordinate court is doubtful, must have actually been called upon in the case for adjudication and it shouldn’t be a hypothetical question. 

Therefore, no reference can be made on a hypothetical question or a point that may or may not arise in future. But, if the situation arises it may be considered for reference.

Power and duty of the High Court

The High has consultative jurisdiction in this context. When reference is sought from the High Court and while dealing it the High Court is not bound to decide only the question of law in doubt. As held in the case of S.K. Roy v. Board of Revenue, the High Court can consider the new aspects of law also if any new aspect arises.

To answer the question for which reference is sought totally upon the discretion of the High Court as discussed under Order 46 of the Code. The High Court may answer the question and send the case back to the referring court to dispose of it in accordance with the law. It is also upon the discretion of the High Court to refuse to answer the question and it has even power to quash it.

Effects of Reference

In the case of L.S Sherlekar v. D.L. Agarwal, it was held that when the reference is sought from the High Court and the decree is confirmed if the High Court answers the question in favour of the plaintiff. If the answer of the High Court is against him, the suit is dismissed.

Rule 3 of Order 46 states the provision that after hearing the parties if the High Court desires, it shall decide the referred points and transmits a copy of its judgement to the subordinate court which shall dispose of the case in reference to said decisions.

Review

A substantive right to review is provided to be exercised in certain circumstances under section 114 of the Code of Civil Procedure and the procedure to be followed for review procedure is laid down under Order 47 of the Code. The general rule laid down by Order 20 R. 3 of the Code which is followed in a legal procedure is that once a judgement is signed and pronounced by the court, that court ceases to have control over the matter. The court passing judgement or order cannot later alter its pronouncement. But, the power of review is an exception to this general rule.

The meaning of “review” is “the process of judicial re-examination of a case by the same court and by the same judge who has passed the judgement or order earlier”.

Review of an order once passed by the Court is a serious step and it cannot be taken lightly. This power requires to be applied with great care and seriousness.

Object

Any human being can make a mistake or error and so do the judges. So, the procedure of Review has been embedded in the legal system to correct the mistakes and prevent any miscarriage of justice as held in the case of S.Nagraj v. State of Karnataka.  The review application is not an appeal or revision made to the superior court, but it is a request to recall and reconsider the decision made before the same court.

Circumstances when a review petition is maintainable

A review petition is maintainable before the court under the following circumstances:

When no appeal lies in the case

According to section 114 of the code, when no appeal lies from an order or a decree then it can be reviewed by the Court. In the case of Ganeshi Lal v. Seth Mool Chand, it was held that taking into consideration sub-clause(c) of Section 114, the application of review against a decree passed by a Small Causes Court is eligible.

Even if an appeal is dismissed on the ground of being incompetent or time-barred, the party can go for review procedure as held in the case of Ram Baksh v. Rajeshwari Kunwar.

When appeal lies in a case but not preferred

When the provision of appeal is available but it is not preferred by the aggrieved party then also a review petition is maintainable. As held in the case of Sitaramasastry v. Sunderamma an application for review can be presented before the court only till no appeal is preferred against that order. The court cannot entertain an application for review when an appeal is already instituted before making an application for review.

Reference from Small Causes Court

The court may review the judgement on a reference made by the Small Causes Court.

Grounds of Review

There are certain grounds laid down under Rule 1 of Order 47 on which an application made for the review of a judgement is maintainable:

• On the discovery of new and important matter or evidence

A court can review its judgement when some new and important matter or evidence is discovered by the applicant which couldn’t be produced or was not available at the time of passing the decree.

• When the mistakes or errors are apparent on the face of the record

When there is an apparent error on the face of record then the court may review its judgement or decree. As decided in the case of Karutha Kritya v. R. Ramalinga Raju, the error includes an error of fact as well as an error of law.

• Other sufficient reason

The last ground for review is any sufficient reason. Any sufficient ground considered for review by the court comes under this ground. It could be any reason which the court feels sufficient to review its judgement in order to avoid a miscarriage of justice.

In the case of Bank of Bihar v. Mahabir Lal, the Supreme Court laid down certain reasons which can be considered as a sufficient reason for review such as- when there has been any misapprehension of the true state of circumstances, or when the party has not been given fair chance to produce any statement or evidence, or no notice was sent to the party, or the court has failed to consider a material fact or evidence, or the court has omitted any statutory provisions. 

The limitation period for Review

The limitation period for filing an application for review as given under Article 124 of the Limitation Act, 1963 is thirty days for a court other than the Supreme Court from the date of decree or order.

Is the power to review an inherent power?

It is a well-settled matter that the power to review is not an inherent power. It is required to be either expressly conferred by law or by necessary implications. 

Inherent power to review of a Court  of plenary jurisdiction

The Court of plenary jurisdiction such as a writ court, in order to prevent a miscarriage of justice and to correct grave errors, has been empowered to review its orders. On the leading case law regarding this context is Shivdeo Singh v. State of Punjab in which the same was discussed.

Being the final court of the country who is the last and final to decide on a matter, it has been empowered to review and to undo injustice. In exceptional circumstances, it can even exercise the power suo moto. 

Who can make a review?

As discussed till now, a review is the reconsideration of the same matter by the same judge who has decided the matter. If the judge who decided is present in the court, then he alone has jurisdiction to review the matter decided by him. He is considered to be the best to reconsider the case as only he will be able to remember what arguments were done and what reason he used to decide that case.

However, if there is a situation that the same “judicial officer” cannot be available and any unavoidable reason might prevent the judge who decided the case to review it, then in such exceptional circumstances any judge or court of the concurrent jurisdiction can review it and give decision as held in the case of Reliance Industries Ltd. v. Pravinbhai.

Revision

If we go to the literal meaning, “to revise” stands for “to look again” or “to look repeatedly at” or “to go through a matter carefully and correct where necessary”. The High Court has been empowered with the revisional jurisdiction under section 115 of the Code of Civil Procedure,1908.

Object

The object behind empowering the High Court with revisional jurisdiction is to prevent arbitrary illegal or irregular exercise of jurisdiction by the subordinate court. Under section 115 the High Court is empowered to keep an eye on the proceedings of subordinate courts that the proceedings are being conducted in accordance with the law, under its jurisdiction for which it is bound for and in furtherance of justice as held in the case of Major S.S Khanna v. Brig. F.J. Dillion. 

But, the judges of the subordinate court have absolute jurisdiction to decide a case and even when they have wrongfully decided a case, they do not commit any “jurisdictional error”. With the power of revision, the High Court can correct the jurisdictional error when committed by the subordinate court. The provision of revision provides an opportunity to the aggrieved party to get their non-appealable orders rectified.

Conditions

Section 115 of the Code of Civil Procedure Code lays down all the conditions when the High Court can exercise its revisional jurisdiction:

1. The case must be decided.
2. The revisional jurisdiction is exercised when no appeal lies in the case decided by the subordinate court.
3. The subordinate court has decided such case by:

1. Exercise of jurisdiction which is not vested to that court by law., or
2. It has failed to exercise the vested jurisdiction, or
3. Illegal exercise of the vested power or with immaterial irregularity.

The High Court is not entitled to vary or reverse the order or decision of the subordinate court unless such order is in favour of the party who has applied for revision. Also, the revisional jurisdiction is not to be exercised if in that matter appeal lies to the High Court.

So, by analysing section 115, we can observe that the revision is done mainly on jurisdictional errors by the subordinate Court.

Can the power of Revision be exercised if an alternative remedy is available?

The exercise of revisional jurisdiction is upon the discretion of the court and the parties cannot claim it as a right. In the leading case of Major. S.S. Khanna v. Brig. F.J. Dillion, it was held by the Supreme Court that the court has to take into consideration several factors before exercising the revisional jurisdiction. One of the that is considered is the availability of an alternative remedy. When an alternative and efficacious remedy is available to the aggrieved party, then the court may not exercise its revisional power under section 115 of the Code.

The limitation period for Revision

According to article 131 of the Limitation Act, 1963 for a revision of the decree or order, the limitation period is 90 days. The revision application is required to be made before the High Court within the limitation period.

Distinctions

Reference and Review

Reference and Revision

Review and Revision

Reference and Appeal

Review and Appeal

Revision and Appeal

Conclusion

The provisions for reference, review and revision provided under the Code of Civil Procedure are different ways by which the court can work more efficiently for fairness of justice system even when there is no provision of appeal.

Whenever a matter is decided is the Court and the judge passes a decree or order then there might be circumstances where there has been any mistake or error, or a party is aggrieved by the order or decree or, there can also be circumstances where the subordinate court is doubtful on such question of law. And, a general rule once a judgement is pronounced it cannot be altered by the same court.

So the provision of review, reference and revision have been inserted under the legal system to avoid a miscarriage of justice. 

Where the reference is sought by the subordinate court itself when there is a doubt on the question of law to the High Court, revisional power is exercised when there is a jurisdictional error by the subordinate court. The power of review is vested in the subordinate court itself which has passed the decree or order.

The process of Review, reference and revision are also very different from Appeal or Second appeal. The subordinate court can seek reference from the High Court on its own but for review or revision, an application is required to be filed. So, all three procedures have different grounds, conditions and procedures. 

If you want to know more about the same with reference to CrPC, then Click Here.

Reference

1. Sitaramasastry v. Sunderamma [(1996) AIR 173 AP]
2. Diwali Bai v. Sadashivdas, [(1900) ILR 24 Bom 310]
3. Reliance Industries Ltd. v. Pravinbhai, [(1997) 7 SCC 300]
4. Takwani, C.K, Civil Procedure, Eighth Edition, 2017
5. The Code of Civil Procedure, 1908

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The Article is written by Bhavna Singh, Fairfield School of Law, Kapashera affiliated to Indraprastha University, Delhi.

Every day when we sleep again while pushing the snooze button, at the same time world-class leaders/businessmen and entrepreneurs are working to improve their health and skills. 

The list includes billionaire Naveen Jain, famous actor Dwayne Johnson and Akshay Kumar, Richard Branson (founder of Virgin Group), Jack Dorsey (Twitter’s CEO), Tim Cook (Ex CEO of Google), Barack Obama (Ex-president of USA). 

Famous author Robin Sharma in his book ‘5 AM Club’, writes about the good habit of waking up early in the morning. According to him top performers wake up early in the morning and sharpen up their skills. We all should have this habit if we want to succeed in life, but what to do after waking up. The book suggests us to follow the 20/20/20 formula.

What is the 20/20/20 formula?

The formula has been made to improve our overall productivity. It says that we need to divide our first hour in 3 part of 20 minutes each. 

The first part of 20 minutes 

During this period we should do some exercises most probably high-intensity exercises which result in the release of sweat in our body. Exercises help us to reduce stress. It improves our focus and thinking power. It is scientifically proved that when we exercise, our brain produces a protein named BDNF (Brain-Derived Neurotrophic Factor). It helps us to reduce our stress level. BDNF accelerates neuro connection processes in our mind. These connections help us to concentrate and improve our thinking power. That means till 5:20 AM we will get done with a new neuro connection-making process when our competitors were sleeping.

The second part of 20 minutes

During the second 20 minutes, we should reflect our life. We should analyze our goals and actions while being in isolation. We need to think if we are taking suitable actions to reach our goals or are we just becoming a part of the rat race. In his book, Robin suggests us to make a note of our goals and daily tasks to analysis how many steps closer we are to our goals. We should analyze if our day is long enough to complete our daily tasks. It will help us to make good decisions. We can choose important tasks which can help us to reach our goals. These 20 minutes shall give us a chart of our progress, a good idea of steps to be taken in the future. It will make us realize where we exist and how we can make ourselves better.

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The third part of 20 minutes

During this time period, we have to grow by enhancing our knowledge in our field of interest. We can increase our knowledge by reading books, biographies of world class-leaders or brilliant personalities. If we don’t have enough time to do so, we can even read book summaries. We can listen to audiobooks, etc.

If we follow this 20/20/20 formula daily for a year then after a year we will be done with 122 hours exercise, 122 hours life analysis and consumption of top quality knowledge for 122 hours. Most of the billionaires have been following this formula for many years.

Famous Indian personality Naveen Jain belongs to a middle-class family. He worked hard and became a billionaire. He is an IITian. Even after becoming a billionaire he spends most of his time to charity and always work to improve the lives of the poor.

He said that “he wakes up early in the morning and take care of his mind. After that, he works out and takes care of his body. Then he meditates which takes care of his soul. He says that business is like a war. You have to be completely prepared and unless you haven’t have mind body and soul, You can’t fight that battle.”

What is Twin Cycle of Elite Personality?

Since childhood, we have been taught to work hard for long hours to reach our goals. But Robin told in his books that a group of elite personality has a balanced ratio between their work and rest. We not only grow when we are working, however, but our progress is also going on when we are in rest mode.

In farming, a farmer works hard during a season. Then a workless phase comes when the farmer has nothing to do. People think that nothing is going on however that’s the most important part of farming. During that phase, the soil is on its rest mode and it is restoring its nutrients which are going to decide future production and quality of crops.

We feel guilt when we are in rest mode and we ignore it. However, the author says that rest is as important as work. It improves our productivity. It is impossible if we decide to work for 6 days a week and to have food on the seventh day. We need to have food regularly to work continuously. Food and rest restore our energy and inspire us to work again with double energy and enthusiasm.

Why Sleep is important?

We need to understand the value of sleep. Research proves that sleep is an important factor which tells us how long we are going to live. Our sleep-Wake Cycle is regulated by Melatonin hormone. All electronic devices emit a blue light which negatively affects Melatonin level. It causes a reduction in the quality of our sleep. We should switch off our electronic devices an hour before going to sleep. During that hour we can talk to our family members, read books or we can take a hot bath. It helps us to have a good sleep.

What is Four interior Empire?

Our fulfilment or true happiness is based upon four-factors. The author has named these four factors as ‘four interior empires’. These are:

• Mindset
• Heart set
• Health set 
• Soul set

Mind Set

We need a strong mindset to make good decisions. Strong mindset helps us to deal with the struggle. It gives us the power of visualization. The strong mindset has a commitment to succeed. It gives us the ability to adapt and fix the negatives. Strong mindset helps us to be a good performer. That’s the reason top performers work on their mindset.

Heart set

These days every motivational speaker gives strategies to improve our mindset. A good mindset can provide us with only 25 % good results, what about the remaining 75 % result? Heart set deals with our heart. The heart is concerned with our emotions, relations with our family and friends. What, If we don’t have good relations with our loved ones? We must have a brilliant heart set to run a business effectively. A good heart set helps us to make good decisions.

Health set

Everything is useless if we don’t have good health or if our life has medicines more than anything else. If we want to leave a large legacy behind us, we need to live for long years and for that we need good health. Bad health improves the chances of our dependency on others. A dependent person can’t run a business effectively. Once a billionaire sarcastically said that “you can’t make good business if you are dead”. Elite personalities know this secret. They always work to improve their health however, an average person thinks that exercise is a waste of time. 

Soul set

It is the last and important factor. We are so busy with our lives that we always run for materialistic things. Every day, with a peaceful mind we should ask ourselves who we are? Some people meditate to do this, some call it a prayer. We can increase our spiritual power by connecting ourselves to our maker.

What is Habit Installation Protocol? 

According to Author, it takes 66 days (approximately 9 weeks)  to install a habit into our mind. We need to go through 3 stages of 22 days each to install a habit inside our mind. These three stages are:

Stage one: Destruction phase

Stage two: Installation phase

Stage three: Integration phase

Destruction Phase

This stage is the toughest stage when we lose our old habits and try to install new habits. We need will power to cross this stage. We need regular motivation and determination.

Installation phase

This stage is the most frustrating stage. When we ask ourselves, why we are doing it? Is it giving any good results to us or it is just wastage of time. We want to quit but we should not quit. We have to keep it continue.

Integration phase

It is the last and easiest stage when waking up early in the morning would be easy for us however, it wouldn’t be a habit. After completing 66 days of the habit installation process, we will feel happy. Everything will look easy to do. We won’t need any willpower or struggle to wake up early in the morning. We wouldn’t be needing any alarm to wake up early in the morning and this habit will become a part of our life.

Conclusion

Good Health, peaceful mind, emotions, soul, etc. are really important for a person to get success in life. A person who wants to succeed never forgets to keep a balance between all these. But most of the time we ignore it and become a part of the rat race. We must analyze our existence regularly and must always keep ourselves away from the rat race. If you are able to follow all these habits then congratulations you are a part of The 5 AM Club.  

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The Article is written by Bhavna Singh, Fairfield School of Law, Kapashera affiliated to Indraprastha University, Delhi.

“A lot of people have gone further than they thought they could because someone else thought they could.” 

_Zig Ziglar, American Author, Salesman, and Motivational Speaker

Sometimes we can lose hopes, but they know that we can do it. They trust us and their trust makes us do which we could never think of doing. They are our mentors. A life without a mentor is directionless. 

Similar to other fields lawyers also need mentorship. If we look around we will notice that every successful person had a mentor. They know the value of a mentor.

“A small amount of time invested on your part to share your expertise can open up a new world for someone else.” – Mark Zuckerberg, CO-founder and CEO Facebook

“As we look ahead into the next century, leaders will be those who empower others.” – Bill Gates, Founder and Technology adviser, Microsoft 

“If you ask any successful businessperson, they will always (say they) have had a great mentor at some point along the road.” – Richard Branson, founder Virgin Group

Reflect, before deciding anything

It is important to reflect before setting up a goal and a path for the same. We can ask ourselves, Who we are? What makes us happy? What is our passion? What makes us awesome? What are our skills, strength and traits? What do we want from life? What do we want to give to life? These questions can help us to reflect better.

Once we are able to answer these questions. We can set a goal for life. Setting up a goal is not enough however we need a mentor. A mentor helps us to reach our goals faster. 

What is mentorship?

Mentorship is giving as much as one gets. It is a mutually beneficial relationship. These are the two sides of a coin.

What are the roles of a Mentor?

Before looking for a mentor, we need to understand the role of a mentor. A mentor is different from a teacher. A teacher gives us a word to word understanding however, a mentor guides us to take better steps. A mentor neither does things for us nor he tells us how to do it. Mentor is there for us to help. He gives tips, tricks, and advice because he already has good experience in his field, he gives us smart alternatives. He helps us to identify legal pitfalls.

Who is a good mentor?

A good mentor should have a good track in his field. He must be open listening to his mentee. He must be thoughtful and allows his mentee to go beyond his limits. A good mentor is always friendly to his mentee. He has a decent and balanced life and shares a moment to chat with his mentee.

How to choose a Mentor?

We need to have a keen observation of our goals and the path. It is not easy to find a good mentor however, these questions can help us to find the best mentor, Why we need a mentor? Are we a mentee material? What does a mentor do? What are we looking for from our mentor to do? What would we like to learn from our mentor? How the mentorship will look? How often would we like to meet or talk to our mentor? How we are going to interact with our mentor?

A legal mentor can be our ex-bosses, colleague or a worker with a good reputation. A famous legal personality can be our mentor as well. 

First, we need to make a list of people who we think, can be our potential mentor. We have to choose the best person from the list but on what basis? Don’t worry!

We can choose the best person on the following basis:

• The person should be known to us.
• The person should be a little concerned for us.
• The person can give us some time on monthly or quarter yearly or even semi-yearly basis. 

A  person who doesn’t have some time for us, can’t be a good mentor. A mentor guides us better if he is concerned for us. A mentor who knows about us can suggest better options. A person is suitable to choose as our mentor if he shares things which we value in our life or he has a similar legal background which we want to have. 

What is the ‘TEA’ theory’?

It is the best theory to choose a mentor.

T- Theory

E- Experience 

A- Application

‘T’ denotes the person who knows the theories but has never applied the theory. e.g. Professors. They know the theory but they don’t have experience of the application of it. It’s not bad to choose a professor as our mentor but it’s the lowest quality of guidance. 

‘E’ denotes the person who knows the theory and has a good experience of the same. It can be a person who had worked with successful lawyers. 

‘A’ denotes the person who knows the theory and has a good experience by applying the theory. It can be a lawyer or a judge. They can provide us with the best guidance to start our career as a lawyer. It would be best to choose a lawyer or a judge as our mentor.

What after choosing a person?

After choosing a person from the list we need to study. Do we associate to the right person? What makes us so appealing about him? Can he add value to our career? Do we challenge ourselves or do we go with the flow? If the answer is a yes, we are ready to select him as our mentor. 

It is important to prove that we are coachable. We put ourselves into work. We take care of ourselves. These things can make our mentor choose us as their mentee. A conversation or meeting is important to go further. 

It is important to make a list of questions to ask the mentor. However a question like “ Will you be my mentor?” can be the worst question ever. It would look like, you are asking someone to marry you, on the first meeting only. Questions must be thoughtful for which Google or books have no answer. We shouldn’t ask about them or what they do because if we were unknown to this then why we would have chosen them as our mentor. We can ask them how would they start a legal journey if they have to start during the current going year. 

We can start the conversation by telling them about ourselves. It is important to remember that we don’t make a wrong impression on them. We should also give them opportunities to ask questions from us.  

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What after meeting mentor?

We need to evaluate the fruit. If the meeting worked out. If the person can guide us in a good way. We can choose the person as our mentor. If we find the person suitable to us and the person is ready to be our mentor.

Can a high Profile personality be our mentor?

We can even choose a high profile person as our mentor. These people have an inbox full of people asking for something. We need to differentiate ourselves from them. We have to take certain difficult steps to reach out to the person it can take years even to make them our mentor. 

6 steps to convince a high profile personality to be your mentor.

• Are we a mentee material?

We need to ask ourselves, are we a mentee material? Are we open? Are we wanting to be critiqued? Are we respectful? We need to make ourselves realize that we are actively wanting to improve ourselves on an everyday basis. If we really want to become better. We can move to the next step.

• Do we need to go beyond their digital mentoring?

Most of the high profile personality producing a lot of mentoring material these days. e.g. podcast, videos, books. We need to ask ourselves, do we really want to go beyond what they are already producing? 

• Identify 3 goals they have within the next 12 months.

We need to start stalking them, not in a crazy way but in a simple and positive way. It will help us to understand what are the things they value in their life. We have to figure out if these are the same things which we value in our life. If things are not the same then it is clear that they are not a suitable mentor for us. Stalking will help us to identify their 3 goals which they have within the next 12 months. 

• Get them closer to 1 or more of their goals (add value)

Help them to get closer to their goals. Do whatever you can, to get them closer to their goals. It will add value. 

• Update them about our progress.

We have to update them about our progress on whatever we have done to add value to their goals. We can comment on videos or on posts or we can directly write to them. Doesn’t matter if they don’t respond but it will put you on their radar because they are noticing you or someone from their group has an eye on your steps. 

• Elevate our value to them over time

We can elevate our value to them by taking some bigger steps. We can find someone to buy their business. For example, if the high profile personality is producing podcasts or writing books. We can convince a community or institution to buy thousands of books or we can convince them to download thousands of episodes of their podcasts. It means we are selling their business for free. This step separates us from a fan to a peer.

• Repeat step 3-6 over & over & over

It’s the most important step. Doesn’t matter how many years it takes but work because at a time all your competitors would have dropped out and at last you will get the results. 

How to make mentorship healthy?

The mentor and mentee relationship need to be evolved organically but to make this relationship healthier, we need to press into the relationship. We need to be accountable to our mentor. We shouldn’t expect from them to do things for us, not even to show us how to do something, instead of it we can rely on them to check our own guts. It will help us to validate our work. 

We learn to think about problems. It is not good to ask for too much from our mentor. A regular follow up of our work will make this relationship healthier. Regular meetings, talks or connections are must but it is important to keep in mind that we don’t occupy our mentor’s too much time. It is good to keep the schedule and stick upon it. 

How to appreciate our mentor’s support

Asking for feedback from your mentor is really good. It helps us to analyze our progress. Listening to our mentor and make a note of their needs, can help us to provide help to our mentors, what they are looking for. It is good to ask questions from our mentor. Most of the time it don’t irritate them however, it is a pleasure to them. We should not be afraid of asking even silly questions. It is well said that “Often the most stupid thing about stupid questions is, not asking them.” 

It is good to make yourself available for your mentor. We can provide them with the best quality work for free. We should prove to them that we respect their time and advice by making meetings convenient to them. We can schedule meetings in their office or near to that. Giving them before asking is the best way to appreciate their support.

A mentor like it when they see that mentee is sticking on the schedule what he/she had kept. We can gift them books or a bottle of wine as a token of thanks. We should always keep a connection with them on Linkedin. We should create opportunities for our mentor to see us grow. 

What is the Dead Mentor theory?

Along with an alive mentor, we can have a dead mentor as well. We can choose a dead personality to have guidance. For example Steve Jobs. 

We can read their content. We can analyze the people who have worked with them. Study of their interviews can help us a lot. We can study, what their enemies say. Why their enemies don’t like them. 

Why one mentor is not enough?

We have two persons as our parents because if we are not satisfied with the advice of one, we can go to another one. 

The same theory applies while choosing a mentor. We should have more than one mentor so that we can have the best advice. It may happen that your mentor is busy when you badly need him. Then you can go to your second mentor. It is important to keep in mind that we should never compare our mentors. All the mentors are best at their own place. We should never disrespect one mentor on another.

It is important to understand that everyone has their own way to treat their mentees. Some mentors provide occasional advice while some mentors like regular updates and like a structured relationship. They are strict with the schedule. They leave if they find that mentee is not willing to learn and wasting their time. 

Sometimes we may feel challenged and want to leave when the mentor asks for follow up but we should not lose hopes. The best way to overcome it that we must be clear from our side. 

The post 7 Easy Steps to Find the Best Mentor 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 what are the different hazardous substance in the world which is destroying the community and the people in it. It will also be talking about the different legal provision and the step to prevent the destroying the community by these hazardous substances. 

Introduction

Are you aware that India ranks 177 out of 180 on the Environmental Performance Index 2018, which has plummeted 36 points from 141 out of 180 from 2016? It is in the bottom five of the Environmental Performance Index, which is a disgrace to the country’s image. Taj Mahal is considered as one of the seven marvels of the world but if you look at its condition now. A monument which was famous for its beauty is now turning yellow due to environmental pollution which is a result of human action.

Let us explore the different hazardous substance and their legal provision.

Statutory Provision

As per Section 2(e) of the Environmental Protection Act, 1986 “Hazardous Substance” has been characterized as “an element or preparation which, by reason of its synthetic or physic-synthetic properties or managing, is a danger to cause harm to individuals, other existing animals, flora, microorganisms, other belongings or the earth”.

Harmful and Other Wastes (Management and Transboundary Movement) Rules, 2016

These principles are the essential guidelines which address the supervision of harmful waste in India. They were set up under the Environment (Protection) Act, 1989, which gives the Central Government the capacity to “acknowledge all such measures as it might consider essential or convenient for the purpose of protecting and improving the quality of the environment and counteracting, controlling and abating ecological pollution”. These standards were endorsed after the Bhopal Gas Tragedy Case to counteract further such cases. 

List of things that Generate Hazardous Waste

Here is a list of few substances which produce Hazardous waste and which infects the environment in a ruthless manner:

• Petrochemical procedures and pyrolytic tasks.
• Raw petroleum and production of natural gas.
• Cleaning, draining and upkeep of petroleum oil stockpiling tanks including ships.
• Refining of oil or pre-preparing of utilized oil or reusing of waste oil.
• Industrial operations utilizing mineral or engineered oil as lubricant in hydraulic systems or other applications.
• Secondary generation and/or industrial use of zinc.
• The primary generation of zinc or lead or copper and other non-ferrous metals aside from aluminium.
• Secondary manufacturing of copper.
• Optional manufacturing of lead.
• Creation as well as industrial use of cadmium and arsenic and their compounds.
• Production of essential and optional aluminium.
• Metal surface treatment, such as drawing, recolouring, cleaning, arousing, cleaning, degreasing, plating, etc.
• Creation of iron and steel including other ferrous amalgams (electric heater; steel rolling and finishing mills; Coke broilers and by products of plant).
• Solidifying of steel.
• Production of asbestos or asbestos-containing materials.
• Generation of caustic soda and chlorine.
• Production of mineral acids.
• Generation of nitrogenous and complex composts.
• Production of phenol.
• Creation and additional use of industrial solvents.
• Production and/or modern utilization of paints, colours, lacquers, varnishes and inks.
• Creation of plastics.
• Production and modern utilization of pastes, organic cement, cements and tars.
• Creation of canvas and textiles.
• Industrial generation and formulation of wood preservatives.
• Production and industrial utilization of engineered dyes, dye-intermediates and pigments.
• Generation of a natural-silicone compound.
• Production/formulation of medications/pharmaceutical and health care product.
• Creation, and formulation of pesticides including stock-piles.
• Leather tanneries.
• Electronic Industry.
• Pulp and Paper Industry.
• Treatment of harmful chemicals and wastes.
• Sterilization of utilized for the treatment of hazardous wastes/chemicals.
• Air/Gases, Water and Wastewater from the process and common effluent treatment plants (CEPTS) must be refined and treated properly according to the procedure laid down by the government of India.
• Organic compounds/ solvents have to go through the purification process.
• Waste treatment process which is dangerous, For eg. pre-paring, incineration and concentration.
• Ores containing heavy metals such as Chromium, Manganese, Nickel, Cadmium etc. must go through chemical processing.

These are a few things which are depleting our environment and which is causing a lot of imbalance for all living creatures. Various things have been mentioned under the Schedule of the Hazardous and Other Waste Management and Trans-boundary Movement) Rules, 2016.

Responsibility for Proper Management of Harmful and Other Wastes

According to Section 4 of the Hazardous and Other Wastes (Management and Transboundary Movement) Rules, 2016, these are the process that needs to be followed by various people for proper management of Hazardous Waste:

1. Occupier:
   1. 1. They should pursue anticipation, minimization, reuse, recycle, recuperation, utilisation including co-handling; safe disposal
      2. They ought to have a safe and environmentally sound management of harmful waste.
      3. An authorized user will receive the harmful waste created in an establishment or it will be discarded according to the authorised disposal facility.
      4. In accordance with the guidelines laid down, the occupier’s establishment will transport the waste produced to an authorised actual user or to an authorised facility.
      5. Storage and removal facility will be provided to the operator of that facility with such explicit data as may be required for safe storing and disposal as may be required by those who expect to get harmful waste treated and disposed of by the administrator.
      6. They will take all the steps while managing hazardous waste to-
         1. Provide people working on-site with appropriate training, equipment and the information necessary to ensure their safety.
         2. Contain contaminants and anticipate accidents and confine their consequences on human beings and the environment. 
2. State Government:
   1. 1. Approval of State Government to ensure earmarking and allocation of industrial space or recycling shed, pre-processing and utilization of harmful waste in the current and upcoming industrial park has been done for the Department of industries in the State or any other government agency.
      2. Labour department in the State or any other government agency approves in such regard by the State Government shall-
         • Assist the advancement of groups of workers to facilitate setting up such facilities;
         • Ensure, acknowledge and enlistment of workers involved in recycling, pre-processing and other utilisation activities;
         • To ensure the well being and health of workers involved in reusing, pre-processing and other utilisation annual monitoring must be taken;
         • Development exercises for the labourers engaged in recycling, pre-processing and other utilisation for the development of industrial skills;
      3. Integrated plans for effective implementation of the provisions and submit an annual report to the Ministry of Environment, Forest and Climate Change, in the Central Government is required to be done by the State Government. 

Procedure for Treatment, Storage and Disposal

According to Section 16 of the Hazardous and Other Wastes (Management and Transboundary Movement) Rules, 2016 the proper procedure for treatment, storing and removal facility of hazardous and other waste is as follows:

1. The State government, occupier, operator of a facility or any association of occupiers will uninhibitedly or mutually or severally be held answerable for the identification of destination for establishing the workplace for treatment, storing and removal of the harmful and other waste.
2. According to the technical procedure issued by the Central Pollution Control Board, the operator of ordinary office or occupier of the captive facility, will plan and set up treatment, storing, and removal facility which will get an endorsement from the State Pollution Control Board for structure and configuration in this regard.
3. Monitoring and setting up the task of common of the task of the common, or captive treatment, storing and removal facility as per the guidelines laid down by the State Pollution Control Board.
4. Monitoring and setting up and the task of the common or captive treatment, storing and removal facility shall be done by the State Pollution Control Board.
5. According to guidelines or standard operating procedures issued by the Central Pollution Control Board, the operator of regular facility or occupier of a captive procedure will be in charge for the safety and ecological sound operation of the facility and its closure and post-closure phase.
6. Records of harmful and other waste dealt by the operator of common facility or occupier of a captive facility are required to be maintained under Form 3.
7. An Annual return under Form 4 is required to be filed by the operator of common facility or occupier of a captive facility on or before the 30th day of June following the financial year to which the returns relate to them in the format given to them by the State Pollution Control Board.

Bhopal Gas Tragedy Case

Facts

In the year 1984, India witnessed one of its most terrifying and devastating industrial disasters. In 1970 an American Enterprise, Union Carbide Corporation (UCC) established a pesticide plant in a densely populated region of Bhopal due to its central location and transportation network. The site was supposed to be used for light industrial and commercial activity. During 1984 the company was manufacturing Selvin at one-quarter of its capacity due to decreased capacity. UCIL had made arrangements to transport it to a different country due to its low decreased production. Due to low profits the company was ignoring safety standards, which the government was aware of, which further lead them to be reluctant to impose strict control.

On 3rd December 1984, massive amounts of Methyl isocyanides had engulfed the city which resulted in a loss of life for both humans and animals on a massive level. This resulted in huge loss of life and the hospital were packed with both dead bodies and clueless patients and Doctors who were not at all aware of the cause of death nor were they aware of any treatment which was not shared by the UCC group which had claimed trade secrecy as an excuse.

After the incident, UCC distance itself from its Indian subsidiary and tried to invade itself from the liability by transferring the blame on them.

The gas leak affected the lives of many, it led to various ocular, respiratory, gastrointestinal, reproductive and neurological disorders among the people. The most affected were the pregnant women who had to abort their babies, or had premature delivery or to infants with foetal abnormalities.

The grievance was also inflicted on the environment. Even after the death of so many people, the company refused to take active responsibility and restore health environment. During its production year, the company dumped a huge amount of contaminated waste outside and inside the plant site. Almost all the contamination still remain in the plant site. These waste have degraded slowly and have polluted the soil and groundwater. This threatened a lot of people and will keep on spreading until it is properly disposed of.

Judgement

In the Year 1986, the Union of India filed a complaint in the Hon’ble District Court of Bhopal in September seeking an interim compensation of Rs. 3.5 Billion, however, the Madhya Pradesh High Court diminished it to Rs. 2.5 Billion. UCC again appealed to the Hon’ble Supreme Court. The court ordered UCC to 470 Million Dollars (approx. 750 Crore Rupees) ‘in full settlement of all claims, rights and liabilities related to and arising out of the Bhopal gas calamity. In terms, all civil proceedings were concluded and criminal procedures were suppressed.

In the year 2010, Seven former representatives, including the former UCIL director, were convicted in Bhopal of causing death by negligence and sentenced to two years imprisonment and fine of 2000$.

Views

The basic negligence on the part of the company, that they had not provided proper training or had provided any safety equipment to the workers. They were not keeping a regular tab on the work or on the machinery which was being used. Due to the low sales of the company was trying to neglect things which were a safety concern for everyone. During the internal inquiry, it was found out that most of the safety systems were not working properly. This proved that UCC was only interested in the declining profits which led them to neglect the wellbeing of workers and the people near the plant, who were all killed mercilessly in an accident and negligence on the part of the Company.

It was due to this accident that the government of India felt the need to provide environment laws to protect the wildlife from this evil humanity, it was also during this time that the government also provided us with Hazardous and other waste rules, 1987.

Even after many years of the disaster, the waste is still lying around the site which polluting the soil and groundwater, which is causing a problem to the environment and the people living there. Earlier the government was not able to decontaminate the place properly as they did not have the proper procedure or methods to do so, and the company was hiding behind legal framework wherein they refused to share the information of the plant as part of their trade confidentiality.

Amendments

Over the years there have been many developments in the industry which may have led to an increase in the different types of products being introduced and being used in the development of a new product due to which there might be an increase in new types of Hazardous and Other Waste. Here are some of the major Amendments which have been made to protect the Environment. These Amendment of 2016 are as follows:

1. The ambit of the Rules has been extended by including ‘Other Waste’.
2. Waste Management grading in the procedure of priority of prevention, minimization, reuse, recycling, recovery, co-processing; and safe disposal has been incorporated.
3. All the procedures under the rules for permission, import/export, filing of annual returns, transportation, etc. have been re-examined altogether, demonstrating the stringent methodology for the management of such harmful and other wastes with a simultaneous simplification of procedure.
4. The fundamental responsibility of framework to shield the wellbeing and environment from waste handling industry has been recommended as Standard Operating Procedure (SOPs), explicit to waste type, which must be complied by the stakeholders and guaranteed by SPCB/PCC while conceding such authorisation.
5. The system has been simplified to unite all the approvals as freedom for setting up of harmful waste disposal facility and import of different wastes.
6. Streamlining and authorization procedure for co-handling of harmful waste to recoup energy and put on discharge standard premise rather than on a trial basis.
7. Co-preparing a particular mechanism over disposal for utilization of waste as a significant asset, or for recovery of energy has been given.
8. Streamlining by rearranging the record-based procedure by rethinking the list of waste regulated for the procedure for import and export of waste under the rules.
9. Exemption from the need of obtaining Ministry’s authorization for the import of metal scrap, paper waste and different categories of electrical and electronic hardware for reuse.
10. Endorsement of Standard Operating Procedure(SOPs) specific to waste type for the essential need for infrastructure to safeguard the wellbeing and environment from the waste-production industry.
11. Introduction to the duties of the State Government for environmentally stable supervision of harmful and other waste is as follows:
    • • Setting up/Designating specified space or shed for the purpose of reusing, pre-processing and other utilization of harmful waste.
      • To ensure the safety and health of workers and attempt industrial skill development.
      • To enlist the workers associated in recycling, pre-processing and other utilization exercises.
      • To form a gathering of workers to empower setting up such facilities.
12. Assessment of list of techniques generating harmful waste considering inventive headway into the venture.
13. Reconsidering the list of waste and concentration limits according to international standard and drinking water standard.
14. The accompanying items have been blocked for import:
    • • Waste edible fats and oils of animals, or vegetable cause;
      • Household waste;
      • Basic Care Medical equipment;
      • Tyres for direct reuse reason;
      • Solid Plastic wastes including Pet bottles;
      • Waste electrical and electronic gathering scrap;
      • Other chemical wastes especially in solvent structure.
15. Sanction by the State government to submit a yearly report to the Ministry of Environment, Forest and Climate Change and also to set up an integrated arrangement for viable execution of these provisions.
16. Submission by the 30th September of every year which contains a yearly inventory of waste generated, waste reused, recouped, utilised including co-processed should be done by the State Pollution Control Board.

 Amendments in the year 2019 

1. Solid plastic waste has been rejected from import into the country including in Special Economic Zones (SEZ) and by Export Oriented Units (EOU).
2. Exporters of silk waste have now been given prohibition from requiring authorisation from the Ministry of Environment, Forest and Climate Change.
3. Electrical and electronic assemblies and segments manufactured in and exported from India if found damaged can now be imported back into the nation, within a year of export, without obtaining consent from the Ministry of Environment, Forest and Climate Change.
4. Ventures which do not require consent under Water (Prevention and Control of Pollution) Act 1974 and Air (Prevention and Control of Pollution) Act 1981, are now exempted from requiring approval under the Hazardous and Other Wastes (Management & Trans-boundary Movement) Rules, 2016, provided that hazardous and other wastes generated by such enterprises are handed over to the lawful actual users, waste collectors or disposal facilities.

Other Legislation for Environment Protection

Ministry of Economic Environment was established in the year 1985, it is the apex body which provided rules and regulations for protecting the environment. It has laid down many statutory rules to protect the environment those are:

• The National Green Tribunal Act, 2010
• The Air (Prevention and Control of Pollution) Act, 1981
• The Water (Prevention and Control of Pollution) Act, 1974
• The Environment Protection Act, 1986
• Hazardous Waste Management Regulations
• E-Waste (Management and Handling) Rules, 2011
• Batteries (Management & Handling) Rules, 2001
• The Wildlife Protection Act, 1972
• The Forest Conservation Act, 1980
• Public Liability Insurance Act, 1991
• The Biological Diversity Act, 2002
• Coastal Regulation Zone Notification

Conclusion 

It is not easy for people to cope with the Bhopal Gas Tragedy, they still feel for their loved ones. They are still not able to live a proper healthy life, still children are being born with diseases and complaint it is hard for them to live. Every industry should follow these safety protocols to dispose of these hazardous waste, they should make sure that no other person is affected by these harmful waste.

The post Handling of Hazardous Substances and Legal Provisions 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 heads of income under the Income Tax Act.

Introduction 

Section 14 of the income tax lays down that there can be various modes of income for a person. These modes are classified into 5 broadheads for the purposes of computation and determination of total income and tax rates apply thereafter. 

The 5 main heads of incomes are- 

1. Income from salary
2. Income from house property
3. Capital gains
4. Profit and gains from business and profession 
5. Income from other sources

Income from salary  

Section 15 of the act lays down the conditions under which an income falls under the head of ‘salaries.’ 

1. Any remuneration is due from the employer to any former employee(assessee) for the due course of his employment in the previous year, whether paid or not.
2. Salary paid to an employee by the employer or former employer in the previous year even though it was not due to him.
3. Salary paid to an employee by the employer or former employer in the previous year which was not charged under income tax in any other previous years.

The key element of this head is that it mandates a relationship between employer and employee. If an employer-employee relationship is not there, the income will not be accessible under the head of salaries.

Section 17 of the Act has mentioned the term ‘salary’, which included-

1. Wages;
2. Any annuity or pension;
3. Any gratuity;
4. Any charges, commissions, perquisites or benefits in lieu of or notwithstanding any compensation or wages;
5. any advance of salary;
6. Any payment received by a worker in regard to any time of leave not benefited by him;
7. The yearly accumulation to the balance at the employee partaking in a perceived Provident Fund, to the degree to which it is chargeable to assess under Rule 6 of Part A of the fourth schedule;
8. The total of all wholes that are included in the transferred parity as alluded to in sub-rule 2 of Rule 11 of PartA of the Fourth schedule of an employee partaking in a perceived Provident Fund, to the degree to which it is chargeable to assess under sub-rule 4 thereof; and
9. The contribution made by the Central Government or any other employer in the previous year, to the account of an employee under a pension scheme, referred to in Section 80CCD

Allowances – 

The employer pays allowances to his employees in order to fulfill his personal expenses. Allowances can be fully taxable or partly taxable.  Partly taxable allowances include house rent allowance and special allowances under section 10(14) (i)&(ii).

Fully taxable allowances are:

• Dearness Allowance
• Overtime allowance
• Fixed Medical Allowance
• Tiffin Allowance
• Servant Allowance
• Non-practicing Allowance
• Hill Allowance
• Warden and Proctor Allowance
• Deputation Allowance

Perquisites – 

In addition to their salary, the employees are often given some other benefits which may or may not be in cash form. For example, rent-free accommodation or car given by the employer to the employee.

Reimbursement of bills is not a perquisite. Perquisites are only given during the continuance of employment.

Taxable perquisites include

• Rent free accommodation
• Interest free loans
• Movable assets
• Educational expenses
• Insurance premium paid on behalf of employees

Exempted perquisites include:

• Medical benefits
• Leave travel concession
• Health Insurance Premium
• Car, laptop etc. for personal use.
• Staff Welfare Scheme

Profits in Lieu of Salary:

Section 17(3) gives a comprehensive meaning of profits in lieu of salary. Any payment due or accrued to be paid to the employee by the employer. Payment to be valid under section 17(3), there are two essential features- 

• There must be compensation received by an assessee from his employer or former employer;
• It is received at or in connection with the termination of his employment or adjustment of terms and conditions.

‘Profit in lieu of Salary’ is taxable on ‘due’ or ‘receipt’ basis. Payment from unrecognized provident or superannuation fund is taxable as “profit in lieu of salary” if that balance consists employer’s contribution or interest on an employer’s contribution.

Exceptions to section 17(3) (exempted under section 10)

• Death cum retirement gratuity;
• House rent allowances;
• Commuted value of pension;
• Retrenchment pay received by an employee;
• Payment received from a statutory provident fund or recognized provident fund;
• Any payment from an approved superannuation fund;
• Payment from the recognized provident fund.

Computation of income tax on salary:

Let’s take an example –

1. An individual, let’s say, Mr. A, receives the following pay –

           Basic salary – Rs. 2,50,000 per annum;

           Dearness Allowance – Rs. 10,000 per annum;

           Entertainment Allowance – Rs. 3,000 per annum;

           Professional Tax – Rs. 1,500 per annum; 

          then how much amount will be taxable from his salary?

  Ans. Find out total gross salary = basic salary + Dearness Allowance + Entertainment Allowance, i.e., 2,50,000 + 10,000 + 3,000 = 2,63,000.

           As per deduction under section 16(iii) = 2,63,000 – 1500 = Rs. 2,61,500

         Income tax rate on income Rs. 2,61,500 is 5%, which will be equal to Rs. 13,075 and this much amount will be taxable. 

Income from house property

The total net assessable estimation of property, comprising of any buildings/lands/flats belonging to the assessee, when assessee is the owner apart from the property which is under the use for any business or profession undertaken by him, the proceeds of which are taxable under the income tax act, falls under the ambit of income from house property. (section 22)

The income from house property includes lease-hold and deemed ownership.

The income from house property is taxable after considering the deductions under Section 24 of the act. In the case of repairing and maintenance of the property, thirty percent of the Net Annual Value is deductible. This deduction is not allowed on a self-occupied property.

For the purpose of computation of income from house property, house properties are divided into three categories. House property which :

1. Were let out during the whole previous year
2. Were partly vacant but partly let out.
3. Let out for some time and then used for personal residence.

Deemed ownership- 

Section 27  provides that certain persons are not legal owners of a property but are still considered to be deemed owners under certain conditions.

Condition 1 – Transfer of property to a child or spouse, without consideration.

Condition 2 – Holder of an impartible estate is deemed to be the owner of the entire estate.

Condition 3 – Members of a co-operative society or company or association of person

Condition 4 – Person in possession of a property on lease for more than 12 years as per Section 269UA(f).

Co-owners of a property – Section 26

If there are two or more owners of a property and if the share of co-owners is determinate, the income generated from such property is calculated as income from one property and it is divided amongst co-owners. They are entitled to relief under section 23.

Unrealized rent (rent not paid by the tenant for some reason)

The unrealized rent is not included while calculation of net annual value. If the rent is received in the subsequent years, then the amount will be added to the income from house property of that particular year. 

Set-off and carry forward of losses

Under Section 70 of the Income Tax Act, if a person has incurred losses from house property, he is allowed to set them off from the income of any other house property. 

Section 71 of the Act lays down the provision of setting off the losses from house property from any other heads of Incomes but not casual income (income which might not arise again)

The unadjusted losses are allowed to be carried forward for a maximum period of 8 years starting from the year succeeding to the year in which loss has occurred. In the subsequent years, the set-off is allowed only from the head ‘Income from House Property’. 

The amount of losses that can be set-off on the house property from other income heads is restricted to Rs 2 lakh either house is a self-occupied or let out property.

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Computation of Income from House Property

Step 1 – deduct the municipal taxes paid during the year from the Gross Annual Value, which will be Net Annual Value.

Step 2 – deduct the amount under section 24(a) and under section 24(b) for which deduction is provided. 

Example – 

An individual, let’s say Mr. X owned three properties and give it on rent. What will the Gross Annual Value of all the Properties? Details of the properties provided below-

Ans : Step 1: reasonable expected rent, higher values of municipal rent or fair rent.

Step 2: deduct unrealised rent (e.g. 8,00,000-1,00,000)

Step 3: higher values computed from step 1 and step 2 will be Gross Annual Income.

Income from capital gains

Any profit or gain emerging from the exchange of capital assets held as investments are chargeable under the head capital gains. The gain can be because of short-and long term gains. A capital gain emerges just when a capital asset is transferred. This implies if the asset moved is certainly not a capital asset; it won’t fall under the head of capital gains. Profits or gains emerging in the previous year in which the transfer occurred will be considered as income of the previous year and chargeable to IT under the head Capital Gains and indexation will apply, if applicable.

To fall under the ambit of income from capital gains, there must be –

1. A capital asset
2. Which is transferred by the assessee
3. The transfer has taken place during the final year
4. Gain or loss has arisen from it

Capital assets include all kinds of properties whether tangible or intangible, movable or unmovable, which are owned by the assessee, may or may not be for business and professional purposes.

Capital assets do not include assets like stock in trade, goods of used personal effects, agricultural land, etc.

Capital gains are of two types 

1. Short term capital assets – those assets held by an assessee for at most 36 months, immediately prior to its date of transfer.  

ITO v. Narayana K Shah 2000 74 ITD 419 Mum. 

In this case Court held that where the assessee held certain shares in a company by virtue of which a right of occupancy in a flat is conferred on him, these shares cannot be treated as a ‘share’ mentioned in proviso to section 2(42A) and as such where such shares are sold after being held  for a period of fewer than 36 months, gain arising therefrom is to be treated as short-term capital gain.

1. Long term capital assets – those assets held by an assessee for more than 36 months. Long-term capital gains are generally taxable at a lower rate.  

There are some cases where long term capital assets do not require a term of 36 months, assets held for more than 12 months is valid for long term capital assets. Those conditions are –

1. Listed Equity or preference shares;
2. Securities listed in a recognized stock exchange, like debentures, security exchange;
3. Units of UTI;
4. Units of Mutual Funds;
5. Zero coupon bond;
6. Unlisted equity or preferential shares;
7. Units of equity oriented fund.

Tax on long-term capital assets is 20 percent. 

Exemptions under section 54 :

Exemptions in regards to the transfer of a long-term capital asset, only when the assessee is an individual or a Hindu Undivided Family. A capital gain arises from the transfer of residential property, where the assessee has purchased another house property within a period of one year before or two years after the date of transfer or transfer took place within a period of three years after the date of construction.

The amount of exemption available will be whichever is lesser of capital gains and the cost of the new house.

Computation of Capital Gains

Long-term Capital Gain-

Problem – Mr. Shah has a gross total income of Rs. 4,00,000 and has invested Rs. 1,50,000 in tax-saving instruments. After applying all the deductions total taxable income would be Rs. 2,00,000. And exemption tax limit as per the income tax slab is Rs.2,50,000. By the sale of gold, he has a long-term capital gain of Rs. 5,00,000.

Solution- total taxable income = 2,00,000, which is less than 2,50,000;

Long-term capital gain @ 20%  = 4,50,000 (difference between exemption tax limit and actual taxable income) = 10,000 

This much mount can be save from tax.

Tax rates are the same for short-term capital gain.

Income from Profit and Gain from business and profession

Business and Profession has been defined under Section 2(13) and Section 2(36) respectively.

Business. It includes any trade, commerce or manufacture or any adventure or concern in the nature of trade, commerce, or manufacture.

Profession. “Profession” includes vocation.

Section 28 of the Income Tax Act covers the “Profits and gains of Business or Profession”, and there is following income which shall be chargeable under the head “Profits and Gains of Business or Profession” :

1. Profits and Gains of any business or profession;
2. Any compensation or other payments due to or received by any person specified in section 28(ii), who is managing the whole affairs of an Indian Company or other than an Indian company at the termination of his management; 
3. Pay determined by a trade, professional or comparable association from explicit services performed for its members;
4. Benefit on sale of import entitlement license, incentive by way of cash  compensatory support and drawback of duty;
5. Any benefit on an exchange of the Duty Entitlement Pass Book Scheme;
6. Any benefit on the exchange of the Duty-Free Replenishment Certificate;
7. The estimation of any benefit or perquisite, regardless of whether convertible into money or not, emerging from business or the activity of a profession;
8. Any interest, pay, reward, commission or compensation received by a partner of a firm from such firm;
9. Any amount received under a Keyman insurance policy including Bonus;
10. Income from speculative transactions;
11. Any total received in real money or kind, by virtue of any capital asset being devasted, destroyed, discarded or transferred, if the exhaustive expenditure on such capital asset has been permitted as a deduction under section 35AD.

Deduction under the heads of “Profits and Gains from Business or Profession” has been mentioned under Section 30 to 37. 

• Section 30.  A deduction shall be permitted if the lease, rates, taxes, fixes, and insurance for premises used for the purpose of business or profession.

• Section 31.  A deduction shall be permitted on the repairs and insurance of apparatus, plant or furniture used for the purposes of business or profession and the sum paid on the present repairs shall not include any expenditure in the nature of capital expenditure.

• Section 32.  Deterioration of buildings, hardware, plants or furniture, being tangible assets, know-how, licenses, copyrights, trademarks, patents, establishment or some other business or business privileges of comparative nature, being intangible assets owned, completely or somewhat, by the assessee for the purposes of the business or professions.

• Section 32AC. Deduction in respect of investment in new plant or hardware where the organization being an assessee occupied in business assembling or production of any article or thing after 31st March 2013 or if any new asset procured or installed by the assessee is sold within five years of its establishment etc.

• Section 33AB. where an assessee carrying on business of developing and assembling tea or coffee or rubber in India has, before the expiry of six months from the end of the previous year or before the due date of furnishing the return of his income, kept in a record affirmed by the Tea Board or Coffee Board or rubber Board or Central Government and should be audited by an accountant. 

• Section 33ABA.  Any amount or amounts in an account deposited with the State Bank of India by an assessee who is carrying on business consisting of the prospecting for, or extraction or generation of petroleum or natural gas or both in India and consented to an arrangement with the Central Government for such business and that account must be audited by an accountant.

• Section 33AC. Carrying on the business of the ship by the government organization or public company, deduction shall be permitted not surpassing 50% of benefits derived from the business of operation of a ship.

• Section 35. If any expenditure laid out or expanded on scientific research related to the business, deduction shall be permitted but the organization has to enter in concurrence with the prescribed authority for co-operation in such a research and development facility and satisfies such conditions as to support the maintenance of accounts and audit.

• Section 35ABB. Expenditure for obtaining the license for media transmission services before the commencement of the business or thereafter at any time during the previous year and for which installment has really been made for acquiring the license.

• Section 35AC. Where an assessee incurs any expenditure by method for an installment of any amount to public sector company or a local authority or to an affiliation or establishment endorsed by the National Committee for carrying out any qualified venture or plan.

• Section 35AD. A deduction shall be allowed in the case of capital expenditure incurred, wholly or exclusively, for the purpose of specified business.

• Section 35CCA. Expenditure by method for installment to affiliations and establishment for carrying out rural development Programmes.

• Section 35CCC. Expenditure incurred on any agricultural extension project notified by the Board then deduction shall be allowed on the sum equal to one and one-half times of expenditure.

• Section 35CCD. When an organization causes expenditure on any ability advancement program advised by the Board then the sum shall be allowed for the deduction of a total equivalent to one and one-half times of expenditure.

• Section 35D. Amortisation of certain preliminary expenses.

• Section 35E. Deduction for expenditure on prospecting for, or extraction or production of certain minerals, for which deduction shall be allowed to the one-tenth of the amount of such expenditure.

• Section 36. Other deductions are-

• under section 36 (1)(i), the amount of any premium paid in regard to insurance against the danger of harm or annihilation of stocks or stores utilized for the purposes of the business or profession.
• under section 36 (1)(ib), the amount of any premium paid by any mode of payment other than cash by an assessee as an employer towards the health of the employee.
• under section 36 (1)(ii), any sum paid to an employee as bonus or commission for the services he rendered
• under section 36 (1)(iii), the amount of the interest paid in respect of capital borrowed for the purpose of business or profession.
• under section 36 (1)(iiia) the pro rata amount of discount on a zero coupon bond having regard to the period of life of such bond calculated in the manner as may be prescribed.
• under section 36 (1)(iv) employer’s contribution to recognized provident fund an approved superannuation fund.
• under section 36 (1)(iva) employer’s contribution to the notified pension scheme.
• under section 36 (1)(v) contribution towards approved gratuity fund.
• under section 36 (1)(va) employee’s contribution towards staff welfare scheme.
• under section 36 (1)(vi) write off allowance for animals which are used for the purpose of business or profession and have died or turned out to be for all time futile.
• under section 36 (1)(vii) bad debt amount incidental to the business or profession of the assessee must have been written off in the books of account of the assessee.
• under section 36 (1)(viia) provisions for bad and doubtful debts relating to rural branches of commercial banks.
• under section 36 (1)(viii) transfer to the special reserve.
• under section 36 (1)(ix) family planning expenditure.
• under section 36 (1)(x) contribution towards exchange risk administration fund.
• under section 36 (1)(xii) revenue expenditure incurred by entities established under any Central, State or Provincial Act.
• under section 36 (1)(xiv) contribution to credit guarantee trust fund.
• under section 36 (1)(xvi) Commodities Transaction Tax.

• Section 37 (2B). The expenditure acquired by an assessee on a commercial in any gift, leaflet, tract, handout or something like that, published by a political party, is not deductible.

Computation of income under the heads of “Profits & Gains of Business or Profession”

The amount of net profit is Rs. 4,00,000 of M/s D Ltd. and other information provided are:

Advance income tax debited to profit and loss account = Rs. 30000

Printing of brochures of a political party = Rs. 5000

The amount that has not to deposit till the date of filing of return = Rs. 50,000

What can be the taxable income of M/s D Ltd.?

Income from other sources

All sorts of incomes that are not covered in the above-mentioned heads are covered and chargeable under this head. Income from other sources is laid down in section 56 of the act.

A few of these are :

1. Dividend under section 2(22);
2. Winning from lotteries, horse races, crossword puzzles, and other games;
3. Contribution received by the employer as an assessee from his work towards the Staff Welfare Scheme;
4. Interest on debentures, government securities/bonds;
5. Where the assessee let on contract apparatus, plant or furniture belonging to him and furthermore buildings, pay from this is assessable as salary from other sources if it is not taxable under the head of “profits & gains of business or profession”;
6. Sum received under Keyman insurance policy including reward;
7. Salary from hardware, plant or furniture belonging to the assessee.

Gifts that cannot be charged:

1. Gifts received from any relative
2. Gifts received on the occasion of marriage
3. Gifts are given by the local authority
4. Gifts received in the form of inheritance
5. Gifts received from any funds, institutions, hospitals, etc.

Deductions applicable on income from other sources – section 56 and 57

Computation of Income from Other Sources

Computation of income from other sources can be done in two ways;

1. If income is one-time income or casual income then 30% tax is imposed on the total income.
2. If income is from any other method, then the tax shall be applicable in accordance with the tax slab.

Example- 

A person gets Family pension = Rs. 30,000 (exemption on this is 33.33% or 1500);33.33% of Rs. 30,000 = Rs. 9,999, this amount is less than 1500. So the taxable income is 30,000 – 9,999 = 20,001.Rs. 20,001 is taxable as income from other sources.

Conclusion

These five heads of income that we have discussed, provide a method to different categories of people to compute their income as per their applicability as a taxpayer and they can get to know by computation method that how much income is taxable after investing in different heads of income. So it will make easy for them to plan their capital in the right direction.

The post Know How to Calculate Your Tax Under Various Heads of Incomes appeared first on iPleaders.

This article has been written by M.N. Kaushika, a student of 4th year from the School of Excellence in Law. In this article the author discusses about the Marital rape in India and why it has not yet been criminalised.

“EXCEPTION TO SECTION 375 – Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape”.

The cardinal ideology underlying marriage is to regularise the sexual instinct of an individual. Howsoever does marriage- a social contract confer absolute rights on an individual to enter into non-consensual sexual intercourse towards his wife? Sir Mathew Hale ,Chief Justice in 17th century ,England said ,‘the husband cannot be guilty of rape committed by himself upon his wife ,for by their mutual consent sand contract, the wife hath given up herself this kind unto her husband which she cannot retract’. So is the case in India, Former CJI Deepak Mishra pronounced, ‘I don’t think that marital rape should be regarded as an offence in India, because it will create absolute anarchy in families and our country is sustaining itself because of the family platform which upholds family values’. Thus the  Institution of Marriage  bestows absolute rights on the husband to have non-consensual sexual intercourse with his wife forcibly and brutally on the basis of archaic notion ‘implied irrevocable consent’. Thus marital rape is immunised from penalisation. 

Constitutionality of marital rape exclusion clause

At the basic outset, any law is valid only if it withstands the test stone of constitutionality. Marital rape exclusion clause violates the fundamental rights of an individual guaranteed under Indian constitution. Preamble, a basic structure of Indian constitution, solemnly resolved to secure to all citizens the justice, liberty of thought and expression, equality of status yet in reality, India is way behind in executing it. Article 14 enunciates equality before law and equal protection of law to all the individual. Howsoever it permits reasonable classification based on rational nexus and intelligible differentia. The state by retaining exception to section 375 in IPC grossly violates article 14 as there is no intelligible differentia or rational nexus in making distinction between a non-consensual forcible sexual intercourse when the  perpetrator being third person in one case and husband of the women in other case, criminalising the former offender and securing the later when the psychological trauma of both acts being the same. Marriage did not serve as reasonable classification among women. Further under the Protection of Children from Sexual Offences Act, 2012 (‘POCSO’), it is illegal to have sexual intercourse with a child under the age of eighteen. However, the exception clause of section 375 permits this, in the event a girl is married and is between the ages of fifteen to eighteen. Nevertheless, the apex court took a dynamic move in the Independent Thought v UOI by deleting a part of exception to section 375 by criminalising non-consensual sexual intercourse between a man and his wife if her age is between 15 and 18, thus protecting minor irrespective of she being married or unmarried however not stretching hands to help victim of adult marital rape. Thus in accordance with this case the legislature should bring appropriate changes in IPC and not forbid women’s right subsumed on the basis of marriage. 

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Article 21 of Indian constitution is given a wide interpretation by way of judicial activism following Maneka Gandhi v Union of India .The term ‘Right to life and personal liberty’ acknowledges the self-determination, bodily integrity, privacy including sexual privacy within itself. Thus article 21 has become the source of many substantive rights and procedural safeguards to the people. Its deprivation shall only be as per the relevant procedure prescribed in the relevant law, but the procedure has to be just, fair and reasonable. The Apex court, in Kartar Singh v state of Punjab held that the procedure contemplated by article 21  must be “right ,just and fair” and not arbitrary ,fanciful or oppressive. In order that the procedure be right, just ,fair ,it must conform to the principles of natural justice. Howsoever not criminalising marital rape solely on the rationale of archaic norm is erroneous and unlawful. In Bodhisattwa Gautam v Subhra Chakraborty, Apex court held that rape is a crime against the basic human rights and the violation of victim’s right to life and dignity, thus violating article 21. Thus there is no real justification in making distinction between the act committed by one’s spouse and a stranger. The Apex court in State of Maharashtra v. Madhkar Narayan opined that every women has the right to sexual privacy and no one can violate this right. Even women of easy virtue or a prostitute have right to say no to have sexual intercourse. This right has to be extended in a progressive way to married women and it is the obligation of state to enforce and protect it. Thus this judgement subsumed right to sexual privacy in article 21 which should not be denied to women on the basis of marriage. An another important purview of Article 21 is that it acknowledges everyone the right to live with human dignity as upheld in Francis Coralie Mulin v. Administrator, Union Territory of Delhi. This aspect clearly gets transgressed using the exception of Section 375 of IPC whenever the Indian women becomes devour of  her husband’s lust.

Justification of state in not deleting exception  to section 375 from the statute

The major justification is an irrefutable presumption of consent which is presumed to exist from the time the individual enter into marital relationship till the end. Marriage is considered to be a civil contract and consent to sexual activities is thought to be the defining element of this contract. But there is much difference between consent and passive submission as observed by the Bombay high court in Mathura case “Mere passive or helpless surrender of the body and its resignates to the other’s lust induced by fear or threats cannot be equated with the desire or will”. The author cites this case for understanding the difference between consent and passive submission as understood by the H.C despite it is overruled by Apex court.

If you want to read more about Mathura rape case Click Here

Law commission of India in its 172nd report on “Review of Rape laws” contented against criminalising marital rape claiming ‘it would lead to excessive interference within the institution of marriage’. Howsoever Justice J.S.Verma committee constituted for bringing out major  amendments in anti-rape laws of country against huge protests and public outcry after  December 2012 Nirbaya cas , took an altered stand. The committee published the ‘Report of the Committee on Amendments to Criminal Law’ (‘J.S. Verma Report’) in 2013. Of the major suggestions put forth in this report, one was that marital rape ought to be criminalised and exception to section 375 of IPC need to be deleted enunciating ‘law must specifically state that a marital relationship or any other similar relationship should not a valid defence for the accused, or relevant while determining whether consent existed or not and that it was not be considered a mitigating factor for the purpose of sentencing’. Further The Parliament Standing Committee on Home Affairs in its 167th Report on criminal law amendment bill, 2012 argued against criminalising marital rape stating the “entire family system will be under greater stress and the committee may perhaps be doing more injustice”. The committee reasoned that there is pre-existence of sufficient remedies through which the family could itself deal with such issues and that there underlies a  criminal law remedy under section 498A of the IPC and a civil remedy under Protection of women under domestic violence act ,2005. In 2015 the Ministry of Home Affairs in reply to a bill proposed by a Member of Parliament which aimed to criminalise marital rape stated that it “was considered that the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context”. They say the rationale behind  this as the “mind-set of the society to treat the marriage as sacrament. The same stand was taken by former Minister for women and child development Maneka Gandhi, further adding lack of education, literacy, poverty, social customs, values as reason for not criminalising inhuman act .This clearly pictures that exception 2 to section 375 is not just an accidental loophole but a clearly mandated intention of patriarchal  law framers. 

Conclusion

It is unjustifiable to not criminalise non-consensual sexual act under the umbrage of sacrosanct marriage. Marital tie between spouses doesn’t implicit  wife has given irrefutable consent for physical relations with her husband whenever he pleases nor that husband can have non-consensual sexual intercourse with his wife. As discussed earlier there is great plethora of resistance for criminalising marital rape from ruling government, legislators and from the apex court. The trouble being to protect the stabilisation of  the sacred institution of marriage and prevent potential threat for misuse against men. The agony lies when the Apex court of India which has very clearly condemned “Rape is a deathless shame & the gravest crime against the human dignity” gets blindfolded when the same act is perpetrated within the confines of marriage. Even the former Chief justice of India Deepak Mishra who stood as a pioneer in judicial activism via Shakti Vakini v UOI , Shafin Jahan v Ashokan K.M , Navtej singh Johar v UOI and in Sabarimala case permitting entry of women, etc. is reluctant to criminalise marital rape and has abdicated his duty. Nearly 70 countries have explicit laws criminalising marital rape. Thus it is the need of the hour to raise voice against this deeply ingrained religious and cultural stereotype of male chauvinistic society and to criminalize marital rape in India in accordance with globalization and changing social values to protect ,secure, empower dignity of women in its fullest sense and to safeguard the truest spirit of Indian constitution.

If you to read more about marital rape Click Here

If you want to read more about criminalisation of marital rape Click Here

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This article is written by Anirudh Vats, 2nd year student at Rajiv Gandhi National University of Law, Patiala. This article will provide a comprehensive list to get you interested in the literature of the law, and provide much needed respite from the dull statutes and journals a law student usually spends his time reading.

Introduction

As a law student, constantly reading statues, judgements and journals can get dull and tedious. One way to get away from this is to read legal literature. Many a book has been written on legal issues, but some stand out more than others.

It is also important to read the literature of law because while statutes and bare acts tell us what law is, literature tells us the soul of law. Literature interprets law and shed light on how law is experienced by the common man, and what the popular perception of law is.

To Kill a Mockingbird – Harper Lee

This is one of the classics in legal literature. A simple, endearing story about a father-daughter relationship, and how the practise of racism can derail a functioning society.

This book is genuinely a straight-forward story about growing up and living in a little Alabama town during the Great Depression. It has a warmth and effortlessness to it that I think resounds with a great deal of readers.

Notwithstanding how enjoyable reading the story is, this book is both amazingly and deceptively incredible in its discussion of race, resilience and human conventionality.

During his discourse to the jury at the climactic part in Harper Lee’s To Kill a Mockingbird, Atticus Finch shows a key conflict between the two powers in strife during the rape trial—the law and the code. Tom Robinson, he contends, has overstepped no law, however his informer Mayella Ewell has disregarded the code by making advances to a black man:

“She has committed no crime, she has merely broken a rigid and time-honored code of our society, a code so severe that whoever breaks it is hounded from our midst as unfit to live with. … No code mattered to her before she broke it, but it came crashing down on her afterward.”

The point Atticus contends is that Tom Robinson, a dark man accused of assaulting a white lady, must be made a decision on the basis of the law, yet he knows on account of his life in Maycomb society that the jury will pass judgment on the respondent as indicated by the code of that society.

Anonymous Lawyer – Jeremy Blachman

Anonymous Lawyer describes the encounters of a dynamic legal counselor who tries to move toward becoming the administrator of his firm. His desire for power has no limits and there is no price he won’t pay to accomplish his objectives. Needless to say, there are a few deterrents that he has to defeat on his approach to extreme achievement, including an unpleasant rival and a spouse who spends his cash as quick as he earns it. Not only is this book enjoyable to read and engaging, it provides a unique perspective towards the inner workings of the big law firms in the legal industry.

In this character Jeremy Blachman conveys a revealing, pertinent satire on the predator-like, soulless lawyer as we know them from popular culture. In so doing he elucidates some of the truth, along with good humour, and reminds us that the legal profession, like so many others, is riling from a century of evolution.

Bleak House – Charles Dickens

To many, Bleak House is Dickens’ most noteworthy novel, it is clearly one of the essayist’s most convincing and engaging works. It manages the subjects of misfortune, law, social class, mystery, and legacy, as well as the impact the procedure of law has on customers and their organizations. Despite the fact that questions of the law are often just a backdrop to the focal plot, the majority of the fundamental characters are associated with these cases somehow and endure shockingly subsequently.

Along with exploring emotional themes like the search for love and the importance of passion, it also explains the interface of people’s personal lives and their dealings with law.

It is a great insight into how law is actually experienced by people and how it shapes and controls their lives.

The Firm – John Grisham

The Firm is a legal thriller by John Grisham. It follows the story of Mitchell McDeere, a successful lawyer who was raised in the coal-mining region of rural Kentucky, and worked hard to pave his way out of menial labour and poverty. 

The story is one of the infamous legal thrillers by John Grisham in which a young, idealistic lawyer gets tied up with the mafia and tries to expose the link between the legal and the criminal world.

While it is essentially a thriller, designed to hook you to the story and make you finish it, it also exposes how sometimes administrative authorities and their corrupt practises allow crime and evil to persist in society.

It also paints an optimistic picture of an idealistic lawyer going against the system in search of higher principles of justice, and this trope can be a major source of inspiration for an aspiring lawyer.

The Trial – Franz Kafka

This Law book deals with Kafka’s vision of law. A law is expected to be fair and just. And if it is not, it is expected that we work in unison to overturn and rectify that law.

But Kafka’s vision is: Law is abstract and subjective. Law talks about equality and justice. But where in the world does law actually exhibit these values and principles?

Kafka’s views throughout this novel make it allegory as it does not point towards a specific law, but THE LAW in general. The novel also shows the corruption and lust of the judges in Courts.

The basic contention of Kafka is that there is a disjunction between the Idealism of Law and how it is actually manifested in society. He talks about the arbitrariness of law and how it can become a tool for oppression under totalitarian and even supposedly free societies.

This is easily one of the classics when it comes to legal literature and should be considered a rite of passage for anyone who cares about jurisprudence, legal idealism and the social realities under which law operates.

Kafka paints a bleak picture of how law is interpreted. The charges put on the protagonist of the story are not revealed to the reader or to him. The authorities prosecuting him are portrayed as totalitarian and inaccessible. 

This extreme situation is an extrapolation of the situations we experience in our supposed free societies and warns us about what we could turn into. It is somewhat dystopian, but also tries to capture the essence of law and give it an ideal to aspire to, not just in principle, but also in action.

Crime and Punishment – Fyodor Dostoevsky

Crime and Punishment centers around the psychological anguish and mental predicaments of Rodion Raskolnikov, a poor ex-student in Saint Petersburg who plans an arrangement to murder a corrupt pawnbroker for her cash. Prior to the slaughtering, Raskolnikov resolves that with the cash he could free himself from neediness and proceed to perform incredible benevolent deeds which will atone for the crime that he has committed. Be that as it may, when it is done he winds up riddled with perplexity, doubt, and devastated with the realization of what he has done. His ethical defenses deteriorate totally as he battles with blame and self-hatred and faces the consequences of his actions on his life.

Why should a lawyer read Crime and Punishment? 

Because it raises philosophical questions which a lawyer has to answer on a regular basis in his/her profession. Crime and punishment may not give you practical knowledge about your daily existence as a lawyer, but will arm you with the philosophical questions you need to tackle the moral and ethical problems and dilemmas any lawyer is bound to face in his profession.

It’s not a light read by any stretch of the imagination, in fact, the amount of introspection this book will make you do is incomparable, but it still remains a fantastic read and a pleasure every law aspirant should indulge in.

The Merchant of Venice – Shakespeare

Underneath the dramatic beauty of this play by Shakespeare, lies a message about legal culture, legal history, role of law and lawyers; interpretation of the law and legal writings. The play also brings out the popular conflict between the Christians and the Jews and brings out aspects of Jewish subjugation like never before.

This famous dialogue by Shylock represents the elements of Humanism found throughout the play.

“I am a Jew. Hath not a Jew eyes? Hath not a Jew hands, organs, dimensions, senses, affections, passions? Fed with the same food, hurt with the same weapons, subject to the same diseases, healed by the same means, warmed and cooled by the same winter and summer as a Christian is? If you prick us, do we not bleed? If you tickle us, do we not laugh?”

Snow Falling on Cedars – David Guterson

Set on the anecdotal San Piedro Island in the northern Puget Sound district of the province of Washington coast in 1954, the plot rotates around a homicide case in which Kabuo Miyamoto, a Japanese American, is blamed for murdering Carl Heine, a regarded angler in the affectionate network. A great part of the story is told in flashbacks clarifying the collaboration of the different characters over the earlier decades.

This novel by David Guterson has number of themes like the American dream, the experience of separation, bias and discrimination, cultural conflicts and love, linked fates, choices, snowstorm and the trees, earth and the seas, face reading and the moral judgement. This is a book which can take you on a journey which spans the whole emotional spectrum of a person. The concept of “guilt beyond a reasonable doubt” permeates the novel and upholds the principles of “innocent until proven guilty” and due process.

The Mahabharata and other mythological epics

This may seem like an unusual choice, but the Mahabharata along with other epics and mythological works like the Ramayana, the Manusmritis and the Upanishads are essential reads for a lawyer.

These epics have ethical and moral dilemmas that an individual faces, with themes like subjugation, war, internal conflicts etc. It contains debates about marriage, family, the role of teachers and sex. 

It explores the morality of war, and how even in situations of crisis, humans should maintain a code of conduct and a basic sense of morality.

They also elucidate the rich legal history of India. Most of our educational systems teach us the western conception of law, because that is the prevalent perspective in modern day legal systems, but we also must recognize that laws operated in India throughout history, and the earliest conceptions of systematic law in India far predate the ones in the West.

Therefore, not just for Indian law aspirants but especially for them, reading these epics is essential for your development as a lawyer.

Presumed Innocent – Scott Turow

Presumed Innocent, published in August 1987, is Scott Turow’s debut novel, which tells the story of a prosecutor charged with the murder of his colleague, an attractive and intelligent prosecutor, Carolyn Polhemus. It is told in the first person by the accused, Rožat “Rusty” Sabich. A movie adaptation starring Harrison Ford was released in 1990. 

This is a novel that will keep you on the edge of your seat throughout. The case itself, the legal questions, the prosecution and the verdict, every aspect of this book is rife with suspense and drama.

Read this book if a riveting story with a fascinating legal case at the centre of it interests you. And frankly, if that doesn’t interest you as a law aspirant, maybe you need to rethink your career choices.

Conclusion

This is in no way an exhaustive list, and probably misses out on many important legal novels you should read, but it does give you an introduction into the fascinating world of legal literature and instills an idea of reading Law for pleasure.

Happy Lawyering!

The post 10 Books Every Law Student Should Read (Literature) appeared first on iPleaders.

This article is written by Anirudh Vats, 2nd year student at Rajiv Gandhi National University of Law, Patiala.

Introduction

Man is by nature a traveller. We were meant to explore our surroundings and take in as much of the world as we can. But we have shut ourselves out from the world and live our lives in 8×8 rooms in front of screens all day.

Law School may seem like a boring, academic and difficult place to the outside eye, and it is in a lot of respects. But one lesser known perk of Law School is travelling. This may be due to travelling as a result of moot court competitions, debates etc. or attending conferences, seminars or even just a vacation.

Participating in Competitions (Debates, moot court competitions, extempore competitions etc.)

I’m going to start with a personal anecdote. One of my aims in my first year at Law School was to get over my fear of public speaking. I had debated in my school years but was always bogged down by anxiety before going up on stage. Three teams from our first year decided to go for the Ram Manohar Lohia National Law University Annual Parliamentary Debate Competition to Lucknow.

We booked our tickets and packed our bags, and the morning of the train journey finally dawned. The train ride was fun, as the 9 of us were joined by more students who were travelling to Lucknow for the debate and we had great conversations and talked over points to excel in the debate. 

On reaching Lucknow, we took an auto to the University, and our rickshaw driver gave us pointers to get around the city, where to eat, where to shop which places to see etc.

The debate went well for us, we won 3 rounds out of the 5 preliminary rounds, but due to our low margin of victory, we could not qualify for the semifinals, but I considered it a victory, since I finally was comfortable speaking on stage and articulating my thoughts on the fly.

But that was only part of the experience. On the first night, we went out for dinner to Tunday Kababi restaurant in old Lucknow, arguably the most famous eatery of the royal city and we were blown away by the sumptuous Kababs. What added to the experience were the narrow crowded streets full of diverse people, food and cultures.

We walked around for two hours in old Lucknow, fascinated by the richness of culture and diversity around.

The Second day we went sightseeing, saw the Bada Imambada, a colossal monument known for its maze, the Rumi Darwaza and also ate the most delicious Biryani at a well known local eatery.

The overall experience was truly memorable, as we got acquainted to an ancient city with a beautiful history and culture, and met a lot of new people and made lifelong friends. It was truly the best part of my first year in Law School.

Therefore, my advice is to take on as many opportunities as you can to go out to another city or university and participate in competitions, to not only develop your skills and excel, but to also gather experiences and make memories that will last you a lifetime.

These competitions usually last for 4 or 5 days, which gives you enough time to explore wherever it is you are travelling to, soak in the local culture and experience the inimitable feeling of getting to know a new city.

You can go to debate competitions, moot court competitions, research and content-writing based competitions as well competitions based on arbitration, mediation, negotiation etc. 

Moot Court Competitions are also a great option to travel in this way. First and foremost, they provide you with a lot of knowledge as to how one should conduct oneself in court and what your demeanour should be in front of a judge, along with practical skills to become a better litigator, once you graduate. Often, moots also have international rounds, where if you qualify you have to go abroad for the next round, which is a tremendous opportunity to travel and explore new countries and cultures.

These competitions are conducted throughout the year all over the country as well as abroad, and participating in them and travelling as a result of that can be a very enjoyable and memorable experience for a law student.

Travelling as a result of Internships

Another great way to travel is through opting for internships outside your home city or state. In my first year, I did an internship at a Human Rights Organization based in Mumbai, and had a wonderful experience. 

This experience can be even more fulfilling because you get to take in and experience a new city for at least a whole month. My one month in Mumbai was far from easy, getting around the traffic and the hustle of a huge city like Mumbai was tiresome and draining, but it is an experience I cherish anyway.

I made a lot of friends at my internship who will by my friends for life and we keep in touch till date. I also got to learn a lot about Human Rights, their importance in contemporary times as well as the ways in which they are violated in our country.

Therefore, I would advise everyone to get involved in internships outside their native city or the place in which their university is and travel to new cities, have new experiences with diverse people.

Interning at State Human Rights Commissions, the High Courts of different states, or even big firms based in different cities are great options to intern at useful places and travel and experience new cities as a result. 

The best part is, in 5 years, you will get the opportunity to intern at least 10 times, which means there will be ample opportunity to travel to new places.

A lot of learning in life is gained from travelling to new places and having new experiences and internships are a great way to achieve that because they combine academic learning with the philosophical teachings you imbibe by gaining a new experience by travelling.

Attending Seminars and Conferences

This is another great way to travel, learn and further your career in the legal field. All around the country, at any point of time, there are so many lectures, seminars, conferences taking place, where legal experts, lawyers, diplomats, administrators etc. come to teach students about essential subjects a lawyer should know about and share their secrets of success in the field.

Attending these programs can be really beneficial, as they not only inspire a young person to excel and provide him/her with role models, but they also arm you with the practical knowledge and expertise you will need when you enter the workforce and start navigating the complex world of Law.

These seminars are a great way to meet new people with similar interests as well. You come across people who possibly have similar aspirations and outlook towards life, and you might just end up making new friends who can help you along in your journey towards success.

Networking is essential to get around in this field of law, which is already overcrowded and full of obstacles and hardship. These seminars and conferences also help you network well and put yourself out there and showcase your talent or expertise among peers from whom you can extract work or get a job in the future. It may be talking to your contemporaries and building professional relationships, or it may be advertising through your resume or your LinkedIn profile. 

Therefore attending lectures, seminars or conferences can be a great way to network, travel, experience and learn and could be a big help in your life as a lawyer.

Attending Summer Schools and Exchange programmes

One of my good friends in college recently attended the Summer School at Leiden University in the Netherlands, and it was a life-changing experience for him.

He opted for an International Law course which would last a fortnight and include lectures, interactive sessions, practical teachings and research and writing.

The two weeks he spent there were immensely beneficial for him as he learnt a lot about international law, an area in which he wants to ultimately establish his career in, and gained a lot of exposure.

His class consisted of students from all around the world, who had unique perspectives about the world and the law. He had the opportunity to interact with people from diverse backgrounds and learn from prolific professors of law from all around the world.

Also, attending these programmes reflect very well on your CV, as it shows that you have experience in the subject from the very best institutions in the world.

Most foreign universities offer summer schools and exchange programs, even iconic universities like Oxford and Cambridge.

This can also help you in choosing the university you want to do your masters in and where you want to work after your studies are over.

The only downside, however, is the fact that often these programs cost a lot of money, and that is a big deterrent for a lot of students.

Taking time off and vacationing

Law school can be a stressful place. The academic year is crowded with submissions, assignments, exams, moot court competitions coupled with the social stress a university exerts on an individual. This can take a toll on a young student. Therefore it becomes important to take a few days off sometimes to regain your strength and relax your mind and body.

My university is in Patiala, which is actually very close to Himachal Pradesh. Often on long weekends, we just get on a bus to Chandigarh and two hours later, we are driving up the Himalayas, soaking in the fresh air and the lush green mountains.

The transport is really cheap if you travel through the state bus transport and even the stays are inexpensive because we stay in hostels where a lot of travellers bunk in search of frugal travelling.

A weekend in the hills can be the perfect respite from the stressful routine of law school, and we experience the hills without even missing a class. 

Search for places close by to your university, where you can switch off for a few days, reconnect with nature, slow down your life and experience the beauty that is inherent in travelling.

Most universities also organize trips to nearby tourist spots, so keep on the lookout for that.

My university routinely organizes trips to famous hill stations which also includes famous treks like the Triund trek in Mcleodganj.

A trek can be a great way to have a productive, fulfilling and satisfying vacation, where you not only travel, but also test your body and mind and rekindle your humility towards nature.

Conclusion

Travelling is an essential part of life and should not be considered a luxury. People should find ways of incorporating regular travelling in their everyday lives, and law school provides you with the perfect opportunity to combine your wanderlust with your professional life. Students can be productive, constantly learning new things, and evolving as people while travelling to different cities and experiencing new things.

Law school can be a truly enriching place when combined with travelling and diverse experiences. Therefore, students should strive to find opportunities to get out of their native cities and explore their surroundings and in the process discover themselves as well.

Travelling is known to trigger a spiritual side in people and help them find their essence, and students have a lot of opportunity to travel.

So, in conclusion we listed and described how students can use their time in law school to travel, whether it be by participating in competitions, doing internships in different cities attending seminars and conferences, attending summer schools or exchange programs or even just good old vacationing.

These experiences can shape you not just as a lawyer, but also as an evolving person, and will help you in making memories and friends that will last you a lifetime.

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This article is written by Anirudh Vats, 2nd year student at Rajiv Gandhi National University of Law, Patiala. This article will discuss the meaning and definitions of Legal Positivism, trace its development, lay out the various theses explaining it, debate its interface with Natural Law and provide a critical analysis.

Introduction

Legal Positivism is a jurisprudential approach to interpreting law in positive terms. It seeks to separate law from its ethical and modern concerns and focuses more on its structure and origin. Some of the main influential thinkers of this school were John Austin, Jeremy Bentham and Thomas Hobbes.

Meaning and Definition

Legal Positivism has these basic tenets:

• Law is a command by a human sovereign.
• Law is separate from morality and has no identifiable ethical concerns.
• Law should be studied positively i.e. “What is law?” and not normatively i.e. “What should law be?”
• Study of Legal concepts is separate from historical or sociological analysis.
• Legal system is self sufficient, to make decisions, it does not need to have social concerns.
• Precedence of facts over moral judgements.

Legal Positivism can be defined as an approach to understanding and interpreting law rooted in jurisprudence which seeks to separate law as a separate and independent field of study which is divorced from ethical, moral or social concerns.

Development and Influence

Empiricism

Empiricism is often seen as the antecedent to Legal Positivism. Empiricism is based on the notion that the validity of facts comes from sense experience. It denies the existence of any phenomena which cannot be verified with the five senses. 

Empiricism regarded metaphysics as speculative and anything beyond sense experience as uncertain and inaccurate. Empiricism brought about a comprehensive methodology to understand the world in positive terms, and Legal Positivism was a result of this outlook.

Thomas Hobbes 

Thomas Hobbes was the first to lay out concretely the positive philosophy of Law. HIs legal philosophy was based on the supremacy of Sovereign power. According to him, law, however arbitrary or unjust, is law if the Sovereign has commanded so.

He was one of the foremost modern thinkers to give the idea of a supreme sovereign whose authority is unquestionable and absolute, and who is the sole lawgiver in a given state.

Jeremy Bentham

Bentham was perhaps the most prominent British Legal Positivist who laid down the groundwork of Positivist legal philosophy with the Sovereign at its helm. He discusses two categories of people concerned with the legal system.

Expositors– These are people who read explain the law and do not pass any moral or ethical judgement on it.

Censors– These are people who do not separate law from morality and criticize law for on the basis of a sociological or historical interpretation of it

For Bentham, Censors were not subjects of ‘real law’ and remained outside the domain of law. 

Law was not meant to be discussed, criticized or debated but rather explained and obeyed.

John Austin

John Austin was another influential thinker of this school of thought and defined Law as the “Command of the Sovereign”. He wanted to establish law as a positive science at par with the natural sciences. He wanted to dissociate law from all subjective elements be it ethics, social responsibility or morality.

These thinkers helped develop an understanding of Legal Positivism and laid the groundwork for establishing Law as an objective science. They are widely cited, referred to, criticized, by contemporary thinkers, but everyone gives credit to these great thinkers who laid out Law as a serious science at par with other academic fields.

Theses related to Legal Positivism

Pedigree Thesis

The pedigree thesis asserts that legal enforceability and legitimacy is due to certain social facts. This thesis was propounded by the Command theory of Austin. Austin says that the principal distinguishing feature of a legal system is the presence of a sovereign who is habitually obeyed by most people in the society, but not in the habit of obeying any determinate human superior.

For him, a command backed by sanction is all that law is limited to. Any external analysis of law is speculative and lies outside the domain of ‘Real Law’.

But this thesis is subject to a lot of criticism. Law does not always arise from a political superior. It has existed in society without the modern conception of the state and even when people have no sovereign over them. Customs and traditions were the tools people used for social control and cooperative, civilized living.

According to Austin, the primary function of state is to use force to impose sanctions. But modern democracies have governments that serve the people and are elected by them to ensure their safety and prosperity, not use force on them. The force used by the state is not the power of the state but the willingness of the people to obey the same.

Austin’s ideas are not applicable to International law because it has no Sovereign. International law is based on the principles of International recognition, cooperation, and diplomacy.

Modern democracies are found on a constitution, in which rests the source of all the political powers of the state. Therefore, the true Sovereign in a democracy are the people, whose rights the constitution upholds.

Separability Thesis

The second thesis containing the establishment of legal positivism is the separability thesis. This understanding suggests that any reference to moral virtue or ideals in characterizing the related ideas of law, legal legitimacy, and legal framework is conflicting with the separability thesis. In its most broad structure, the separability thesis attests that law and morality are theoretically separate. This unique definition can be interpreted in various ways. For instance, Klaus Faber (1996) deciphers it as making a meta-level case that the meaning of law must be totally free of ethical concerns. 

This thesis also can be criticized along similar lines of the Pedigree thesis. Law cannot be separated from morality because law directly affects the development of a socio-political paradigm. People’s lives are directly affected by laws and they interact with the dictates of a sovereign superior on a regular basis. 

History is full of examples of arbitrary legislation leading to widespread subjugation and oppression of people. When we consider a political sovereign as supreme, there are no checks and balances against him/her becoming tyrannical. Be it Nazi Germany or the Soviet Union, whenever power is concentrated and unquestionable, and law are not headed towards a moral direction, people are oppressed, tyrannized and even systematically murdered.

Discretion Thesis

Ronald Dworkin explained this thesis in this way:

“The set of these valid legal rules is exhaustive of ‘the law’, so that if someone’s case is not clearly covered by such a rule then that case cannot be decided by ‘applying the law.’ It must be decided by some official, like a judge, ‘exercising his discretion,’ which means reaching beyond the law for some other sort of standard to guide him in manufacturing a fresh legal rule or supplementing an old one (Dworkin 1977, p. 17).”

This thesis asserts that in the practise of law, there will inevitably arise a situation in which an issue would lie outside the established principles of law and there would be no law to govern the said issue. In this case, the discretion thesis asserts that it is up to the judges, the jurists and the legislators to form a new rule to decide on said problem, which would involve leaving the domain of law and exercising their discretion of commanding law.

The discretion thesis is not a central tenet of Legal Positivism but is still considered in consonance with it.

Positivism and Legal Principles

Dorkin was the most prominent proponent of Legal Principles being a part of law. For him, rules were implemented in an all-or-nothing manner. They were to be applied without modification and questioning. 

But judges, while deciding cases, cannot apply rules without seeking guidance from certain legal principles which are conventionally considered extralegal by positivists. For Dorkin, the actual cases were too ambiguous and full of detail which cannot be adequately captured in rules. To decide on a matter judiciously, one needs guidance from eternal principles which help the judges decide.

For him, these principles were not extralegal, and should be considered a part of law.

For example, in the case of Riggs v. Palmer, a murderer defended himself on the grounds that he had the will of the victim. The court found itself in search for a rule regarding such an assertion, but could not find any. The court relied on the principle that such a heinous crime should not go unpunished, regardless of the will of the victim.

Such a scenario, in Dorkin’s viewpoint shows the inadequacy of rules and why legal principles should be formalized and considered an integral part of the field of Law.

Dorkin’s viewpoint was met with much opposition from the positivists, who thought that law could not consist of anything apart from objective, definite rules and principles were primarily subjective and metaphysical in nature, which was contrary to their assertion that law is an absolute science.

According to Dworkin, a legal principle is to be considered: (1) the principle coheres with existing legal materials; and (2) the principle is the most morally attractive standard that satisfies (1). The correct legal principle is the one that makes the law the moral best it can be. 

Thus, Dworkin concludes, “if we treat principles as law we must reject the positivists’ first tenet, that the law of a community is distinguished from other social standards by some test in the form of a master rule” (Dworkin 1977, p. 44).”

The validity of Legal Principles is considered one of the classic criticisms of Legal Positivism and was one of the first steps towards a broader, more socially relevant understanding of law, and a move away from the arbitrariness of the positivists.

Fuller’s internal morality of Law

In his seminal work, The Morality of Law, Lon L. Fuller asserts that law is subject to an internal morality consisting of eight principles:

• The rules must be expressed in general terms;
• The rules must be publicly promulgated;
• The rules must be (for the most part) prospective in effect;
• The rules must be expressed in understandable terms;
• The rules must be consistent with one another;
• The rules must not require conduct beyond the powers of the affected parties;
• The rules must not be changed so frequently that the subject cannot rely on them; and
• The rules must be administered in a manner consistent with their wording 
• (Fuller 1964, p. 39).

In Fuller’s view, law consists of an internal morality which is essential for its functioning. He mentions 8 guiding principles of which if any law is ignorant, it should not be considered law. According to him, to achieve the purpose of law, which is to maintain social order and stability, law has to be held subject to a universal notion of morality, which is represented in his 8 principles.

Conclusion

This article attempted to lay out the basic tenets of the Legal Positivism movement, trace its developmental roots and influential thinkers and list the classic criticisms of the movement.

From this analysis, it is clear that the Positivist movement is no longer progressing, and its arguments have been largely refuted by contemporary philosophers, accelerated by the advent of modern democracy and constitutionalism.

But the legacy of the movement still lives on. Positivism laid out the basic notions which are still prevalent in modern legal systems. Even in modern democracies, we see the flow of law emanating from political superiors to the people, we also see the importance of statutes, rules and regulations along with the discretion of jurists.

The Separability thesis, however, is more or less proved to be wrong. Our struggles throughout history have proven that law needs to have an ethical direction for it to remain just, fair and not devolve into tyranny.

Ethical concerns are now central to any promulgation, rule or legislation. Laws everywhere are becoming less arbitrary, more inclined towards ensuring freedom and liberty. 

The focus of legal institutions is shifting from being a system of commands and sanctions to a system which aims to ensure prosperity in the people it governs.

It can be concluded that Legal Positivism provides a unique perspective towards understanding our legal systems, and while it is not without its flaws, it still holds a lot of academic importance.

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This article is written by Anirudh Vats, 2nd year student at Rajiv Gandhi National University of Law, Patiala. This article will first discuss the various definitions of customs given by different thinkers, then trace the origins of Customs as a source of law. It will also lay out the types of customs, the requisites of a valid custom and different theories to approach the understanding of Customs.

Introduction

Customs are the earliest sources of law and form the basis of the English Common Law system as we see it today. They can be described as cultural practises which have become definite and backed by obligation or sanction just by virtue of widespread practise and continue presence.

Definitions

John Salmond

“Custom is the embodiment of those principles which have commended themselves to the national conscience as principles of justice and public utility.”

For Salmond, a valid custom has absolute legal authority which as the force of law in itself. He divides Customs into two:

1. General Custom – A general custom has the force of law throughout the territory of a state. For example, the Common Law in England.
2. Local Custom – The local custom are those which operate have the force of law in a particular locality. The authority of a local custom is higher than that of general custom.

C.K. Allen

C.K. Allen defines custom as “legal and social phenomenon growing up by forces inherent in society—forces partly of reason and necessity, and partly of suggestion and imitation.”

J.L. Austin

“Custom is a rule of conduct which the governed observe spontaneous and not in pursuance of law settled by a political superior.”

Austin’s ideas were often seen in contravention to customary law because for him, the political superior was the only source of law and customs were not ‘real law’. They needed the assent and command of the Sovereign to be considered law.

Robert Keeton

“Customary law may be defined as those rules of human action established by usage and regarded as legally binding by those to whom the rules are applicable, which are adopted by the courts and applied as source of law, because they are generally followed by the political society as a whole, or by some part of it.”

Origin of Customs

In primitive societies, there was no external authority over people, yet people organized themselves in cohesive groups with a mechanism for fairness and liberty.

People developed rules and regulations through spontaneous reaction to their circumstances as well as a coordinated conscious decision to arrive at them.

Eventually, people started recognizing traditions, practises, rituals which were prevalent in a certain territory or group, and saw how they formed a systematized approach to social regulation.

In Britain, Jurists and legislators started studying these patterns, recording their prevalence, usage and applicability. These came to be known as customs, which were then formalized and put into legislation in the Common Law of England.

There are two philosophers with alternate views as to how customs originate.

Sir Henry Maine

According to Sir Henry Maine, “Custom is conception posterior to that of Themistes or judgments.” Themistes were judicial awards which were dictated to the King by the Greek goddess of justice. He explained, “Themistes, Themises, the plural of Themis, are the awards themselves, divinely dictated to the judges.

He described the development in distinct steps. These are:

1. Law by rulers under divine inspiration

At the first stage, law was given by rulers who sought divine sanction for their commands. They were believed to be messengers of God, laying out the law for the people.

2. Developing of Customs

Gradually, as people get into the habit of following the dictates of their rulers, they develop into customary law, and becomes a part of people’s daily living.

3. Knowledge of law in the hands of priests

The knowledge of customs and practises is then studied by a minority, primarily religious people. This is possible due to the weakening of the power of the rulers over people. Priests study customs, recognize patterns, understand their relevance and formalize customs.

4. Codification

The last and final stage is that of codifying these laws. Priests study customs    meticulously and put it on paper. This code is then promoted and spread to newer areas  and territories.

T. Holland

According to Holland, “custom is a generally observed course of conduct”.

Holland says that custom originated in the conscious choice by the people of the more convenient of the two acts. 

For Holland, customs grow through imitation. In early political societies the king or the head of the society did not make laws but administered justice according to the popular notions of right and wrong, whichever were enshrined in the course of conduct pursued by people- in general. What was accepted by the generality of the people and embodied in their customs was deemed to be right and which was disapproved by them or not embodied in their customs was deemed to be wrong.

Types of Customs

There are two broad categories into which customs can be divided. These are customs without binding obligation and customs with legally binding obligations.

Customs without binding obligation

These customs are not enforceable by law, but are still prevalent in society and have societal sanctions attached to them.

For example, every society has some customs about how to dress, how to address elders or how to conduct marriages etc. These are not legally binding but can still have powerful sanctions attached to them. For example, if a person comes to a funeral wearing colourful clothes, he will be ostracized and alienated by others around him.

These customs, although not binding, hold tremendous importance in society and must be followed uniformly for efficient functioning of society. 

Every one of these customs are pursued because of the fear that non-recognition of such customs may lead them to be socially outcasted. Such customs are non-authoritative as in they are not mandatory to pursue. Individuals follow them due to the social pressure of society. At the point when a custom of this sort is abused, society typically responds by demonstrating social dismay or ostracization; however it has no sanction in the true sense of the term. Such customs can be called as ‘Social Customs’.

Customs with binding obligations

In this classification those customs are discussed which in an objective and stringent sense are viewed as the particular obligations and commitments of men. Such customs may direct the commitment of marriage and the upbringing of children,the transmission of property etc.

Such customs don’t relate to the circle of social conventions, outward propriety, or style; rather, they are worried about the genuine business of society, the work that must be practiced in request to verify and ensure necessary conditions for community living.

Customs under this category have sanctions which are more stringent than the previous category. If these customs gain widespread acceptance, they acquire legal character. On violation of these customs, adequate penalty is incurred by the violator as per the statute that governs the particular custom.

These can be further divided into Legal Customs and Conventional customs.

Legal Customs

The sanction of a legal custom is certain and absolute. It is negative in its operation, in the sense that, if the custom is not followed, certain desired consequences would not take place. For example, if you do not follow the custom of marriage properly, that marriage will be considered void and any children born out of that marriage will be considered illegitimate.

Legal custom is operative per se regardless of any agreement of participant parties contrary to the custom. They are unconditional and absolute in their function and take up the form of law.

They are obligatory rules of conduct on not based on faith or convention.

According to Salmond, Legal Customs have legal obligation in itself or proprio vigore. He divides legal customs further into General and Local Customs which have been discussed earlier.

Conventional Customs

According to Salmond, ‘A conventional custom is one whose authority is conditional on its acceptance and incorporation in agreement between the parties to be bound by it.’

A conventional custom or usage is a practice which comes into practise due to it being followed for a long period of time and arising out of a contract between the parties; it does not have any legal character in itself. Thus, a usage or conventional custom is an established norm which is legally enforceable, not because of any legal authority independently possessed by it, but because it has been expressly or impliedly incorporated in a contract between the parties concerned.

Conventional custom may, again, be divided into two types—General Conventional

Customs and Local Conventional Customs. General Conventional Customs are extensively practiced throughout a particular territory; whereas Local Conventional Customs are limited to a particular place or to a particular trade or transaction.

Requisites of a Valid Custom

Reasonability

A custom must be in conformity with basic morality, the prevailing understanding of justice, health and public policy. If it is not reasonable in its origin or practise, it cannot be considered a valid custom. For example, Sati was an accepted custom once, but with the modern moral understanding, it is reprehensible, and therefore it cannot be considered a custom today.

This, however, does not mean that every custom must be perfect in its morality or ethical concerns, or contain eternal wisdom, it just needs to be relevant to contemporary times, useful and capable of being legislated on.

Conformity with Statute Law

No custom can be in contravention to the existing law of the land. Any practise, however widespread and accepted, if found in violation of any statute of a said territory cannot be considered a custom.

Certainty

It must be clear and unambiguous as to what the custom is and how it is practised. A custom can only hold up in a court of law when it is not indefinite or uncertain. It needs to be absolute and objective in theory and in action.

Consistency

A custom must be consistent with the general principles of Law which form the basis of every law or statue which exists. These principles form the basis of ideas like Justice, fairness and liberty, and every custom must be in consonance with these.

Antiquity

It is necessary for the custom to have been followed for time immemorial. The practise must be so ingrained in society, that legislating it seems like the only natural step. Recent or modern practises cannot be custom until they become firmly established in society.

Continuity

A custom must not be interrupted or its practise must not be sparse. It needs to be continuing for time immemorial without any interruption.

Must be peaceful in its practise

Any custom advocating or calling for violence, implicitly or explicitly, `cannot be considered a custom.

Must not be opposed to Public Policy

Whatever the public policy may be of the state the custom is operating in, has to be conformed to.

Must be General or Universal 

According to Carter,“Custom is effectual only when it is universal or nearly so. In the absence of unanimity of opinion, custom becomes powerless, or rather does not exist.” 

Theories of Customs

Historical Theory

As indicated by this school, custom contains its own legitimacy, since it would not exist at all except if some profound needs of the general population or some local nature of societal needs offer validity to it. 

The development of law does not depend upon the subjective will of any person. It because of the knowledge of the communities and civilizations that have existed throughout history.

Custom is achieved from the common conscience of the general population. It springs from an innate feeling of right. Law has its reality in the general will of the people. Savigny calls it “Volkgeist”.

Analytical Theory

Austin was the main proponent of the Analytical theory. For him, Customs did not have any legally binding force in themselves. Their legal character is always subject to the assent of the Sovereign. For him, customs were merely reflection of law, and were not ‘real law’. Customs need the modification and the approval of judges, jurists or rulers for them to have any binding force on people. This is in consonance with his idea that all law is the ‘Will of the Sovereign”.

Conclusion

Therefore, it can be seen that Customs are a very important source of law, which have their historical roots in the earliest and most primitive of societies, and still hold relevance. Society is constantly in the process of establishing newer practices which might in due time turn into usages or customs.

We depend on customs and are governed by them, knowingly or not. The English Common law can be interpreted as a formalization of existing customs, and therein lies the importance of having the right customs in society.

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This article is written by Advocate Chakradhar N who has just completed the Certificate Course in Real Estate Laws from Lawsikho.com. Here he discusses Offenses under RERA.

About RERA

RERA stands for Real Estate Regulatory Act, 2016 it intends to protect the interests of home buyers and enhance transparency in the real estate sector. This Act came into force on 1st May 2016 with 59 of 92 sections were notified on May 1, 2016, and the remaining provisions came into force from May 1, 2017. Under the Act, the central and state governments, are required to notify their own rules under the Act, six months, on the basis of the model rules framed under the central Act. The aims of the Act are-

• Protect the home buyers from unscrupulous builders.
• Increase investment in the real estate industry.
• To regulate the real estate sector of India.
• Impose penalties on errant builders.
• Bring transparency and accountability in the real estate industry.
• Stabilize housing prices. It will lead to enhanced activity in the sector, leading to more housing units being supplied to the market.

Non-compliance with the Act: RERA 2016 by Promoter, Real Estate Agent & Allottee recommends imprisonment for a term which may extend up to three years, or fine which may extend up to 10% of the estimated cost of the real estate project or both.

However, most states have added a clause of compounding of offence to avoid imprisonment. 

Following are the Offences by Promoter, Real Estate Agent, Allottee and corresponding penalties for compounding those offences are-

Offences by promoter

Promoter offences like non-registration and providing false or contravenes while registration of real estate project. Also, for violating Appellate Tribunal orders would attract penalty and imprisonment.

Below are the few Offences and Penalties described in the Act

Punishment for non-registration under section 3 is defined in Sec 59 of the Act 

Provisions under Section 59

(1) Any promoter contravenes the provisions of section 3, he shall be liable to a penalty which may extend up to 10% of the estimated cost of the real estate project as determined by the Authority.

(2) Any promoter does not comply with the orders, decisions or directions issued under sub-section (1) or continues to violate the provisions of section 3, he shall be punishable with imprisonment for a term which may extend up to 3 years or with fine which may extend up to a further ten per cent. of the estimated cost of the real estate project, or with both.

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Punishments for violating the orders of Appellate Tribunal by the promoter is defined in Section 64

Provision under Section 64

If any promoter, who fails to follow or breaches any of the orders, verdicts or instructions of the Appellate Tribunal, he shall be punishable with an imprisonment for a term which may extend up to 3 years or with fine for every day during which such default continues, which may cumulatively extend up to 10% of the estimated cost of the real estate project, or with both.

Offences by the Real Estate Agent 

Offences like failure to comply with orders of Appellate Tribunal will be punishable with a penalty and even imprisonment.

Following is the Offences and punishments described in the Act for Real Estate Agents

Punishment for failure to comply with orders of Appellate Tribunal by a Real Estate Agent is defined under Section 66

If any real estate agent fails to comply with or contravenes the orders or directions of the Appellate Authority, then he shall be punishable with imprisonment up to 1 year or fine for every day during which default continues, which may cumulatively extend up to 10% of estimated cost of the property as determined by the authority, or with both.

Offences by Allottees

Penalty and imprisonment will be levied upon allottees for contravention of any order by the tribunal.

Punishment for contravention of the orders or direction of the Appellate Tribunal is defined under Section 68

Any allottee who disobeys the verdict or instructions of the Appellate Tribunal will be Imprisoned up to 1 year with or without fine for every day during which such defaults continue, which may cumulatively extend up to 5% of the apartments or building cost.

Penalty for the period during which defaults continues which may cumulatively extend up to 5% of the apartment or building cost is defined in Sec 67

Compounding of offence

Any person who is punishable under the act can seek compounding of the offence by the court, it can be either before or after the proceedings. The act permits the compounding depends upon terms and conditions and payment of fee is mentioned in the rules framed. Also, the amount to be charged on compounding should not exceed the maximum amount for that offence.     

Compounding of offences under RERA Act, 2016

As per section 70 of the Act, any person who is punishable with imprisonment can be compounded subject to the terms and conditions which is defined by the appropriate Government. Also, the fine payable for imprisonment needs to be specified by the said rules, that should not be more than the maximum fine payable for the offence. 

A list of compoundable offences is provided below

Offences and amount of fee payable for compounding

(1) The below table shows the offences and the corresponding amount of fine payable at the court for compounding of offence

The above-specified rates are applicable if the appropriate Government might have notified in the official gazette.

(2) Once the payment was done as mentioned in the above table, then any person in custody for that offence should be set at liberty and no further proceedings continued against such person in any court.

(3) After acceptance of the amount for compounding of offence as mentioned in the table, then the Court shall be deemed to amount to an acquittal within the meaning of section 300 of the Code of Criminal Procedure, 1973.

(4) Any person (promoter, allottee or real estate agent) who compounded the offence should follow with the orders of the regulatory authority or the Appellate Tribunal within the period specified by the court, i.e. not more than 30 days from the date of compounding of the offence.

The rules framed by Delhi, Tamil Nadu and Karnataka provide for compounding of various offences punishable with imprisonment for an amount specified therein.

In Case of Promoter

An offence punishable with imprisonment can be compounded by paying 10% of the estimated cost of the real estate project;

In Case of an Agent

An offence punishable with imprisonment can be compounded by paying 10% of the estimated cost of the plot, apartment, or building as the case may be of the real estate project for which the sale or purchase has been facilitated;

In Case of an Allottee

An offence punishable with imprisonment can be compounded by paying 10% of the estimated cost of the plot, apartment, or building as the case may be.

However, the rules framed by Maharashtra, Haryana, Gujarat and Uttar Pradesh differ from the rules framed by the above States in relation to the compounding of offences, which are as follows:

Maharashtra and Haryana

In Case of Promoter

An offence punishable with imprisonment can be compounded by paying 5% (in case of violation of the order of the Authority) and 5% (in case of violation of an order of the Appellate Tribunal) of the estimated cost of the real estate project, which may extend up to 10%.

In Case of an Agent

An offence punishable with imprisonment can be compounded by paying 5% of the estimated cost of the plot, apartment or building, as the case may be, of the real estate project, for which the sale or purchase has been facilitated, which may extend up to 10%.

In case of an Allottee

An offence punishable with imprisonment can be compounded by paying 5% of the estimated cost of the plot, apartment or building, as the case may be, which may extend up to 10%.

Gujarat

In Case of Promoter

An offence punishable with imprisonment can be compounded by paying 5% in case of violation of the order of the Authority and in case of violation of an order of the Appellate Tribunal.

In Case of an Agent

An offence punishable with imprisonment can be compounded by paying 5% of the estimated cost of the plot, apartment or building, as the case may be, of the real estate project, for which the sale or purchase has been facilitated.

In Case of Allottee

An offence punishable with imprisonment can be compounded by paying 5% of the estimated cost of the plot, apartment or building, as the case may be.

Uttar Pradesh

In Case of Promoter

An offence punishable with imprisonment can be compounded by paying money proportionate to the term of imprisonment subject to a maximum of 10% of the estimated cost of the real estate project for three years.

In Case of an Agent

An offence punishable with imprisonment can be compounded by paying money proportionate to the term of imprisonment subject to a maximum of 10% of the estimated cost of the plot, apartment or building for one year.

In Case of Allottee

An offence punishable with imprisonment can be compounded by paying money proportionate to the term of imprisonment subject to a maximum of 10% of the estimated cost of the plot, apartment or building for one year.

Whoever seeks the compounding should comply with the orders of the Authority or Appellate Tribunal within 30 days from the date of compounding of the offence.

On payment of the sum of the specified money and after compliance of the orders of the Authority or the Appellate Tribunal, any person in custody in connection with that offence shall be set liberty and no proceedings shall be instituted or continued against such person in any court for that offence.

The acceptance of the sum of the money for compounding an offence by the court shall be deemed to be an acquittal within the meaning of section 300 of the Code of Criminal Procedure, 1973.

Penalty Fund Account

If the authority is established by the central government, then penalties recovered under the Act are to be deposited in the Consolidated Fund of India. If the authority is established by the state, it must be deposited in the state account. Although, grants received by the authority will be credited to the Real Estate Regulatory Fund.

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

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This article is written by Nidhi Chhillar, a student of Vivekananda Institute of Professional Studies, GGSIPU. In this article, she has discussed Cyber Pornography and legal provisions related to Cyber Pornography in detail. She has discussed the liability of service providers, problems faced in the regulation of Cyber Pornography and has provided suggestions for regulating Cyber Pornography.

Introduction

Cyber Pornography has become a global problem. The government has decided to ban 827 websites that possess pornographic content following the order of Uttarakhand High Court. However, the people especially the youngsters, are so addicted to cyberporn that they try different means like VPN, DNS Server Change, or downloading Opera Mini that has inbuilt VPN activation, to view cyberporn.

Can a person be made liable for watching porn on websites that are banned? Can the service providers be made responsible for publishing pornographic content? Are the laws sufficient to regulate cyberporn? 

Pornography

The word pornography is derived from two Greek roots, i.e. “Porne and graphos”. The word “porne” means prostitute, harlot or female captive, and the word “graphos” means “writing about” or “description of”. In a legal sense, Pornography means “obscenity”. Pornographic includes any video, pictures or movies that contain sexually explicit acts that are considered indecent by the public.

The term pornography is used to the depiction of the act rather than the act itself, and therefore, it does not include live exhibitions like sex shows and striptease. Those who favour or patronise pornography often contend that it is the artistic exhibition of one’s body while on the other hand, the people who criticize pornography calls it immoral and against their religious sentiments.

In the modern era, the concept of pornography has been widened. Pornography has now been categorized into softcore pornography and hardcore pornography. The only point of difference between softcore pornography and hardcore pornography is that softcore pornography does not depict penetration, while hardcore pornography depicts penetration. 

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Cyber Pornography

Cyber Pornography means the publishing, distributing or designing pornography by using cyberspace. The technology has its pros and cons and cyber pornography is the result of the advancement of technology. With the easy availability of the Internet, people can now view thousands of porn on their mobile or laptops, they even have access to upload pornographic content online. 

Obscenity and Pornography

Obscenity and Pornography are often used synonymously. But it should be noted that obscenity is a wider concept than pornography. Obscenity means anything which is immoral and against the sentiments of people, whereas pornography refers to the act of causing sexual excitement through films, pictures or books. Thus, pornography is just a part of obscenity. 

Porn Content

• 30% of Internet content is porn. One can get abundant access to pornographic content on the dark web. Dark web even contains the child pornographic contents. It is worthy to note that only 10% of the total content is available on the surface web, the rest of the content is available on the dark work and the deep web.
• In the year 2005, there were more than 2 billion searches for porn.
• Almost 20% of the mobile phone searches are for porn.
• 28,258 users watch porn every second.
• 90% of boys and 60% of girls watch porn by the time they turn 18.

Porn Revenue

• The pornography industry is the fastest growing industry. It is estimated to be worth approximately $60 billion in the year 2007.
• The U.S. is the world leader in the pornography industry. It spends $12 billion on porn followed by Australia, which generates $1.5 billion revenue from porn sites.

Porn rise

• Easy access to the Internet has helped the people to view pornographic content without compromising their privacy and without disclosing their identity to anyone.
• It has removed the hurdles of the conventional form of pornography, where people used to buy the pornographic content in printed form, the people nowadays, can view the content without any fear of being caught by someone.
• Easy accessibility to sites that offer porn content for free. 

Effects of Pornography

Many surveys reveal that a person who is addicted to pornography has a change in attitude towards himself and his family.

• Pornography which is usually viewed in private often leads to deception in marriage and which may, later on, affect their family life.
• It may lead to adultery, prostitution and many unreal expectations that can result in dangerous promiscuous behaviour.
• Pornography may lead to addiction, escalation, desensitization and acting out sexually by one person.

Legal Framework

There are various legislations to regulate Cyber pornography in India, like the Information Technology Act, 2000, Indian Penal Code, Indecent Representation of Women’s act and Young Person’s (Harmful Publication) Act. The provisions related to cyber pornography under these acts are discussed below.

Information Technology Act, 2000

Cyber pornography is banned in many countries but legalized in some. Cyber Pornography is neither banned nor legalised under the IT Act, 2000. The IT Act prohibits the production and distribution of cyber pornography but does not prohibit the viewing or downloading of pornographic content if it is not child pornography.

Section 67 of the Information Technology Act, 2000 makes the following acts punishable with imprisonment up to 3 years and a fine up to 5 lakhs:

1. Publication– It includes uploading of pornographic content on a website, WhatsApp group or any other digital portal where third parties can have access to such pornographic content.
2. Transmission– It means to send obscene material to any person electronically.
3. Causing to be published or transmitted– It is a comprehensive terminology which would end up making the intermediary portal liable, using which the offender has published or transmitted such obscene content. The Intermediary Guidelines under the Information Technology Act put an onus on the Intermediary/Service Provider to exercise due diligence to ensure that their portal is not being misused.

Section 67A of the Information Technology Act makes publication, transmission and causing to be transmitted and published any material containing sexually explicit act or conduct punishable with imprisonment up to 5 years and a fine up to ₹10 lakhs.

Following conclusions can be made by understanding the above provisions:

1. Viewing Cyber pornography is legal in India. Merely downloading and viewing such content does not amount to an offence.
2. Publication of pornographic content online is illegal.
3. Storing Cyber pornographic content is not an offence.
4. Transmitting cyber pornography via instant messaging, emails or any other mode of digital transmission is an offence.

Exceptions

The section 67A of the IT Act does not prohibit books, pamphlets, magazines or pictures which are created for educational purposes or which is kept for religious purposes. Thus, the section does not prohibit the preserving of sculptures that are of historical importance. 

Child Pornography

Section 67B of the IT Act, 2000 makes it publishing, transmitting, viewing or downloading child pornography illegal. The fact that the internet has made child pornography more accessible to the distributors, as well as the collectors, cannot be denied. 

According to Section 67B, any person who has not attained the age of 18 years is a child. It further states that child pornography can be committed in the following five ways:

• By publishing or transmitting or causing to publish or transmit any material electronically that depicts the children engaged in a sexually explicit act or conduct.
• By depicting children in an obscene or sexually explicit manner.
• By inducing children to online relationship with one or more children for and on a sexually explicit act, or in a manner that may offend a reasonable adult on the computer resource.
• By facilitating child abuse online.
• By recording own abuse or that of others pertaining to sexually explicit act with others.

Exceptions

The section does not prohibit the books, pamphlets, magazines or pictures which are created for educational force or which is kept for religious purposes. Thus, sexology (the scientific study of human sexuality or sexual behaviour) is not prohibited under this section. Similarly, if a photograph of a child is used to tell about the anatomy of a child then it won’t constitute an offence under this section.

Indian Penal Code, 1860

Section 292 of IPC prohibits the sale of obscene material. Section 292(1) explains the meaning of “obscenity” and Section 292(2) explains the punishment for sale, distribution, etc. of obscene materials.

Section 292(1) states that any material will be deemed obscene if it is lascivious or prurient or any part of the material has the tendency to corrupt or deprave the people.

Section 292(2) states that a person who:

1. Sell, distributes, lets to hire, publicly exhibit or put into circulation any obscene material.
2. Imports or exports obscene material or knows that such material will be put for sale, distribution or circulation.
3. Is involved or receives profit from any business in the course of which he has knowledge or reason to believe that such obscene objects are for aforesaid purposes.
4. Advertises the obscene material.
5. Offers to do or attempts to do any act which is prohibited under the section.

On a first conviction, such a person shall be awarded either simple or rigorous imprisonment that may extend to 2 years along with a fine that may extend to ₹2,000. On the second conviction or person, such a person shall be awarded simple or rigorous imprisonment that may extend to 5 years along with a fine that may extend to ₹5,000.

Section 293 of Indian Penal Code, 1860, specifies the punishment for a person who sells, lets to hire or distributes any obscene object to any person who is below the age of 20 years. It states that on the first conviction a person shall be awarded imprisonment which may extend to 3 years along with the fine which may extend to ₹5,000 and on subsequent conviction, with imprisonment which may extend to 7 years along with the fine which may extend to ₹5,000.

Indecent Representation of Women’s Act, 1986

Indecent Representation of Women’s Act, 1986 seeks to prohibit the representation of women or any part of her body in an indecent form provided that such representation will injure the public morality or morals. 

POCSO (The Protection of Children from Sexual Offences) Act, 2012

The POCSO Act, 2012 was specifically enacted to prevent children from sexual offences. The act protects children from sexual assault, sexual harassment, and pornography. The act aims to protect the interests and well-being of the children. For the purpose of the act, any person who has not attained the age of 18 years is a child. The Act is gender-neutral.

The provisions relating to Cyber Pornography under the POCSO Act are discussed below:

Section 13 of the POCSO Act, 2012, defines the offence of child pornography, it states that whosoever, uses a child in any form of media for the sexual gratification shall be guilty of the offence of child pornography.

Section 14 of the POCSO Act, 2012, provides the punishment for using a child for pornographic purposes.

Punishment for using a child for pornographic purposes

Sources: The Protection of Children from Sexual Offences (Amendment) Bill, 2019; The Protection of Children from Sexual Offences Act, 2012: PRS

Section 15 of the POCSO Act, 2012, provides that if a person stores pornography that involves a child, in any form then he shall be awarded imprisonment which may extend to 3 years or fine or both.

Liability of Internet intermediaries

Intermediary Meaning

In the context of the Internet, Intermediaries can be understood as an entity that works as the facilitator of the flow of data. It can either refer to the TSP (Telecom service provider) or ISP (Internet service providers) that provide internet services to the users or host the web and provide the server that stores the data. Intermediaries play a crucial role in society that is dependent upon the internet. 

Section 2(1)(w) of the Information Technology Act, 2000 defines intermediaries. It states that intermediary with respect to any particular record refers to:

• any person who receives the information on behalf of another person, 
• Stores or transmits the record or provide services for the record
• Includes telecom service providers, internet service providers, search engines, online auction sites, online marketplaces, web hosting service providers and cyber cafes.

Liability of Intermediaries

Intermediaries liability refers to the extent of the liability of intermediary for the content prohibited by law. It is the consensus that intermediaries often don’t have control over the content, but it is the users who have control over the content or it is the users who publish illegal content on the website rather than the intermediaries, it is argued that in that case, it will be inequitable to make the intermediaries liable rather it should be the user who should be made liable for publishing illegal content unless the intermediaries have considerable editorial control over the content.

Section 79 of the IT Act provides that the Intermediary will not be liable if:

• The intermediary has observed due diligence and certain guidelines issued by the Central Government
• The intermediary has not conspired, abetted, aided or induced the commission of an unlawful act
• The intermediary had taken down the unlawful content after having “actual knowledge” of the illegality of the content or after being notified by the government.

Why is Cyber Pornography difficult to regulate?

It isn’t as easy as it seems to regulate Cyber Pornography. It is really difficult to regulate Cyber Pornography. Some of the reasons for the same are:

• The Internet is a global network, connecting various computers. It is highly decentralized i.e. no single entity has control over the content published on the Internet. 
• People can use proxy servers to access pornographic content on the Internet. Thus, they can even access banned websites by using proxy servers.
• There are a large number of servers on the Internet that contains pornographic content. It is highly difficult to regulate such a large number of servers.
• Adult websites are not the only way to download porn. There are other communication protocols that the Internet users follow to download the pornographic content, say, for example, if a website is banned, the users may download porn by using Bit-Torrent technology. Similarly, peer-topper networks such as eMule or Bulletin Boards can be used to download and share files, including porn.

Suggestions for Regulation of Cyber Pornography

• Adult-oriented top-level Domains

The use of top-level Domains (TLD) may be an effective way to control pornography in the Cyberworld. TLD is the identifier that comes after “dot” in an Internet address. For example, in “yahoo.com”, “com” is the TLD, similarly in “wikipedia.org”, “org” is the TLD. Initially, the Internet was used for military purposes and thus, there were very few computers connected to the Internet, each computer was recognised by its IP (Internet Protocol) address.

Also, as the number of computers and internet users increased, the network became burdensome and thus, the need was felt for designing a new system that used hierarchical database structure. This hierarchical database structure allowed for two domains viz. Top-level domains and second-level domains. Second-level domains are registered under the Top-level domain itself.

It would be easier to filter pornographic content if the service providers opt to force their registrants to register themselves only under the domain for which the website is created. For example, using the TLD “.xxx” or “.sex” for adult websites. This will help in filtering the pornographic content, as the filtering software will need not to filter the keywords but only the TLP’s.

• Credit Card Verification

Another method to regulate cyber pornography can be the use of a credit card to verify the age of the viewer. The operators can ask for a credit card number to verify that the viewer is not a minor.

• Parental Control

Another effective method to regulate pornographic content is the parental control of what minor can access on the Internet. This method involves the use of software which restricts the websites that contain certain keywords. Parents can use such software to screen out certain websites.

• Issuing Digital Certificates

Yet another effective method to regulate cyber pornography is the issuing of Digital Certificates. Digital Certificates resides in the hard drive of the users, it provides all the details about the user including his age. Therefore, if a user will enter a website then the website will automatically check the information of the user and permit only the users who are above the age of 18 years.

Judicial Trends 

Avinash Bajaj v. State (N.C.T.) of Delhi [1]

FACTS: An obscene video titled “DSP Girls having fun” was uploaded by a user (Ravi Raj, a student of IIT Kharagpur) on the website bazee.com. The MMS was posted on the website around 8:30 pm of 27 November 2004, which was deactivated around 10 am on 29 November 2004.

An F.I.R was also lodged against the bazee.com for putting on sale the obscene material. The CEO of bazee.com, Avinash Bajaj was arrested by the police under Section 67 of the IT Act. Since Ravi Raj (the user who uploaded the MMS) absconded, Avinash Bajaj file a petition, seeking the quashing of criminal proceedings. 

HELD: The CEO of bazee.com was released on bail subject to furnishing of two securities in the sum of ₹1,00,000. The accused was also directed not to leave India without the permission of the Court. He was also directed to participate and assist in the partnership.

State of Tamil Nadu v. Dr L. Parekh [2]

FACTS: Dr L. Parekh was a reputed medical practitioner who had contributed more than 120 research paper, all of them were published in a reputed medical journal. The doctor was arrested and sentenced to life imprisonment in a case about online obscenity. The accused filed a writ petition to give him all the facilities as a “special class prisoner”.

HELD: The court dismissed the writ petition of the accused and denied any special class treatment to the accused.

State of Tamil Nadu v. Suhas Katti [3]

FACTS: The accused (a family friend of the victim) was interested in marrying the victim but the victim married another person. The marriage of the victim could not last long and ended up in divorce. The accused again started to contact the victim but the victim refused to have any contact with the accused. The accused then started sending annoying emails to the victim. 

HELD: The court found the accused guilty under section 67 of the IT Act, 2000, and was, therefore, awarded the rigorous imprisonment of 2 years along with a fine of  ₹4,000 under the IT Act.                                  

Conclusion

The presence of the Internet has increased the menace of cyber pornography. Although, there are various provisions which prohibit the publication and circulation of cyber pornography, viewing of cyber pornography is not illegal unless it is child pornography. Intermediaries won’t be liable for any unlawful publication made by the users provided that they were diligent and had not abetted the cybercrime. 

The main problem which is faced by the government is to regulate cyber pornography effectively. Minors can easily access pornographic material with the help of the Internet. The most effective method to curb the menace of cyber pornography is an attempt by the state to attain social maturity through education and then the rest should be left upon the individual’s choice, as to what he wishes to see.

The parents have to play an important role to control the activities of their children on the Internet, they need to educate the children and help them as a friend.  

To know more about legal recourse in India, please Click Here.

References

1. 2005 (79) DRJ 576
2. Writ Petition No. 7313 of 2002 and W.P.M.P.No. 10120 of 2002
3. State of Tamil Nadu vs. Suhas Katti, 2004, Some Indian case studies, 2010-11, available at wwwcyberlawclinic.orf/case study.asp 
4. https://www.psychologytoday.com/us/blog/all-about-sex/201611/dueling-statistics-how-much-the-internet-is-porn
5. http://www.covenanteyes.com/pornstats/
6. https://pdfs.semanticscholar.org/d5ac/9d42834942df20b7224d4c45831cd487ce91.pdf
7. http://endsexualexploitation.org/wp-content/uploads/NCOSE_Pornography-PublicHealth_ResearchSummary_8-2_17_FINAL-with-logo.pdf

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This article has been written by Pankhuri Anand, a student of Banasthali Vidyapith, Rajasthan. This article discusses the provisions of the Indian Evidence Act which deals with the exclusion of oral evidence by documentary evidence.

Synopsis

Chapter VI of the Indian Evidence Act, 1872 deals with the provisions of exclusion of oral evidence by documentary evidence.  This whole topic is covered under section 91 to section 100 of the Act. 

Oral and Documentary Evidence

Oral Evidence

The evidence which is confined to the words spoken by mouth is the oral evidence. If oral evidence is worthy of credit, it is sufficient to prove a fact or a title without any documentary evidence. The provisions related to oral evidence are given under Chapter IV of the Indian Evidence Act, 1872. Oral evidence of a witness can be considered doubtful if it is in contradiction with the previous statement.

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Documentary Evidence

The provisions related to the documentary evidence are provided under Chapter-V of the Indian Evidence Act, 1872. Section 3 of the Act defines the term “document”. Any matter which is expressed or described on any substance by means of letters, figures or remarks or by more than one means and which can be used for recording the matter is considered as a “document”.

Generally, the most common document which we have to deal with is described by letters. The documents are written in any language of communication such as Hindi, English, Urdu etc.

The documents produced before the court as evidence are the documentary evidence and there must primary or secondary evidence to prove the contents of the documents. Primary evidence has been defined under section 62 of the Indian Evidence Act and it means the original document when itself produced before the court for the inspection.

The secondary evidence has been defined under section 63 of the Act. The secondary evidence is the certified copy of the evidence or copy of original documents. Secondary evidence also includes the oral accounts given by a person about the contents of the document who has himself seen it.

Difference between Oral Evidence and Documentary Evidence

Exclusion of oral evidence by documentary evidence

Evidence reduced in the form of document 

Section 91 of the Indian Evidence Act, 1872  lays down the provision that when evidence related to contracts, grants and other depositions of the property is reduced as a document, then no evidence is required to be given for proof of those matters except the document itself. In the cases where the secondary evidence is admissible then such secondary evidence is admissible.

There are certain kinds of contracts, grants and other depositions which can be created orally and they do not require any document.

Illustration

A sells his Dog for Rs. 100 to B: In this case no written deed is compulsory.

B wants to mortgage the dog for Rs. 100 to C: No written deed is mandatory.

B pays Rs. 100 to C and takes back the possession of the dog.

All of the above-mentioned transaction will be valid even without a written deed.

But, there are many documents and matters of the court which are considered mandatory by the law to be in writing and registered e.g., judgement and decrees, the deposition of witnesses, when an accused person is examined etc.

Orally, many contracts, grants and other depositions can be affected but reducing the terms of the contract on which the party agrees in a document is considered to be the best evidence for the terms of that contract. When reduced to documents, it acts as the best evidence. Even if the document is lost or in adversary possession secondary evidence as described under section 65 can be produced before the court.

The principle behind section 91

Section 91 of the Evidence Act, lays down the provision for the situation when the terms of the contract, grant or depositions of properties have been reduced in the document even though it is required under law to be reduced into the document. In this condition, if the proof is required, the document itself is required to be produced or if the secondary evidence is admissible then the secondary evidence can be used.

Rules to be followed for the exclusion of oral evidence by documentary evidence

The admission of the oral evidence for proving the contents of a document is excluded under section 91 except where the secondary evidence is considered admissible. The oral evidence is also excluded under section 92 for contradicting the terms of a contract where the deed is proved. So, the rules laid down by these sections can be considered as an exclusive rule as held in the case of Raja Ram Jaiswal v. Ganesh Prasad.

According to the rule laid down under section 91 of the Indian Evidence Act, no evidence can be produced before the court to prove the statement when the terms of a contract are reduced in writing except the document itself and under certain circumstances, the secondary evidence.

The oral evidence excluded under section 91 in case of a deed only when the deed contains the terms of a contract or some property is disposed of through it or the law binds the contents of the document to be in writing. As held in the case of Tahuri Shal v. Jhunjhunwala, a law does not make the adoption to be in writing mandatory. The deed of adoption is just a record of the fact adoption has taken place. No rights are created by it. It is no more than a piece of evidence and when a party fails to produce it, the law does not bar him from producing oral evidence.

Any matter required to be in writing by law

When a particular matter is required to be in writing by law then it cannot be substituted by oral evidence. Some of the examples of the documents that are required to be in writing by law are judgements, an examination of witnesses in civil as well as criminal cases, deeds of conveyance of land, deed for partition, a will and many more.

Exceptions to Section 91

Exception 1: Appointment of a public officer by the way of writing

As per the general rule, to prove the content of a writing, the writing itself is required to be produced before the court and in case of its absence, secondary evidence may be given. But, there is an exception to this rule. When a public officer is appointed and the appointment is required to be made in writing and if it is shown before the court that some person has acted as the officer by whom the person has been appointed, then the writing by which he has been appointed needs not to be proved.

Illustration

A question arises whether A is a judge of the High Court, then the warrant of appointment is not required to be proved. The fact that he is working as a judge of the High Court will be proved.

The fact that a person is working in the due capacity of his office is also evidence of that person’s appointment in the office.

Exception 2: When probate has been obtained on the basis of a will

Another exception of the general rule of the writing to be produced itself is that when on the basis of will probate has been obtained and if later, the question arises on the existence of that will, the original will is not required to be produced before the court. 

This exception requires to prove the contents of the will by which the probate is granted. The term “probate” stands for the copy of a certificate with the seal of the court granting administration to the estate of the testator.

The probate copy of the will is secondary evidence of the contents of the original will in a strict sense but it is ranked as primary evidence

Explanations under Section 91

The explanations of section 91 state that it is not necessary for a written document to be comprised in a single document. A contract or grant which is executed can be in a single document or can be comprised of several documents. Section 91 applies in both conditions i.e., whether the contracts are comprised of a single document or in several documents.

Another explanation laid down under section 91 is that when there is more than one original document, then only one of them is required to be presented before the court.

Evidence of oral agreement excluded

Section 92 of the Indian Evidence Act lays down the provision that when as laid down under section 91 the documents which are required to be in writing such as the terms of the contract, grant or other deposition of property or any other matter required by the law in writing then the court cannot allow being lead by oral evidence to the party contract or legal representative for the purpose of contradicting, varying, addition or subtraction from the contract.

Section 92 comes into operation when the documents have been submitted under section 91 for the purpose of contradicting, varying, addition or any modification from its terms.

Section 92 of the Act clarifies itself that only such oral arguments are excluded which contradicts the terms of contract, deposition or any other matter required to be in writing. If such a document is not a contract, grant or deposition of property, then the oral evidence can be included to vary its content.

Section 92 is applicable only to the parties to the instrument and not to the person who is a stranger to the instrument. In the case of Ram Janaki Raman v. State, it was held by the court that the bar laid down by section 92 of the Act was not applicable under the Criminal proceeding.

Proviso(1): The facts which invalidate the document

If a fact will invalidate the contact then no man is debarred from proving that fact. According to the laws of contract, any contract which is created by fraud or undue influence, it is not enforceable and considered invalid. So, such facts are easy to prove in the circumstances when the contract has been reduced into written form.

Proviso(2): Separate oral arguments

The term separate oral arguments in this context refer to the oral agreements made before entering into the documents. The contemporaneous or prior oral agreements are referred to under Proviso (2) of section 92.  

When there is a prior oral agreement on a matter about which the document is silent, then it can be proved only when such terms of oral agreements are not in contradiction with the terms of the contract.

So, as held in the case of Bal Ram v. Ramesh Chandra, the requirements of this proviso are:

1. On the matter on which the document is silent, a separate oral agreement should be related to it.
2. Such oral agreement should not be inconsistent with the terms of the document.

Proviso (3): Separate Oral Argument as a condition precedent

The situation when an oral agreement is to the effect that it will not be effective or will not be enforced unless a condition precedent is fulfilled or unless a certain event takes place, the oral agreements are admissible in this case to show that as such condition has not been performed, the contract was not enforceable.

Proviso (4): Distinct oral agreement made subsequently to renew or modify the contract

To prove any subsequent oral agreement leading to alteration of terms of all the written contracts except to the contracts which are required to be in writing by law evidence can be given.

When a transaction is reduced to writing which is not required by law to be in writing but the agreement is made for the convenience of parties then an oral agreement made subsequently to modify it is admissible.

Proviso (5): Any usage or customs by which incidents not mentioned in any contract are usually annexed to contract

Parol evidence of usage and customs are always admissible. When the object is to make intelligible before the court about the meaning in which the parties have used a parol evidence may be given to prove any local custom of the general application, so that it may be applied to the subject matter of the contract and bind the parties to the written contract unless such usage or custom is inconsistent with the writing.

Proviso(6): Extrinsic evidence of surrounding circumstances

Whenever a document is required to be proved before the court, its object is to endeavour and ascertain its real meaning and the extrinsic evidence are necessary for this purpose. The object of admissibility of the evidence of the surrounding circumstances is to ascertain the real evidence of the parties but from the language of the document, the intentions of parties must be gathered as explained by extrinsic evidence.

Inter-relation between section 91 and 92

Section 91 and 92 are supplementary to each other. Both sections support and complete each other. When the terms of the contract, deposition of a property or any matter required to be in writing under the law if proved by the document then the oral evidence is not required to contradict it.

After a document has been produced to prove its terms under section 91, then the provisions of section 92 play for excluding evidence of any oral agreement or statement for the purpose of contradicting, varying, addition or subtraction from its terms.

Even though the two sections are supplementary to each other, both sections differ about some of the opinions in particular. Section 91 deals with the documents whether or not they are having the purpose to dispose off the rights or not but section 92 is applicable to the documents which are dispositive in nature.

Section 91 applies to the document which is both bilateral and unilateral documents but section 92 applies only to the document which is of bilateral nature.

Latent and Patent Ambiguity

The rule about admission or exclusion of extrinsic evidence has been laid down under section 93 to 98 of the Indian Evidence Act. Such exclusion or admission of extrinsic evidence is in connection with the facts contained in a document which either a contract or not.

The ambiguity in the language of a document can be divided into two categories:

1. Patent ambiguity
2. Latent ambiguity

A patent ambiguity is when the language of the document or deed is uncertain. The latent ambiguity is an ambiguity which is not present in the deed but it arises due to extrinsic factors.

Test of difference

The test to find the difference that whether the ambiguity is a patent ambiguity or a latent ambiguity is to put the document in the hands of an ordinary intelligent educated person.

1. If on reading the document the ambiguity can be detected and no definite meaning can be understood then such ambiguity is patent ambiguity.
2. If on perusal of document no ambiguity can be found by him and the meaning is definite but that document is applied with the instrument of facts, the ambiguity arises and its meaning becomes indefinite, then the ambiguity is the latent ambiguity.

The distinction between Patent Ambiguity and Latent Ambiguity

Extrinsic Evidence to explain Ambiguity in a document 

Indian Evidence Act lays down the provision for including extrinsic evidence in order to explain ambiguity in a document.

When extrinsic evidence cannot be given 

Section 93: Exclusion of evidence while explaining or amendment of an ambiguous document

Section 93 of the Indian Evidence Act, deals with the patent ambiguity and no oral evidence is given to remove the patent ambiguity.

According to section 93 when the language of the document is ambiguous or defective on its face, the evidence which can show its meaning or supply its effects may not be given.

Illustration

An agreement is made between A and B that A will sell his crops for Rs. 1000 or 2000. The evidence cannot be given that which price was to be given.

In the case of Keshav Lal v. Lal Bhai T. Mills Ltd., it was held by the Supreme Court that it would not be open for the parties or the court to remove the ambiguity or vagueness by relying upon the extrinsic evidence.

Section 94: In the application of document to existing facts, the application against it to be excluded

According to section 94, when the language in the document is simple and plain itself and it applies accurately to the existing facts, the evidence to show that it was not meant to apply to such facts may not be given.

When there is neither a patent ambiguity nor a latent ambiguity then the evidence cannot be given to contradict this.

In the case of General Court Marshal v. Col. Anil Tej Singh Dhaliwal it was held by the Supreme Court that section 94 applies only when the execution of the document is admitted before the court and there are no vitiating circumstances against it.

When extrinsic evidence can be given 

Section 95: Evidence allowed to be given when the document is plain in itself

Section 95 of the Indian Evidence Act deals with latent ambiguity and oral evidence can be given for removing latent ambiguity. When the language which has been used in the document is simple and plain but it is not in the meaning to existing facts due to the mistakes in the descriptive evidence and such mistake can be shown that it was used in a peculiar sense.

Illustration

A sold his house to B stating in the deed as “my house in Lucknow”.

But, A has no house in Lucknow but he has a house in Kanpur in which B is living since the deed was executed. Then the evidence can be used to prove the fact the deed was related to the house in Kanpur.

Section 96: Evidence allowed when the application of the language which is meant to apply on only one, applies to several persons

When the language of the facts is such that, which is meant to apply on only one person applies on several persons, then the evidence may be given under section 96 of the Indian Evidence Act to clarify that which of those persons or things, that fact is intended to apply on.

Illustration

A  agrees to sell his white cow to B for Rs. 2000 and in the deed he has mentioned “my white cow”. A has two white cows. Evidence can be given to prove that which white cow he meant in that deed.

Section 97: When on the application of the language of two or more facts neither of them applies correctly, then evidence to be admitted

According to section 97 of the Indian Evidence Act, when the language used in a fact applies to one set existing fact partly and partly to another set of existing fact, but if applied as a whole, it does not apply to either correctly then the evidence can be presented before the court to clarify that which of the facts was actually intended.

Illustration

X sells his land to Y stating “My land at A in the occupation of B”. X had land at A but it is not in occupation of B and X has land which is in the occupation of B but it is not at A. Then X can present evidence before the court that which land he actually wants to sell.

Section 98: Evidence given to show the meaning of illegible characters

To show the meaning of illegible characters or characters which are not commonly intelligible character such as characters of foreign, obsolete, technical, local or provincial expressions of words or abbreviations which is used in a peculiar sense, evidence can be presented before the court under section 98 of the Indian Evidence Act.

Illustration

A sells his artwork to B stating “all my mods”. Here, what A meant by the term “mods” can be clarified by the way of admission of evidence.

Who may give evidence of agreement varying terms of the document 

Under section 99 of the Indian Evidence Act, those persons also can give evidence who are not parties to a document or representative-in-interest regarding any fact which shows a contemporaneous agreement varying the terms of the document.

As section 92 of the Act excludes the party to the contract from producing the document but it does not exclude those who are the parties to contract. So, under this section i.e., section 99 the same provision is being repeated.

In the case of Bai Hira Devi v. Official Assignee of Bombay section 92 deals only with the matter related to contracts, grants and other depositions of the property but section 99 deals with all types of document, whether it is a contract or not. Section 99 speaks only about varying the terms of a document.

Provisions of Indian Succession Acts related to wills to be excluded 

According to section 100 of the Indian Evidence Act, the provisions laid down under Chapter VI of the Indian Evidence Act are to be taken into effect on any of the provisions regarding the construction of will under the Indian Succession Act,1865.

Conclusion

Chapter VI of the Indian Evidence Act deals with the provisions related to the exclusion of oral evidence by documentary evidence. There are certain circumstances when the oral evidence cannot be admitted before the court for the support of documentary and there are also instances when the oral evidence is admissible. All the provisions have to be dealt with according to this chapter. The provisions related to the will under the Indian Succession Act is excluded from these provisions.

Reference

1. Lal Batul, The Law of Evidence, 22nd Edition (2018), Central Law Agency.
2. The Indian Evidence Act, 1872.

The post Exclusion of Oral Evidence by Documentary Evidence appeared first on iPleaders.

This article is written by Sparsh Mali, a fourth-year law student at the School of Law, UPES, Dehradun. The article tells about different types of confessions and their evidentiary value. 

Meaning of Confession

According to Sir James Stephen “An admission made at any time by a person charged with a crime stating or suggesting the inference that he committed a crime”.

Though it an undiscovered fact that the term ‘confession’ is nowhere defined or expressed in the Indian Evidence Act, but the inference explained under the definition of admission in Section 17 of Indian evidence Act also applies to confession in the same manner. Section 17 expressly provides that any statement whether oral or in the form documentary which put forward for the consideration of any conclusion to the fact in issue or to the relevant facts.

Now after understanding the discovery of both the term it is very much clear that when is put forward for the consideration of any inference to the fact in issue or to the relevant facts in the civil proceeding then such consideration of statements is known as confession. Thus, the confession is something which is made by the person who is charged with any criminal offences and such statements conferred by him shall be suggesting a conclusion as to any fact in issue or as to relevant facts. The statements may infer any reasoning for concluding or suggesting that he is guilty of a crime. We may also define the confession in other words that the admission by the accused in the criminal proceedings is a confession.

In Pakala Narayan Swami V. Emperor, Lord Atkin observed that “A confession must either be admitted in the context of any offence or in relation with any substantial facts which inaugurate the offence with criminal proceedings. And an admission of serious wrongdoing, even conclusively incriminating fact is not itself a confession”.

In, Palvinder Kaur V. State of Punjab the Supreme Court uplifted the Privy Council decision in Pakala Narayan Swami case and substantiated their arguments over two reasoning- Firstly, the definition of confession only comes to exist when the statements conferring the admission that he is either guilty of any offence or the admission is probating all the facts which constitute the offence. Secondly, when the statement has different qualities and contains such a mixture of confessional statements which conclude to the acquittal of the person making the confession, then such statements cannot be considered as a confession.

In Nishi Kant Jha v State of Bihar, the Supreme Court highlighted that there is no wrong on relying some part of statements confessed by the accused and neglecting the other part, the court has traced out this concept from English Law and when court in its capacity understood that it has enough evidence to neglect the exculpatory part of the confession, then it may rely on the inculpatory part such confession.

Conclusively we can understand that the expression of confession means any statements made by an accused which proves his guilt. And there is just a thin line difference between the two terminologies of the Indian Evidence Act that admission is no other different term than admission as a confession only ends up in admission of guilt by the accused. So a person accused of any offence makes any statement against him which may prove his guilt, is called confession or confessional statement. It is observed that confessions are upgrades of admission which makes it special, thus, it is popularly administered that “All Confessions are admissions, but not all Admissions are confessions.”

In Baburao Bajirao Patil v. State of Maharashtra [1] the court while deciding the case explained the principle that “the Court before ascertaining the facts for the purpose of deciding the facts in issues of the case, should begin ascertaining the case facts with all other evidences possible related to the case and then only it shall turn to the approach of confession by the accused in order to administer complete justice to the conclusion of guilt of the accused.

Meaning of Admission

Admission plays a vital part in judicial proceedings as if in a case either of the parties to the suit in the judicial proceeding proves that the other party has admitted the fact in issues or the relevant facts in the case then it becomes easy for the Court to administer justice effectively as the court need not take much evidence and has not to involve in the judicial proceedings because the question of the case has already been settled by either of the parties in the course of admission. Section 17 to 23 of the Indian Evidence Act specifically deals with the portions related to admission.

The word ‘Admission’ expressed in the Evidence Act means “When any person voluntarily acknowledges the existence of any facts in issue or facts”. Like in the case of confession we discovered that confession is not much described in the Evidence Act in the same manner the Indian Evidence Act also has not done much effective work on expressing, the term ‘Admission’ in an outspread sense.

Section 17 of Indian Evidence Act, defines admission as any statement made in either form such as oral, documentary or in electronic form which has enough probative value to suggest or conclude any inference as to any fact in issue or relevant fact.

Admissions have no definite pattern but still, it can either be formal or informal. The formal admission is also called as judicial admission which is made at the time of the judicial proceeding, while the informal admission is those admissions which are made in during the normal day to day activity like in the normal course of life. Formal admission or the judicial admissions are completely admissible by the Court of law under Section 58 of the same act and has much higher probative value into substantive any fact. They are generally rebuttable in nature and require no further proof to disprove the facts admitted in a court of law unless the court asks for the same.

In, Nagindas Ramdas v Dalpatram Ichharam [2] the Supreme Court of India explained the effects of admission, that admissions are generally true and clear of any ambiguity, and they shall be considered as the best proof for proving any fact in issue or relevant fact by the admission of certain facts. On the other hand, the informal admission which is made during the day to day activity just help in bringing the facts either by an oral or written statement by the admission of either party.

Under the English law, the term ‘admission’ is specifically utilised in civil proceedings, and on the other hand, the term ‘confession’ is used in criminal proceedings. But, under the Indian statute, the Evidence Act didn’t distinguish much between both the term rather the Indian Evidence Act short distinguished as that- confession is a statement which is made by the accused declaring himself guilty.

In CBI v/s V .C. Shukla the Supreme Court has lifted the concept of admission and confession; and explained the difference that discretionary and undeviating cognizance of guilt is confession, and the confession made by the accused may be used as a piece of negative evidence against him. But on the other hand, admissions acknowledged by the person admission the fact may not be considered under the preview of Section 4 that is conclusive proof of facts admitted, and the admitted matter or facts can only be considered as substantive or probative evidence of admission.

Difference between Confession and Admission

The litmus test distinguishes the different terms of statements which are confession and admission. The litmus test suggests that confession is some statements which itself is complete in the conviction of the accused the statements alone has the value of convicting the accused, and when there is need of some supplementary or secondary evidence to prove the conviction of the accused then it is an admission.

In, Sahoo v. the State of U.P, newly wedded women joined the new house of her husband and after some time the accused murdered his daughter-in-law, and after murdering her daughter-in-law he screamed “I have finished her” and in the course of his statement many of his neighbours heard his statement stating “I have finished her”. In this case, the court observed that the statements made by the accused should be considered as confession and they shall be regarded as confessionary in nature.

Types of Confession and process of recording confession

A confession may be of the different type according to the matter of the cases. Broadly confession is differentiated into two different statuses like- when the confession by the means of statements is given itself in the court of law then such confession will be considered as judicial confession, whereas, when the confession by the way of statements is produced at any place other than court then such confession will lead towards extrajudicial confession. The different sets of confession do not have the same evidentiary values as of others and hence their values degrade and upgrade by the circumstance that how what and where these confessions are made. The exceptional feature of confession is that a conversation to himself also leads toward a confession and this feature was lighted in the case of Sahoo v. the State of U.P. where the accused has murdered his son’s newly wedded wife as he usually has serious arguments with her, and when the accused killed daughter-in-law it was seen and heard by many people living there that he was uttering words while stating that “I finished her and now I am free from any daily quarrels”. The court observed in this case that the statement or the self conversation made by the accused shall be considered as a confession to prove his guilt and such confession should be recognised as a relevant in evidence in administering justice, and just being in the case that the statements are not communicated to any other person, other than him does not dilutes the relevancy of a confession. Therefore confession made to himself is also quality evidence which will be considered as relevant evidence in a court of law.

Formal Confession

Formal confession is also known as Judicial Confession and those statements which are made before an office of magistrate or in the court of law during any criminal proceedings are known as formal or judicial confession. A judicial confession not much other than a “plea of guilty” as per the provision explained under Article 20(3) if Indian Constitution otherwise any confession made against the person who is making the confession will have no evidentiary value and he cannot be concluded guilty of any offence on the behalf of such confession.

Judicial confessions should not be mixed up with informal confession though being a part of the same branch but both have different values and relevancy in determining the accused’s guilt. There may be some arguments stating that a conviction can be arranged even on the basis of an extra-judicial confession but on the other hand we must also see that there is no reason in neglecting the arrangement of conviction solely based on the judicial confession. So a confession made by the accused where his statements are leading himself to the bar is probative evidence to prove his guilt but all such confession shall be made in the presence of a magistrate or in a court of law. On the other side the court must take care of all the necessary steps to check if the confession made by the accused which may prove his guilt must be voluntary and true, so that no innocent can be charged for wrongful act of others as provided in Article 20(3) of the Indian Constitution which talks about ‘self incrimination’.

Informal Confession

Informal confession is also known as extrajudicial confession and those statements which are made at any place other than the place where there is an absence of magistrate or at any place other than the court is considered as an extra-judicial confession. It is not necessary that the statements should have been addressed to any definite individual. Just like in the principle of judicial confession, informal confession can also be made in the form of prayer, the informal confession is in any private room or a self conversation. But the court has to take care that no matter judicial or extrajudicial confession, the confession by the accused must be consistent with Article 20(3) of Indian Constitution which say ‘No one should be compelled to give evidence against himself’ that means the confession should be on the will of the confessor and must be true, then only a person can be charged for any criminal offence.

A person expressing the guilt of the offence he committed to any private person like any friend or his related persons than such commission of a crime will cover the aspects of extrajudicial confession. Though both judicial and extrajudicial confession can be accepted in the court but both have different evidentiary value or different probative value so as to establish any fact. Which means a conviction will not solely be based on the confession rather the court will test the extrajudicial confession to make any person guilty of any offence committed by him. What makes the extra-judicial confession different from judicial confession is that extrajudicial confession can be made to any private person which also includes a judicial officer in his private capacity. The extra-judicial confession in some cases also restricts a magistrate to record confession which he is not empowered under Section 164 of the Cr.P.C.

In, State of Punjab v. Bhagwan Singh [3] the Supreme Court in this case held that an extra-judicial confession’s value only increases when it is clearly consistent and convincing to the conclusion of the case otherwise the accused cannot be held liable for the conviction solely on the basis of the confession made by him.

In, Balwinder Singh v. State [4] the Supreme Court has mentioned some guidelines in the form of deciding the case that in the case of extrajudicial confession it the court must check for the credibility of the person making the confession and all of his statements shall be tested by the court to conclude whether the person who made the confession is trustworthy or not, otherwise a person who is not so trustworthy then his statements cannot be used for making any inference to prove the guilt of the accused.

In, Sahadevan v. State of Tamil Nadu [5] the Supreme Court while deciding the case has made few principles in the form of guidelines where the court has to check such principles before admitting the confession of the accused, The following principles mentioned by the Supreme Court are:

• Extrajudicial confessions are generally a very weak kind of evidence by itself and the court must examine such statements efficiently.
• Extrajudicial confession should be made by the person’s own will and such statements must be true.
• The evidentiary value of extra-judicial confession instantly increases when it is supported by other such evidence.
• The statements of the confessor must prove his guilt like any other fact in issue is proven in the judicial proceedings.

Retracted confession

The English meaning of retraction is ‘the action of drawing back something’ retraction confession is a type of confession which is previously voluntarily made by the confessor but afterwards it is revoked or retracted by the same confessor. Retracted confession can be utilised against the person who is confessing some retracted statements if it is substantiated by another independent and corroborative evidence.

In Pyare Lal v. State of Rajasthan [6] the Supreme Court, in this case, lifted that a retracted confession has enough values to form any other legal grounds to establish any conviction only if the Court satisfies that it was true and was on someone’s own will. But the Court has to testify that the conviction cannot be solely be made on such confession until and unless they are corroborated.

Confession by co-accused: When there are more than one accused in a case and they are jointly prosecuted for the same offence, and when any of them confesses any statements against himself in such a way that he may be proved guilty of that offence then the court on such believes may prosecute other accused also who are jointly persecuted in the same offence.

Illustration- If three persons Aman, Vinod and Vijay are charged jointly for the same offence and they are prosecuted for the murder of Harsh. And during the judicial proceedings, Aman gives confessions that he along with Vinod and Vijay killed Harsh and if the statements of the Aman are recognised as true statements then the court may use the confession of Aman against all the accused and can prove the guilt of Vinod and Vijay also. Evidentiary value of different types of confessions

Judicial confession

Section 80 of the Indian Evidence Act give the evidentiary value to the judicial confession and expresses that a confession made in the presence of magistrate or in the court which is recorded by the magistrate as prescribed by the law then such confession shall be presumed to be true and genuine confession and the accused can be tried with the offence. Section 164 of CrPC empowers magistrate to record confession so it is not necessary that which magistrate recorded the confession unless he is restricted to record the confession. Hence, for raising the presumption the identity of the accused must be clear and proved in the confession to persecute him for the guilt of the offence he committed.

Extra-judicial confession

Though extra-judicial confession don’t have much evidentiary value as compared to judicial confession but in the case of a written confession the writing of the accused itself is one of the best evidence available to the court to charge the accused of the offence. And if the confession is not available in the form of written statements then the court may test the oral confession of the accused which was made to any other person. On the court’s discretion and satisfaction, the statements of the accused to any other person may be admissible and thereafter the accused may be prosecuted for the offence on which he is charged.

Retracted confession

Retracted confession has circumstantial evidentiary that the cognizance of any offence the police investigate the case on the basis of their investigation they examine the witnesses, fact in issues, accused and many more things. If in the opinion of investigation, police found that the accused is guilty of a particular offence then they submit a report to the concerned magistrate or the court. During the court proceeding, the magistrate has to take pieces of evidence and examines the accused and if on the behalf of investigation report the courts find someone guilty of any particular offence then the court shall direct the accused to confess the statements again. When the trial begins the magistrate has to ask the accused that if he is guilty of an offence or not and if the accused don’t plead guilty then he may retract all the confession made to the police during the police investigation and must substantiate his retracted confession. So the value of retracted evidence has circumstantial evidentiary value, therefore, the court has to make any inference very cautiously.

Confession by co-accused

The Supreme Court in the case of Pancho v. State of Haryana [7], held that the confessions made by the co-accused do not have much evidentiary value and they cannot be considered as a substantive piece of evidence. Therefore the confession made by the co-accused can only be used to corroborate the conclusion drawn out by other probative evidence.

When is a confession irrelevant?

Sections 24, 25, 26 and relevant part of Section 27 of the Indian Evidence Act, 1872 deals with condition that when can confession be irrelevant.

Section 24 of the same Act describes different instances when a confession on the basis of such instances becomes irrelevant. Section 24 of Indian Evidence Act provides that a confession made by a person who is accused of some offence is irrelevant if such confession comes out of any inducement, threat or promise and such instances have proceeded from a person in authority like police, magistrate, court etc., the other condition of this section is that inducement, threat or promise should be in reference to charge of any offence and all such inducements, threat or promise should give benefit of temporal nature.

For better understanding, we may divide the complete structure into 4 different essentials that are:

• The confession must be out of inducement, threat or promise, inducement, etc.
• Such confession should proceed from a person in authority.
• It should relate to the charge in question.
• It should have the benefit of temporal nature or disadvantage.

Thus, when these conditions are fulfilled then the confession becomes irrelevant.

Confession to Police, Police Custody and effect of police presence

The essence of commission can be found in different statutes but Section 24 to 30 of Evidence Act and section 162 to 164 of CrPC specifically deals with a confession.

Section 25 provides that “No statements made to a Police Officer shall be considered as a confession for the purpose of proving that confession against that person who is accused to the case”. The terms explained under Section 25 of this Act has vital importance which makes sure that any confession made by the accused to the police officer under any circumstances until provided, is totally not admissible as evidence in a court of law against the accused to prove his guilt.

Section 26 prohibits the judicial bodies to prove the guilt of accused by his confession which is made to police in police custody. Section 26 imposes a partial ban on provisions stated in Section 25 that confession made to the police officer in police custody may be admissible if the confession recorded in the immediate presence of a magistrate.

Confession in further discovery of facts

Section 27 lift the concept of the relevance of information received from the accused by irrelevant confess made to police or in police custody which may help in further discovery of facts of the cases. Section 27 provides that whenever a fact is forcefully discovered in the course of receiving information from accused during a police investigation or in the police custody and whenever such information leads to the discovery of other relevant facts they may be distinctly be proved.

In Pandu Rang Kallu Patil v. State of Maharashtra, while deciding the case stated that Section 27 of the Indian Evidence Act was enacted as to lift and to remove the ban provided in section 25 and 26 of the Act in such a way that- Section 25 and 26, absolutely bans the admission of any confession made to the police or in police custody but the objects of Section 27 provides the admission of statements made by an accused even to the Police Officer and the objective explained by the Supreme Court was that such confession may help in further discovery of facts which may help the court to prove other facts related to the case.

References

1. 1971 Cri App R (SC) 255
2. (1974 1 SCC 242)
3.  AIR 1975 SC 258
4. AIR 1996 SC 607
5. AIR 2012 SC 2435
6. AIR 1963 SC 1094
7. (2011) 10 SCC 165

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This article is written by Kehkasha Sehgal, pursuing a Certificate Course in Prevention of Sexual Harassment at the Workplace from Lawsikho.com. Here she discusses Sexual Harassment Complaint Hearing.

Introduction

In an age of #Metoo, women all across the world are finally speaking up, standing tall and fighting back harassment of all types. There is a discussion on the table and its highlighting years of issues that women have faced.

While harassment is faced in all types of situations and by all genders alike, harassment at the workplace faced by women is a specific situation which has been acknowledged by the United Nations and adopted by many countries to help address it.

India being a signatory to the United Nation’s Convention on the Elimination of all Forms of Discrimination Against Women took steps to enact the law on sexual harassment. In 2013, the Government of India notified the Sexual harassment of Women At Workplace (Prevention, Prohibition and Redressal) Act, 2013 and gave the framework of what constitutes “sexual harassment”, the consequences and redressal of such acts.     

Definition of Sexual Harassment

As per the Sexual harassment of Women At Workplace (Prevention, Prohibition and Redressal) Act, 2013; sexual harassment is defined to include the following: 

• • Physical contact or advances 
  • A demand or request for sexual favours 
  • Making sexually coloured remarks 
  • Showing pornography 
  • Any other unwelcome physical, verbal or non-verbal conduct of sexual nature

The judiciary of this country have deliberated on what is considered as “sexual harassment” and have held that physical contact or advances would constitute sexual harassment only if such physical contact is a part of a sexually determined behaviour. Such physical contact must be in the context of behaviour which is sexually oriented. A mere physical accidental contact even though unwelcome, would not amount to sexual harassment. A physical contact which has no undertone of a sexual nature and is not occasioned by the gender of the complainant may not amount to sexual harassment.

Click Above

Legal Requirements

The Sexual harassment of Women At Workplace (Prevention, Prohibition and Redressal) Act, 2013 requires every organization with more than ten employees to constitute an ICC. The quorum of the ICC ought to be as follows:   

1. A presiding officer, who shall be a woman employee of a senior level; 
2. Two employees with experience in social work or woman-related issues or have legal knowledge; and
3. An external member who is well versed in women rights and laws.

The composition has to be 50% women. Further, the law mandates the Company to have a sexual harassment policy in place which prescribes the consequences of actions in relation to sexual harassment.

The Company, among other things, is also required to orgainse sensitisation sessions for its employees.

Procedure for Complaint

The aggrieved woman can approach the Internal Complaints Committee (“ICC”) formed within the organization or the Local Complaints Committee (if applicable), within three months of the incident.

The complaint should be detailed and in writing with the clear and descriptive narration of the incident. It is advisable that the woman complaining about the alleged sexual harassment should preserve all records pertaining to the incident in question in order to prove the harassment suffered.

Timelines

The complainant should approach the HR in the company and then proceed to file a complaint to the ICC.

On receiving the complaint, the ICC may at the request of the woman attempt to settle the matter through conciliation. In that situation, monetary settlement shall not form the basis of such conciliation and the ICC may guide the parties to an amicable understanding. The meeting should be arranged not later than 3 days.

Consequently, the conciliation report shall have to be submitted by the ICC to the employer and district officer.

In case the option of conciliation is not exercised or is not successful, the ICC shall initiate an inquiry of the matter and the same shall be completed in 90 days. Subsequently, the inquiry report shall be submitted by the ICC within 10 days.

The implementation of the report of the ICC shall be done by the employer within 60 days.

Steps involved in a Complaint Hearing

Step 1

Notice of Hearing

The ICC shall send the accused and the complainant, a notice of hearing thereby requesting them to prepare a submission, witnesses and other relevant documents.

The notice should be clear and should contain the accusations, date and time of proceedings, the constitution of the ICC, due notice of ex-parte proceedings etc.

It should also give adequate time to the accused and the complainant to prepare written submissions.

Step 2

Hearing

The ICC should imbibe the principles of natural justice while conducting the hearing. Briefly, the principles are mentioned herein below for ready reference:

• The authority ought not to have a personal interest in the case which will result in bias of the proceedings 
• Both parties ought to be given adequate opportunity to establish and defend their case
• The decision/order should be in writing and must be well reasoned.

It may be noted that the lack of compliance with the principles of natural justice may result in the judiciary dismissing the decision of the ICC.

A just hearing shall include written submissions as well as oral hearing from both parties in order to rule out any bias and have sound judgment.

The first hearing is imperative for the commencement of proceedings and the ICC while conducting the hearing as well as any subsequent hearings should keep in mind the following:

• An order sheet to be prepared for recording the minutes of the proceeding. 
• The ICC should ask both the parties to acknowledge the receipt of the notice of hearing.
• The ICC should explain the allegations levelled against the accused to both parties. 
• The admittance or non-admittance of charges against the accused should be recorded by the ICC. 
• The ICC should issue a notice to either of the parties who are not present for the hearing and give a reasonable time to appear for the second hearing. The said notice should include the consequence of non-appearance of either party i.e. the decision to be taken ex-parte. 
• The ICC should disclose the list of witnesses submitted by parties. 
• The ICC should also brief the parties on the decorum of the hearings and advise both parties to maintain civility and respect for the committee and the respective parties.   
• The provision of confidentiality of such proceedings should be reminded and enforced to the parties.  
• The date of subsequent hearings shall be informed at the end of each hearing.  
• At the end of each hearing, the order sheet should be signed by both parties and all committee members.  
• All subsequent hearings shall include the presentation of witnesses and evidence. Each party shall be allowed to establish their case and all the principles of natural justice shall be followed by the ICC. 
• The ICC shall have the responsibility to judge on the presentation of evidence, admission of evidence, rejection of evidence, recording of deposition of witnesses etc.

The presentation of evidence does not have any specific methodology or process specified; however, the ICC may follow the below process for a systemized flow:

• Documentary evidence of the complainant 
• Oral evidence of the complainant 
• Defence of accused 
• Documentary evidence of accused
• Oral evidence of accused

Additionally, it is pertinent to mention that the ICC has powers of a civil court for summoning and enforcing the attendance of witnesses, for examining persons on oath and for compelling production of documents. This can be simply explained in the following situations:

• If the complainant does not attend the hearings, in spite of repeated notices and requests, the ICC can dismiss the complaint itself. 
• If the defendant does not attend, the ICC can give an ex-parte decision after providing due notice to the parties. 
• If a witness does not attend, the ICC can strike the name of the particular witness from the proceedings and also any portion of the submissions in relation to that particular witness shall have to be dismissed. 
• Any document pertaining to an allegation, if not submitted even after repeated summoning, will be dismissed by ICC.

The Sexual harassment of Women At Workplace (Prevention, Prohibition and Redressal) Act, 2013 provides that an employer shall be responsible for assisting the ICC in securing the attendance of witnesses, concerned parties and production of documents.

Another important aspect of the hearings is the Examination and cross-examination of the witnesses. Generally, the same includes the following:

• Direct examination or examination in chief

In this, the witness is questioned by the party who has called him/her. 

• Cross-examination

In this, the witness is questioned by the opponent.  

• Re-examination

Under this method, the party who originally called the witness shall examine the issues raised in cross-examination by questioning the witness.

Step 3

Final order and recommendation

The ICC has a responsibility to conduct all the hearings with a just and reasoned mind. The decision that is arrived at shall have a huge impact on the parties involved. The decision will affect the financial, reputational and mental aspect of the concerned parties. Keeping in mind all the factors, the ICC should give a reasoned decision and issue the order in writing specifying the reason behind the recommendations and the punishment given. Some important aspects of an order are provided below:

• Description of parties 
• Facts of case 
• Issues 
• Admittance of any allegations 
• Submission of complainant 
• Submission of accused
• Brief of documents referred; witnesses deposed 
• Assessment of the evidence taken into consideration
• Deliberations of ICC   
• Recommended punishment 
• Reasons for such punishment

Conclusion

The aim of an ideal world is to flourish in a society where evils of sexual harassment and gender discrimination do not exist. The aim is to co-exist peacefully and have a productive and safe work environment.

In the meantime, while such incidents continue to happen, the ICC constituted by the organization should be a committee which is well prepared, aware, and legally bound to provide justice in a situation which is unjust by itself.

There shall be no justice if the ICC decisions are disputed in further proceedings and shall only add to lengthy litigations and distress for all involved. 

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

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This article is written by Anirudh Vats, second year student at Rajiv Gandhi National University of Law, Patiala. This article will lay out what actually constitutes bullying and the different ways it can manifest itself. It will also discuss the various laws which govern bullying in India and how they have evolved.

Bullying

What is Bullying?

Bullying implies an intention to harm, intimidate or coerce an act when there is an imbalance of power and the act is a cause for distress and provocation. Bullying may be verbal, physical or mental in nature and a whole spectrum of acts can constitute bullying. 

It can become a source of trauma for children and young adults and remain with them their whole lives, often leading to mental distress and depression, and in extreme situations, even suicide.

What is central to bullying is an imbalance of power dynamics. Bullies are usually physically stronger than the people they bully. It can be described as a show of strength to undermine or denigrate someone’s dignity to gain sadistic pleasure out of it. 

What most people don’t know, however, is that many people who show violent behaviour and engage in bullying, themselves have low self esteem and are insecure and anxious.

Bullying is a common phenomenon in schools and universities throughout the country and there has been a concerted effort to put an end to bullying and ragging in our educational institutions.

Bullying Meaning in Hindi

डराना-धमकाना, बदमाशी,  दादागिरी, भयभीत करना, झिड़कना, धमकाना, सताना, भयभीत करना, तंग करना, दुख देना, धौंस देना, धौंसियाना

Bullying in Schools

CBSE School Bullying Protection Law

Anti-Bullying Committees

In 2015, due to rising cases of bullying in schools, the Central Board of Secondary Education (CBSE), issued guidelines for the prevention of bullying which included the mandatory setting up of Anti-Bullying committees in schools. These committees would comprise of the vice-principal, a senior teacher, school doctor, counsellor, parent-teacher representative, school management representative, legal representative and peer educators.

The roles and responsibilities of this committee would include:

• Development and review of School Bullying Prevention Plan,
• Development and implementing bullying prevention programmes,
• Developing training programmes for staff, students, and parents,
• Creating awareness through various programmes,
• Being vigilant and observing signs of bullying and responding quickly and sensitively. Names  and contact numbers of members of the committee should be clearly displayed everywhere in the school premises, etc.

Counsellors

The guidelines also suggest schools to employ trained counsellors to deal with people affected by bullying, be it the victim, the perpetrator or any other student affected by it in any way. This guideline is issued to provide the emotional support that a child needs to cope with bullying and to provide professional help to help him/her overcome it. 

Along with general counsellors, some suggest that mental health experts should also be employed in schools to deal with issues of depression, anxiety and mental distress that a child goes through when affected by bullying in any way.

The guidelines of the CBSE recommend that there should be different counsellors for Primary, Middle and Secondary Schools as children of different ages face different challenges and are at different stages in their mental development.

A Primary School child may is more likely to be bullied physically but a Secondary school student may be prone to more complex forms of bullying like bullying on the basis of race, religion, or sexual orientation.

Counsellors need to be specialized in order to recognize the different stages of mental development at different ages in children, and therefore there needs to be multiple counsellors in the school.

The guidelines also suggest increased involvement of counsellors in residential schools, which have a much higher probability of children being bullied, mocked or assaulted. In residential schools, it is imperative that wardens and members of the school administration remain vigilant to the changing dynamics of student interaction within the hostel environment, which is much different from a classroom scenario.

Counsellors need to have a collaborative attitude towards the children they deal with, not just the victims of bullying but also the perpetrators. The children need to feel like they can confide in the counsellors, only then will they relay their own insecurities, reservations and motivations behind their behaviour.

Often, due to social stigma and fear of physical or mental harm, children who are victims of bullying do not easily open up about their experience and hide whatever they have gone through. In this scenario, children can easily shut themselves out from even their loved ones.

To tackle this, they should be able to trust the counsellors enough to share their experience and try to reconcile and get over what they have been through.

Appointment of Sentinels/Monitors/Peer educators

The guidelines also advise the school to appoint Sentinels and monitors from within the student community, preferably from the Prefectorial Board or the Student Council of the school. These students need to be sensitized as to the gravity and seriousness of bullying, and need to be on a constant lookout for any violent behaviour amongst the students.

Their role, however needs to be collaborative and passive. Any cases of bullying they become aware of, need to be reported directly to the relevant authorities, and if an incident occurs in their presence, their involvement needs to be preventive in nature and polite towards all parties so as to dissipate the situation as quickly as possible.

The onus to educate and spread awareness about bullying and how to deal with it lies on the school. Schools need to take initiatives, conduct seminars, conferences, interactive sessions between seniors and juniors and instil a sense of collaboration and unity among the students.

The guidelines also provide for the presence of peer educators, who must be trained in Life Skills, to better arm students with the practical know-how to deal with a violent or dangerous situation. It is their duty to also provide moral education to sensitize students towards their ethical responsibilities and potentially dissuade violent behaviour in students.

Developing a Positive Attitude Through Value Education

According to the guidelines, apart from tangible ways of tackling bullying, schools also need to head in a moral direction. A stage needs to be reached where students are not dissuaded from engaging in bullying due to fear of punishment, but because they realize that what they’re doing is ethically wrong and develop a moral barometer.

The guidelines say that children need to be educated about “human rights, democratic values, respect for diversity and equality, and respect for the privacy and dignity of others.” 

This can be done through organizing assemblies, interactive sessions, and Q and A’s where experts and teachers try to educate all parties and stakeholders in the school, be it the parents, the students or the teachers themselves.

These are the specific areas in which the guidelines advise educational initiatives to focus on:

• Adolescence and puberty related education
• Education on values, morals and ethics of being a student
• Human rights and duties
• Gender sensitivity, differences and awareness
• Building up of self worth and self esteem
• Importance of empathetic and compassionate values
• Developing interpersonal communication skills and appropriate social behaviour
• Coping with stress, anxiety and emotional distress
• Control of anger and violent tendencies
• Resisting peer pressure

The guidelines also advise school to use art to get through to students when it comes to social issues like bullying. This can take the form of stage plays, nukkad nataks, special assemblies, poster competitions, drawing or painting competitions, training programmes, debates, elocutions etc.

Parent Teacher Meetings

Another important guideline suggests the increased usage of parent-teacher meetings to gain a better understanding of the child’s situation, and let the parents be aware of the climate and surroundings their child is inhabiting, and how to better help him/her cope with bullying.

Another purpose that these meetings would serve is to trace the cause of problematic behaviour in children. Often what happens is that the behaviour children exhibit stems from their home environment and the behaviour of their parents. Increased coordination between teachers and parents will help gain an insight into the motivations a child has when he engages in acts of bullying.

The family background is essential in the emotional and psychological development of a child. Parents are also one of the primary stakeholders in a school and need to be sensitized about the dangers of bullying and violent behaviour in kids. 

Parents need to be included in the initiatives taken up by the school against bullying. It needs to be conveyed to them that it is of utmost importance that they report any incident of bullying they come across to the relevant authorities.

Orientation programmes need to be conducted for the parents as well, to instil a sense of responsibility towards the children as well as the school.

It is only through the collaborative effort of the school administration, the parents and the student community that the problem of bullying can be tackled successfully. Therefore, parent-teacher meetings are a must to begin tackling the problem of bullying in schools.

Prevention and Redressal Mechanisms

According to the guidelines, the methods of prevention are as important as the methods of intervention. This can be achieved through the methods elucidated earlier and also through the increased responsibility and accountability of the school. A sanction based system is not adequate to deter bullying, there should be an active effort to prevent incidents from occurring in the first place.

A clear cut process needs to be established as to the investigation of a bullying incident. After proper investigation, an appropriate punishment or penalty needs to be meted out which should be just, fair and adequate and should not be challenged in practise.

Comprehensive guidelines may be developed for School Management which includes the various actions and penalties which may be taken by the School Management as per observation and understanding the gravity of the misconduct. Some of the recommended actions include:

1. Oral/written warning.
2. Suspension from attending classes/school for a specified period.
3. Withholding or cancelling the results.
4. Imposition of fine upto a specified amount.
5. Expulsion/rustication from school in rarest of rare cases.
6. The option of transferring a student from one school to another school may also be looked into.

It is imperative that the punishment must be in proportion to the crime committed. Therefore, a comprehensive system of progressive penalties, fines and punishments need to be established.

Promoting an atmosphere of confidence and trust

The guidelines also provide for the setting up of a complaint/suggestion box in which the students can contribute their own opinions and viewpoints with the assurance of anonymity.

Good suggestions could be read out in assemblies and good behaviour should be rewarded.

Focus should be put on developing communication skills from primary schools. Children should feel that they can trust their teachers completely and develop an emotional connection with them from an early age.

Strategies should be developed to make the school a more inclusive, accepting and collaborative place for children.

Other guidelines in the law

• If a child is found engaging in bullying, a written warning will be handed out to him, and after enquiry he/she can be rusticated from the institution.
• Also, every school is to have a notice board on which the penalties and repercussions of bullying are clearly laid out.

Bullying in College

UGC Circular

The University Grants Commission (Hereafter, UGC), on account of increasing bullying-related suicides, issued a landmark notification in 2009 to curb rampant ragging throughout higher-education institutions in India. 

There has been three amendments made to the circular, and it remains the primary government statute which pertains to ragging in higher education institutions.

Definitions

The UGC has given three definitions of ragging, they go as follows:

1.Any disorderly conduct whether by words spoken or written or by an act which has the effect of teasing, treating or handling with rudeness a fresher or a junior student.

2.Indulging in a rowdy or undisciplined activities which causes or is likely to cause annoyance, hardship or Psychological harm or to raise fear or apprehension thereof in a fresher or a junior student.

3.Asking the students to do any act or perform something which such student will not in the ordinary course and which has the effect of causing or generating a sense of shame or embarrassment so as to adversely affect the physique or Psyche of a fresher or a junior student.

Measures for prevention

The circular makes it mandatory for every college to display overtly on every brochure, circular or form it releases pertaining to admission in that university, the fact that ragging and any activity which promotes or supports ragging is prohibited and strict action will be taken against anyone who engages in such activities.

The brochure of admission should print all the relevant regulations regarding ragging in full.

It should also include the numbers of the anti ragging helpline, the head of the institution, the anti ragging cell of the university, District and Sub Divisional authorities, Wardens of hostels.

The application of admission should also contain a form which is mandatorily to be filled up by any student and signed. It should contain the student’s agreement that he understands the rules and regulations against ragging and promises to abide by them.A similar form is to be read and signed by the parents of every student as well.

The circular requires that at the start of every academic session, the head of any institution to convene a meeting of wardens, anti ragging cells, student representatives and faculty members to discuss and deliberate on improving and solidifying measures against ragging. The onus is on the college to spread awareness about the dehumanizing effect of ragging and related behaviour. Every department, building hostel etc. must have posters and circulars elucidating the strict policy against ragging. 

The circular requires colleges to identify vulnerable areas throughout the campus and keep a constant vigil in these areas. Tightening of security in areas like the hostel, or any other secluded areas is imperative.

All institutions should conduct discrete random surveys every two weeks for the first three months of the academic year in the hostels, with special focus on the junior years and the freshers. It does allow every institution to formulate its own methodology as to the surprise surveys.

If an institution is affiliated to a parent university, then the head of that institution needs to submit a weekly report of the university’s adherence to and practise of the Anti Ragging measures to the Vice Chancellor of the parent university and a monthly report thereafter. The Vice Chancellor in turn needs to submit a fortnightly report to the State Level monitoring cell. These are essential steps to hold the Universities accountable for not just applying these rules but also ensuring that they are correctly and efficiently implemented. The submission of reports to higher authorities keeps these universities under constant scrutiny and thus keeps higher institutions in check and constantly clamping down on ragging related activities.

Procedure in case of a complaint

If the head of an institution receives information of a ragging related incident, either from the Anti-ragging committee or through an individual complaint, he immediately needs to ascertain whether any penal laws apply to the incident or if any section of the IPC has been violated.

In case of violation, he also needs to make sure which sections apply to the particular incident, and then file a First Information Report (FIR), either on his own, or through a member of the Anti-Ragging committee authorized by him.

Separate from this, an internal investigation needs to be carried out by the college authorities on their own accord. There is no need to wait for the police or the local authorities to get involved, the college has absolute authority in investigating a ragging charge in its own capacity and mete out adequate punishment.

The penalty, fine or punishment imposed by the college is separate from the criminal proceedings that will be carried out against the perpetrator.

Duties and responsibilities of the UGC

• The UGC would be responsible to operate a toll-free helpline for ragging related incidents which would be operational at all times and accessible to students who might be victims of ragging related incidents 24×7.
  This initiative is truly commendable as it offers an instant option for students to find some help, which may be in the form of information, moral support or even emotional help. Students might sometimes be hesitant to report an incident to the college authorities due to fear of physical or mental harm by their tormentors. The helpline number can also act as a contingency for emergency, and is a pivotal step to students entertaining thoughts about self harm or suicide. To improve the helpline, what can be done is to train the operators with the skills to handle a situation where a student is in emotional distress and thinking about self harm. The Anti ragging helpline number is 1800-180-5522.

• Any complaint or distress message received by the helpline will promptly be forwarded to the Head of the concerned institution, the warden of the hostel, the Nodal officer of the affiliating university. If required, depending on the seriousness and immediacy of the incident, the message can also be relayed to the District magistrate, the Superintendent of Police and all other concerned district authorities. The message would also be relayed to the media so that the general public becomes aware of it.

This prompt action on the part of the Commission authorities is of utmost importance. Often, what happens is that universities, in an attempt to save its reputation and image in the eyes of the public, try to shut down cases of ragging and prevent them from getting out in the public domain. The use of this helpline and the subsequent action by the operators on behalf of the UGC, ensure that information about the incident reaches not only the general public, but also the administrative authorities which are concerned to pursue legal investigation.

• The commission shall maintain a database which would consist of the affidavits      submitted by the children which are promptly signed and affirmed by their parents. This database would also catalogue any complaints forwarded by or towards any student and would also update the information about the investigation conducted in reply to these complaints. Such a record is essential as it helps in ascertaining the statistics of ragging related incidents in the various surveys which happen on a regular basis. It also keeps a record of the investigation done with regard to these incidents, which is essential to ensure due process.
• The commission shall also make this data available to a non-governmental agency, which is to be nominated by the central government. This is essential because the database is of no use if the general public cannot access it and hold the relevant authorities responsible for any discrepancy in the investigation procedure, any inadequacy of effort or any excesses during the investigation. The public availability of the database is essential to ensure transparency and accountability towards the general public.

Other Regulatory steps to be taken by the UGC

1. Any incident of ragging related incidents in college will directly affect the accreditation or the grade received by the university, be it from the The National Assessment and Accreditation Council (NAAC) or any other recognized accreditation agency involved in ranking or grading of universities. This is another monumental step by the UGC, as it provides immediate incentive for the colleges to dissuade and eradicate ragging from their campuses. Prevalence of ragging on campus not only affects their reputation and image but negatively affects their ranking and credibility, which is a tremendous motivator for colleges to take prompt action against ragging.
2. The Commission also has the right to treat preferentially the institutions which have a spotless record when it comes to ragging, be it in the form of permits, financial grants, etc. 
3. The commission shall also constitute an Inter-Council committee, which would act as a parent committee for various other committees and consist of representatives from individual Anti – Ragging committees as well as from the appointed Non-governmental agency in charge of the official databases. The duties of this inter council committee would be to form new rules, regulations to make Anti Ragging law more extensive and effective, and constantly strive to implement the measures more effectively at the ground level.
4. The commission shall constitute an Anti- ragging cell within the commission which would provide secretarial support and coordinate with State level monitoring cells and University level committees as well as the Non-governmental agency in charge of database monitoring to achieve better ground level implementation of the Anti-ragging measures.

Stepwise Administrative action in the event of Ragging

1. The first step is that the Anti-Ragging committee of the university shall take appropriate decision as to the guilt and subsequent punishment of the perpetrator, subject to the facts of the case and the urgency and gravity of the incident which has occurred.
2. One of the following punishments can be given to the perpetrator, depending on the facts and the gravity of the crime:
   a. Suspension from academic privileges and barring entry to attend classes.
   b. Withholding or withdrawing any financial benefits, scholarships or fellowships which may be attributed to the student.
   c. Withholding results or marks in examination.
   d. Banning the student from representing the university at the local, national or international level in any competition, festival or event.
   e. Suspension or expulsion from the hostel.
   f. Cancellation or withdrawal of admission in the university.
   g. Rustication of the student for anywhere between 1 to 4 semesters depending upon the seriousness of the crime.
   h. Expulsion from the university and debarring from taking admission in any other institution for a stipulated period of time.
3. An appeal can be made against the decision of the committee in the following conditions:
   i.) In case of an order by the institution, affiliated or otherwise, to the Vice Chancellor of the University
   ii.) In case of an order to the Chancellor of the University.
   iii.) In case of an institution of National Importance created by an act of Parliament, to the chairman or chancellor of the university, as the case may be.

Administrative Negligence

In case a faculty member, warden of the hostel, member of the administration or any other official affiliated to the university, fails to report adequately about an incident, shows neglect or disregard for the incident occurred, tries to silence victims to save face, or display an apathetic or dismissive attitude towards ragging related activities, will be held accountable for their actions.

A departmental disciplinary action, as per the procedure of the institution will be conducted against such member of the administration and appropriate action will be taken.

In case the negligence of the administration is attributable to the head of the institution, the authority to designated to appoint the head of that institution will carry out the disciplinary proceedings. 

It is imperative that these proceedings be completely free of bias or conflict of interest. This is because, often the administration of universities have a mutual understanding with the immediate authorities that govern them, and the proceedings could be compromised.

Thankfully, there are measures against something like this happening in the circular as well.

In case an institution  fails to take adequate steps to prevent or deter ragging and related activities, fails to adequately punish the guilty, or conducts compromised and biased disciplinary actions against people who mishandled the situation, then the commission has the right to take the following steps:

1. Withdrawing or cancelling the right of said institution to receive grants by the government.
2. Withholding or taking back any grant or financial benefit already allocated to the university.
3. Declaring the institution ineligible to receive any special or general assistance which the UGC grants to higher education institutions. Be it in the form of grants, financial benefits, or logistical support.
4. The UGC can declare to the media and the general public as well as to potential admittees in the university that the University is unfit for admission as it does not take adequate measures against ragging, and can even declare that the University does not meet minimum academic standards.
5. It can also take any other action, pose a penalty, or adequate fine, as the commission may deem fit in accordance with the seriousness of the negligence by the university.

Amendments to the circular

First Amendment

The first amendment to the circular happened in 2012 and was nominal in nature. The words “UGC regulations on curbing the menace of ragging in higher educational institutions were replaced with “Curbing the menace of ragging in higher educational institutions regulations.”

A few other words were replaced throughout the circular, but were merely nominal.

Second Amendment

The second amendment made the circulars and forms which are to be signed and affirmed by every student and his/her parents were made more extensive and far-reaching.

Third Amendment

The third amendment was the only amendment which made a substantive change to the circular. It added in a new clause Para 3 clause 3 of the circular. It read as follows:

3 j.) Any act of physical or mental abuse (including bullying and exclusion) targeted at another student (fresher or otherwise) on the ground of colour, race, religion, caste, ethnicity, gender (including transgender), sexual orientation, appearance, nationality, regional origins, linguistic identity, place of birth, place of residence or economic background. 

Therefore, it can be seen that the circular of 2009 was a monumental and historic step against ragging in India, and changed the attitude of universities, the media as well as the general public towards ragging in India.

Earlier, ragging was considered a part of “college life”, and students were expected to just bear with it. But this colossal legislation, as well as the cases and incidents which triggered the drafting of this legislation, has slowly but surely been changing the outlook towards ragging as a reprehensible activity.

A student nowadays has enough redressal to any untoward incident that happens with him, and even if the administration of his college fails him, there is redressal to be sought from higher authorities and strict action can and will be taken against anyone who has engaged in ragging and related activities.

Relevant Sections of Indian Penal Code

College students who engage in bullying or ragging are over 18 years old and capable of committing criminal acts, therefore sections of the Indian Penal Code are applicable to them. 

Some of the sections they may be found guilty under are:

• Ss. 506 (Punishment for criminal intimidation)

Criminal intimidation occurs when a person threatens another individual to injury to body, reputation or property, and in turn coerces him/her to do an illegal act or something that he/she would not normally do.
A common occurrence in cases of ragging is the threat to bodily harm or a spread of false rumours about someone if they do not obey and follow the instructions of the raggers.
Criminal intimidation is also used by offenders to coerce students to not report the incident that has happened

• Ss. 323 – 326 (Causing hurt and grievous hurt and the punishments for the same),   etc. In cases resulting in the death of the victim of bullying or ragging,
  This is self explanatory. Almost every serious case of ragging involves causing hurt of some kind to another person voluntarily and in full knowledge of his/her actions.
  Many juniors across medical, engineering and other colleges have to face physical abuse and sometimes have to endure for long periods of time.

The constant threat of physical harm also prevents them from reporting the abuse to relevant authorities and they are often socially isolated and unable to seek help from any external individual or organization.
Causing grievous hurt also in extreme scenarios can sometimes result in the death or permanent disability of the victim.

• (S. 304) The sections of the IPC dealing with culpable homicide,
  Culpable Homicide is one of the most serious crimes under which a ragging case can be booked.

Unfortunately, it is not that uncommon. Seniors in colleges across the country, often in inebriated states, cause such serious harm to juniors while committing ragging, that it results in their death.
We saw examples of this in the cases of Pon Navarasu, Aman Kachroo and Ajmal PM, which are discussed below.

• (S. 306) Abetment of suicide may apply.
  This is also a common section under which ragging offenders are charged. Many students from around the country are driven to committing suicide because they are exposed to such serious forms of violent and abusive behaviour by their seniors in college. The mental harm caused by the abuse and ragging builds up and compounds over time, due to the continuous and repeating nature of the offences and takes the victim to a point where he feels completely helpless and does not see a way out of his predicament. It is indeed a failure of ours as a society, that a child stuck in such a tragic situation, finds no help from the college authorities, the legal authorities or even his own parents.

Bullying at Workplace

Bullying is generally observed as acts or verbal remarks that could mentally hurt or alienate an individual in the working environment. Once in a while, tormenting can include negative physical contact too. Bullying more often than not includes rehashed occurrences or conduct that is proposed to scare, outrage, corrupt or mortify a specific individual or gathering of individuals. It has likewise been depicted as the statement of power through coercion.

Some examples of Bullying in the workplace are:

• Spreading untrue and ill intentioned rumours, gossip, or innuendo.
  This may seem like a trivial point but it is not. What constitutes bullying? Are two people talking about another person in a negative light amount to bullying? Obviously it doesn’t. People are entitled to their opinion and have freedom of speech and expression. But when a person makes a statement about someone which is untrue, endangers the reputation or moral credibility of someone and amounts to defamation, it can be considered bullying. As earlier discussed, bullying is often paired with an imbalance of power. In the workplace, a scenario can arise where a person who is higher in the professional hierarchy, targets a person under him in designation, stature and by implication, power and denigrates the dignity and reputation of that person. Often , in these situations, the aggrieved party is not in the position to socially hold his superior accountable and his position often deprives him of the confidence to legally sue the perpetrator. 

• Excluding or alienating someone socially.
  This is another way in which individuals are bullied. Although, most bullying in the workplace happens when a superior bullies a subordinate, this kind of bullying can occur among peers.
  This sort of bullying is not limited to the workplace, and occurs in any social environment which is mildly competitive in nature.
  Whenever people interact socially, they are bound to form groups. These groups can often turn hostile towards each other ( called relational aggression) and sometimes a whole group can engage in a concerted effort to isolate and alienate a certain individual. 

This can arise out of that individual being different or unconventional in his mannerisms, being overly competent or focused, or because he suffers from social anxiety. This usually plays out in that person becoming socially isolated, with people openly ignoring him/her and mistreating the individual, strengthened by the public opinion against him.

This isolation can affect a person tremendously. When a person finds himself completely isolated, neglected and ignored by his social environment, and any protest against this turns into hostility against him, it can cause severe mental distress. This affects productivity, focus, emotional stability, and it becomes impossible for someone to survive in an environment like this for long.

• Coercing a person to do an act.
  This is one of the most common forms of bullying in the workplace. People misuse their positions of power on a regular basis in corporate environments.
  Suppose a business professional is working under a superior and his boss asks him/her to do menial or laborious work (making coffee, running a personal errand of the boss) which would suit a clerk or an office boy, and it is unethical and insulting to ask a professional to do an act. Naturally, the person refuses to do said act.

In reply, the boss threatens to fire him or deny him a promotion. Often, people do not have any redressal when they are caught in a situation like this because the power of the superior is too immense and one has a lot to lose. The choice is between doing a menial task which might be beneath your capability or even morally wrong and completely endangering your professional career.

Sometimes the act may be even more severe. There have been cases all around the world where bosses have asked female employees for sexual favours in return for a promotion or a pay raise. After the coming up of the Sexual Harassment of Women at Workplace Act (2013), these cases are better governed. But just because a legal provision exists, does not mean that it is successful in deterring violations. What needs to be considered is that the majority of Sexual Harassment cases are not reported due to the imbalance of power and coercion and blackmailing by people in positions of authority.

What ensures the continuance of such bullying is the fact that it occurs in private corporate spaces and there is no external authority governing nor is there a proper redressal or complaint system within the corporation.

Therefore, to resolve these issues, there needs to be increased accountability of people in positions of power even in private spaces. There also needs to be a shift in the attitude of society towards mistreatment of employees. There is a general consensus among the corporate workforce that to get ahead in any profession, you need to be a boot-licking sycophant and be ready to do any and everything for your superiors.

• Undermining or sabotaging a person’s work.
  Sometimes superiors develop an opinion or bias against someone and as a result seek to actively downplay their efforts and not reward them adequately for the tasks that they do.
  This amounts to bullying because it discredits the merit and the competence of a worker, and he is not rewarded for the work that he does.
  Sometimes, a boss may even actively sabotage someone’s work so as to favour someone else or because of an inherent prejudice or bias.

• Physically abusing or sexual harassment.
  This is perhaps the most serious misuse of power that occurs in a workplace. This type of bullying usually happens against women, and is an issue of grave concern in modern workspaces.
  There needs to be a radical change in how we perceive working women and society as a whole is complacent about the atrocities committed against women in corporate environment.

• Constantly changing work guidelines and requirements.
  This is another common form of overworking and oppressing a worker, constantly giving new instructions, rendering previous work useless and not valuing the effort of someone is a common form of bullying in the workplace.

• Making unrealistic deadlines that set up the individual to fail.
  Such practises are very prevalent in the cut throat competition of the corporate world, where it is a general practise to overwork people and offer them deadlines that are unrealistic and impossible for an individual to meet

• Withholding necessary information or purposefully giving the wrong information.
  This can be done among peers as a way to sabotage the progress of someone. This is also prevalent in workspaces,

• Making jokes that are offensive by spoken word or e-mail.
  Mocking or ridiculing someone is one of the most common disguises bullying takes on, as it is often socially accepted and even encouraged. Good natured humour aside, jokes are made on a person’s race, colour, ethnicity, gender, sexual orientation etc. which denigrate the dignity of an individual and lower his self worth.
  Such jokes often reek of bigotry and small-mindedness but nevertheless result in bullying because they are considered acceptable by the social environment.
  There is no place for such practises in a professional workspace, and therefore such practises should be strongly discouraged.

• Intruding on a person’s privacy by pestering, spying or stalking.
  Recently, the Supreme Court declared the Right to Privacy as a fundamental right. It is imperative in these connected times to ensure your privacy, because it is harder than ever in today’s era to shield your private life from public scrutiny.
  From stalking on social media to accessing emails, people use many tactics to spy on others and gather information to use against someone.

• Underwork – creating a feeling of uselessness.
  It is important for a person to feel like he is of worth and doing a job which is contributing in a substantial way to the final product or the corporation.
  But with increasing specialization and high degree of division of labour, people often end up feeling like their cogs in a great machine and are of no use to anything worthwhile.

This breeds a sense of dissatisfaction in the employee and he is alienated from the world. This is a more passive form of oppression in the workplace.

Other examples:

• Yelling or using profanity.
• Criticising a person persistently or constantly.
• Belittling a person’s opinions.
• Unwarranted (or undeserved) punishment.
• Blocking applications for training, leave or promotion.
• Tampering with a person’s personal belongings or work equipment.

There is no law which deals directly with bullying in the workplace but there are other laws which regulate behaviour of individuals in a work environment. 

There are many labour laws which ensure a certain level of social security and the maintenance of the dignity of an individual at the workplace. 

There also exists the Sexual Harassment of Women at Workplace Act (2013) which establishes strict legal sanction on any incident of harassment of women, be it physical, verbal or mental in nature. It also places strict measures on inappropriate behaviour in the workplace and has gone a long way to ensure the safety of working women in the country.

Bullying Types

Verbal

Verbal bullying may include personal insults, slurs or name calling on the basis of racial or ethnic backgrounds, or even homophobic or sexually coloured remarks. Verbal bullying is one of the most common forms of bullying and can lead to a lot of mental trauma in the victim and impair his social life.

What needs to be understood is that words have a lot of power. Words work in an insidious way, slowly but surely, when a person is subjected to constant verbal abuse, their self image gets destroyed and their self esteem becomes low. Gradually, they start becoming low on confidence and start to see themselves through other people’s eyes.

The harm is primarily psychological, where constant insults and bullying makes a person feel hopelessly alone, and they start resenting the world and the people around them. This resentment grows and festers, and can come out in a lot of ways.

Some people turn to self harm or start displaying suicidal tendencies. Others lash out violently towards others in their life, be it their family, their closest friends or their loved ones. Their emotional stability is affected and they become perpetually on edge and anxious.

This psychological harm can manifest in physical harm as well, as many mentally disturbed and emotionally unstable people turn to intoxicants and other chemical inhibitors to cope with their predicament.

Alcohol, marijuana related products, even hard drugs like cocaine and heroin pose grave dangers to the physicality of a person.

An example of verbal bullying in schools could be calling a less sporty or physically inclined person a wimp or a nerd, and other derogatory insults which affect the self worth and esteem of a person.

Another common occurrence is when a person has effeminate mannerisms and is subjected to constant homophobic and bigoted comments from his/her peers and socially isolated and ridiculed. Comments on the Gender and sexual identity of a person can really make it hard for a person to accept his sexual orientation and in extreme situations, he/she may even start to doubt their sexual orientation and actively try to change it or hide it, which may have adverse effects on them throughout their life.
Often,children find themselves incapable of tackling a situation where they are cornered and bullied on a regular basis. In this scenario, an external authority, be it the parents or the school administration, needs to come to the child’s aid and help him out.

How can parents help their children tackle verbal bullying?

• The first and obvious step is to inform the school administration of the behaviour of the bully(s). Parents need to realize that the onus is on the school to eradicate such behaviour and need to hold the administration to their responsibility. Parents should regularly keep checking with the school authorities and follow up with their children as to the behaviour of problematic students.
• Resisting suggestions to simply ignore the bully. This is a common advice given to children who are subject to bullying in schools. The assumption is that bully(s) would be deterred on not getting a reaction. But this often not what happens. Bullies are strengthened when they know that they are mentally affecting someone, and this is the impression they get when a sufficient reaction to deter them is not present. Children should not have to hide or endure the harassment or abuse that they face. There should be prompt action taken against such bullying by the relevant authorities.
• Encouraging your child to participate in social and extracurricular activities is a great way to develop pro social behaviour in children and prevent them from being socially isolated.  Bullying can often breed loneliness in children and developing healthy social habits in children and values like respect, teamwork, collaboration etc. can go a long way in keeping the child emotionally stable and at peace.

Physical

Physical bullying includes hitting, kicking, tripping, pinching and pushing or damaging property. Physical bullying causes both short term and long term damage. This is the most primal expression of power, that is, physically harming someone. This sort of abuse, apart from causing injury also leads to low self esteem and a loss of confidence in the victim of such a heinous act.

A distinction needs to be made between an act of violence and physical bullying. An isolated act of violence doesn’t constitute bullying. Bullying occurs when the same person is victimized repeatedly. There also needs to be an intention to hurt, intimidate, control or dominate the other party. Another prerequisite of bullying is that there needs to exist a real or perceived imbalance of power, arising out of brute physical capability of the oppressor or his higher social standing. 

Middle school is the time when physical bullying really starts to take shape. This is the time when children start becoming socially active,start getting affected by their peers and start forming strong friendships with each other. This is also the time children start to develop serious hostility towards each other which may sometimes take the form of violence or bullying.

Physical bullying almost predominantly happens among male children. Boys tend to be more physically promiscuous and are likely to show violent behaviour.

Students who bully others are often lacking in qualities like compassion, empathy and respect. If they are not controlled and socialized properly, then these tendencies can mutate into something more serious and sinister, like criminal behaviour when they are adults.

Often, students suffering from physical bullying recede into themselves and do not open up, even to their families or loved ones. Following are some signs that your ward may be suffering from physical bullying:

• Finding bruises, cuts or other inexplicable injuries on a regular basis
• Torn or broken books, bags, stationary and other possessions
• Coming back from school without a tiffin, bottle or stationary etc. and claiming it is”lost” on a regular basis
• Complaining of frequently not feeling well before school or school activities
• Skipping classes and bunking school
• COnstantly not wanting to go to school, coming back home after hours and perpetually being in a bad mood
• Acting sad, depressed or anxious
• Withdrawing from others
• Saying they feel picked on
• Displaying low self esteem and worth
• Lashing  out at family members in spurts of anger and showing resentment for no reason
• Wanting to run away or escape constantly
• Trying to take a weapon to school
• Showing suicidal or self harm tendencies

Social Bullying

This is a more covert and subtle kind of bullying but one which may isolate a person even more than other forms of bullying. This occurs when there is a concerted effort on the part of people in the social vicinity of an individual to ridicule, insult, or try to destroy the reputation of a person.

This may occur behind the back of a person and might slowly lead the individual into a situation where he/she might start mistrusting everyone around and feel alienated and alone.

In a national survey done by BullyingUk, it was found that 55% of young people surveyed have experienced social bullying. Of those who have been cyberbullied, 36% were left out on purpose and 51% had false rumours spread about them.

• Spreading false rumours or baseless gossip about an individual.
• Encouraging others to isolate or alienate someone and ignore them.
• Leaving someone out constantly and encouraging others to do the same.
• Socially excluding someone online, cyberbullying, negative comments on posts and images.
• Damaging someone’s social reputation or social acceptance.
• Using humiliating nicknames and continuing when asked to stop.

Why do people engage in social bullying?

1. Attention seeking behaviour: When people organize in groups, they often engage in attention seeking behaviour, this may be cracking jokes, constantly picking on someone, or any act to separate themselves and gain the attention of their peers
2. Impressing someone or attracting the opposite sex: Misled boys often believe that if they assert their dominance among their peers and constantly pick on someone to attract the attention of the opposite sex.
3. Compensating for low self esteem, confidence or having anger issues: This is another common reason why people engage in social bullying. People who need validation for their own low self image and lack of confidence, turn to depraved ways of picking on someone weaker to assert their identity and gain attention. People often have violent tendencies in their nature, which may arise from their domestic family situation which they are acting out on people weaker than them.
4. They are victims of bullying themselves: This is another common reason why people bully. In the past, they may have been subjected to a similar situation and developed a resentment due to it. This resentment often festers into something more serious and then that person replicates the same behaviour he was subjected to, displaying his/her own twisted idea of revenge.
5. Arising out of jealousy and envy: sometimes people are jealous or envious towards a certain individual, maybe due to his looks, his ability, talent or competence and you target them by bullying them to assert your dominance in front of them.

An individual caught in such a scenario often sees no way out of his predicament, but there are some ways you can tackle this difficult situation:

1. Recognize your friends: A true friend would never engage in socially alienating or isolating you. Analyze your relationships and figure out who among your peers actually cares about you, your aspirations, your interests and believes in you. Start spending more time around people who are more welcoming, compassionate and understanding towards. Build your own social safety net, and keep your dearest friends close to you. If there is a person or a group of people around whom you feel uncomfortable, or if you feel like they pick on you or mock you too much, then stop spending time with them and cut their toxicity out of your life. Slowly but surely, if you start filtering your social relationships, you will start feeling more comfortable in social scenarios and regain your confidence and self esteem.
2. Ask for Help: This is the most obvious and yet for many, the hardest step to take. Your closest friends and family are always there to help you, take care of you when you’re going through a tough time and help you regain your self-belief. But often, when someone is subject to social bullying, they recede into themselves and do not take the help or seek advice from their family.
   Talk to anyone with whom you are comfortable expressing your vulnerabilities and struggles with. Just the act of sharing your predicament can go a long way in helping you cope emotionally with what you are dealing with. 
3. Get Involved: Join Group activities, try to find people with similar interests as yours and become socially active in a healthy way. Fight the urge to recede into yourself and cut off from the world. Participating in social activities can take your mind off the bullying or abusive behaviour you might be going through.
4. Be Yourself: This is also of utmost importance. People’s negative opinions can impact you so much that you can start believing that you are exactly what they say you are. It is hard to maintain your own distinct identity when you are facing social bullying, but it is paramount that you stay the way you are and do not change yourself due to social pressure or a need to fit in.

Cyber Bullying

A study led by Microsoft Corporation in 2012, spread over 25 nations positioned India third in the quantity of internet cyberbullying cases.

As indicated by the 2014 investigation led by the Internet security organization, McAfee, “Half of the young in India have had some experience with cyberbullying.”

The 2016 Norton Cybersecurity Insights Report expresses that 51% of guardians around the globe consider online bullying to be as likely as being bullied at school or work.

Cyber bullying can be overt or indirect. It utilizes computerized advancements, including equipment, for example, PCs and cell phones, and programming, for example, internet based life, texting, writings, sites and other online stages.

Cyber bullying is sometimes seen as a less harmful form of bullying which exists online and does not manifest itself physically in the world. It is often dismissed as being just a “couple of comments online”, which are easily ignored.

This is a problematic opinion. Cyberbullying can be intimidating, dangerous, invasive and very real to the people who go through it. 

People often say “Just turn off your phone and don’t think about it” but it is not as simple as that. The digitization of our daily lives has led us to be dependant on our phones, and most of our friendships and relationships are dependant on our phones. In this scenario, when there is an effort to destroy someone’s reputation online, the effect ripples into people’s lives and their relationships.

Therefore, cyber bullying is a grave concern in contemporary times.

Cyber bullying can occur whenever. It can occur in public or in private and once in a while just known to the objective and the individual bullying. Cyber bullying can include:

• Damaging or destructive writings, messages or posts, pictures or recordings.
  The age of social media has made our life public. In this scenario, people often try to publicly shame others by posting compromising or private material online for the world to see.
  Recently, many celebrities have been blackmailed by hackers who have got hold of private photos or messages and have subsequently leaked them online as well.

Questions arise about the danger social media websites pose to the privacy of people.

• Spreading false rumours or gossip tidbits.
  This is the oldest trick in the book to destroy someone’s reputation, but this becomes an even bigger problem when it happens on a social media website because it is available for the world to see. 

• Hacking.

An individual/a gathering of individuals, who has the requisite knowledge about technology, hacks into your web based life/web accounts. For the most part, this occurs with not well-secured accounts, similar to the ones with a straightforward password.

• Social Media impersonation.

This is normally joined with hacking, and it implies that somebody is professing to be you, either hacking and utilizing your record, or making a phony one. This is a thing to stress over, on the grounds that that “somebody” could lie or post inappropriate things!

• Spam

This is truly irritating, in light of the fact that this implies somebody is sending to you messages/messages continually, as a rule with substance that doesn’t intrigue you/it’s inappropriate, at the point that it gets truly irritating. At present, there are various approaches to abstain from spamming, such as “blocking” the individual.

Relational Aggression

Relational aggression (RA) is an intangible form of social bullying whereby the wrongdoer’s goal is to inflict or threaten damage to relationships, including harm to the victim’s social standing or reputation. This form of aggression may result in long-term psychological harm to victims.

Relational aggression is another form of bullying which occurs when there is a deliberate attempt to manipulate or sabotage a person’s social standing. Research has found that although such aggression is prevalent among both genders, it is more apparent and deliberate in females.

At the preschool level, relational hostility is probably going to come as continuous threats about what another girl needs to do to keep up a friendship. Superficially, this doesn’t sound like much, and it likely happens because of an absence of friendship-starting aptitudes, immature social association abilities or past companion dismissal bringing about low confidence. On the off chance that these dangers happen day by day (and even on different occasions multi day), the tyke goes too far from a social abilities mistake to harassing in an undercover, relational manner.

Girls can experience low confidence, side effects of anxiety and depression, fear of going to class, they might even decline to go to class, and inescapable dejection because of relational hostility. At times, girls may have self-destructive musings. In the event that you presume that your little girl is liable to relational animosity, escape.

Bullying Examples

Bullying can occur in a lot of different scenarios and situations. These are a few examples:

Cyberspace

• Adolescents mock one of their teachers for being overweight in a video posted on the web, which is transferred, forwarded and shared by countless Web users. The man endures outcomes that influence him in his expert and individual life.
• A university student routinely gets messages or emails calling him a “loser”. He starts to avoid social event and starts being intimidated by different students and skips his classes increasingly more frequently.
• Somebody posts a private photograph of a lady on the Internet. She feels embarrassed and wronged. She makes a futile attempt to stifle the photograph.
• Repeating unfair remarks about First Nations and Inuit are distributed in response to articles on the web.

Family

• A young lady is always maligned, insulted and exploited by her step brother. She feels a loss of dignity due to his derogatory attitude to the degree that she loses her appetite stays away from the common areas of the home and permanently resigns to her room.
• A man who is losing his financial independence consistently acknowledges to offer money to his daughter in spite of his low pay, since she threatens to quit running errands for him (basic food item, drug store, and so forth.), an administration that enables him to continue living at home, on the off chance that he doesn’t give her the sums mentioned. He is also physically disabled, and needs someone to run menial errands for him which are physical in nature.
• An older ladies is compromised verbally by her child, with whom she lives. She is apprehensive for her security, however does not report him, especially in view of the family tie that ties them and her dependence on her child for her health and well being.

School

• A young man who does not coordinate or identify with the sexual stereotypes is routinely called a “fag” by certain students in the cafeteria and the rec center. Different students begin to overlook him and he experiences alienation and seclusion. He searches for each conceivable method to maintain a strategic distance from these spots.
• A Black youth is the objective of rehashed racist abuse by a gathering of young school students. He doesn’t have an inkling how to respond, begins receding into himself and experiences issues concentrating, which has negative ramifications for his school results and his prosperity.
• A young lady with a mental inability much of the time has her tuque, umbrella or boots stolen on the school transport. She frequently cries during the trek and has assaults before going to class.
• A child with autism spectrum disorder is regularly trailed by a gathering of students who impersonate and fake him. The understudy being referred to ends up anguished.
• A trio of students consistently coerce another student in school to give them his lunch. The understudy being referred to does not report the circumstance, dreading retaliations.
• False bits of gossip on the sexual conduct of an adolescent young lady are spread at school and via web-based networking media. The young lady feels mortified. She never again needs to go to this school and is regularly missing without approval.
• A juvenile young lady declares that her sweetheart was “stolen” by another young lady and sets her entire group against her.

Sports environment

• At the field, a mentor always affronts and compromises a youthful referee during a hockey match-up. A few guardians and parents pursue his model and include start denigrating and insulting the referee and question his decisions. The youthful referee turns out to be progressively anxious and reluctant.
• Maligning graffiti consistently shows up on the storage of a gay competitor. She doesn’t feel acknowledged by her partners and feels alone, which induces her to relinquish preparing and rivalry.
• At whatever point their groups contend with one another, a basketball player pushes a rival and takes steps to ambush him off the court. The focused on player is concerned for his well being.
• A soccer mentor in every case openly embarrasses a similar player to get more prominent endeavors from her. The competitor is humiliated to show up before her colleagues.

Work

• A contractor feels scared, in light of the fact that he gets calls and dangers from a competitor who needs him to pull back from a call for tenders.
• A patient specialist from an ethnocultural minority works in a seniors’ habitation. She is consistently the objective of disagreeable remarks by occupants, which instill a sense of fear and affects her confidence and professional relationships.
• The associates of an older worker consistently propose that it’s the ideal opportunity for her to resign, which makes her accept that her abilities are being questioned. She accordingly starts avoiding collaboration and interactions with her colleagues and never again steps up to the plate.

Neighbourhood

• A neighbor normally insults the individuals from a family who as of late moved into the area and vandalizes their property in light of their ethnocultural background. The family doesn’t feel welcome and the circumstance is upsetting for every one of its members The guardians inquire as to whether they should move once more.
• In a rental structure, a neighbor continually threatens the guardians of a medically autistic kid that he will get them evicted if their son continues making noise. The guardians dread he will accomplish his aim and the circumstance makes them anxious, particularly since their youngster has an extraordinary requirement for peace and stability.

Raghavan Committee Report

The Raghavan Committee was set by the Human Resource Development ministry on the direction of the Supreme Court of India and it submitted its report in 2007.

Examples of ragging

• Any demonstration that averts, upsets or irritates the academic activity of an understudy ought to be considered within the academics related part of ragging; comparatively, misusing power to force a junior student to finish the academic tasks relegated to an individual or a gathering of seniors is additionally a part of academics related ragging pervasive in numerous foundations, especially in professional institutions of medicine.
  This was in retaliation to the prevalent practise in medical institutions around the country to get your academic work done by junior students and coerce them to complete the work assigned to you by making them fear punishment in the form of mental or physical violence. Although this practise is not limited to medical institutions, that is where it is most prevalent.
• Any form of financial coercion or extortion or forcing a junior student to pay for something or use him/her as a source of money is to be considered ragging as well. It is often the practise in institutions to make juniors pay for certain goods or to coerce them into lending money, this is to be considered ragging too.
• Any act of physical violence, sexual abuse, homosexual assaults, stripping, forcing obscene and lewd acts, gestures, causing bodily harm or any other danger to health or person can be put in the category of ragging with criminal intention. This is the most intense form of ragging and is to be considered criminal behaviour on the part of the perpetrator of such an act.
• Any demonstration or maltreatment by expressed words, emails, snail-sends, open abuse ought to be considered with in the psychological parts of ragging. This viewpoint would likewise incorporate determining sadistic delight, vicarious or twisted rush from effectively or inactively taking part in putting down other people; the absence of reading ‘freshers’ as an introduction to their admission to advanced education and life in hostels additionally can be attributed as a psychological part of ragging – adapting aptitudes in communication with seniors or outsiders can be conferred by guardians also. Any demonstration that influences the mental wellbeing and self-assurance of understudies likewise can be portrayed as far as the psychological part of ragging.

Observations of the committee

Inaction of College administrations

The committee studies hundreds of cases and incidents of ragging as part of its deliberations, and not even in one of the instances, had the college authorities approached the police or local authorities even in the most extreme of cases which involved bodily harm or death of a student. In most cases, the complaint was filed by the parents of the victim and there was no involvement of the college authorities. 

Overall, after hearing the testimony of various parents and students, the committee observed that the response of colleges to cases of ragging has been dismal, prompt action has not been taken and no attempt has been made, in any incident whatsoever, to approach the law and order machinery to seek justice for the victims and punish the wrongdoer.

The committee observes that there is a pertinent need to make colleges more accountable for the acts of ragging that take place inside them and make them more sensitized to the issue of ragging.

Lack of Civil Society initiatives

The committee also observed that there were little to no initiatives taken up by the wider society to increase the awareness about ragging. Societal indifference is prevalent in India as there is a general view among people that ragging is just a part of college. Even when extreme cases come to light, in which students lose their lives or commit suicide, society still remains complacent to the menace that is ragging.

During the research, the committee could not come across more than 2 or 3 NGO’s which were dedicated to addressing the problem of ragging and spread awareness about it among the General public.

The committee observes that without enough societal involvement, educational institutions alone cannot rid the higher education system of the menace of ragging. There needs to be a paradigm shift in the thinking of people when it comes to ragging. Rather than seeing it as a sort of ‘rite of passage’ to get through university, it should be seen as a completely unacceptable practices which should be severely punished and discouraged in society.

Rise of off campus incidents

The committee observed that in recent years, due to the expansion of capacity in colleges, especially engineering colleges, has led to the rise of off campus lodgings for students. A lot of severe and heinous forms of ragging occur in these off campus hostels, where there is no external authority regulating behaviour. These lodgings are unknown both to the college administrations as well as the local police.

The colleges do not think that it is their responsibility to ensure the safety and wellbeing of students who don’t reside in campus, and this allows for a lot of ragging which goes unpunished and unreported.

The committee observes that it is of no material whether a person resides in campus or not. Authorities, both the college administration as well as the local police hold as much responsibility towards a student staying off campus as one staying in it, and it holds the colleges accountable for any act of ragging, regardless of where and in what capacity it occurs.

The use of technology

The committee observes that a lot of incidents of ragging are prevented in college campuses because of the communication facilitated by mobile phones. Students use their mobile phones to call someone for help, maybe a peer, a friend or even family. 

The use of  phones can also allow students to utilize the helpline (discussed earlier) against ragging and therefore get prompt redressal and justice for the wrong that they have undergone.

The committee asserts that the banning of phones in various institutions, on account of it being a distraction and a nuisance, is not practical and is a bit far fetched.

The committee wants to allow the use of mobile phones so as to allow students to communicate and seek help for whatever it may be that they are going through.

Need for counselling

The committee observed that there is a complete lack of professional counsellors in higher education institutions, which leads to students going unprepared into an alien social scenarios and often finding themselves lost and becoming a victim of violent behaviour or bullying and ragging.

There needs to be professional counselling at the start of every academic session to help freshers initiate into a new social environment, and arm them with some tactics to face any potential ragging they might experience and what steps to take if they do.

Counselling is not just for victims or potential victims but also for potential or repeat raggers. If a person is a known ragger and has already been punished before, he should receive consistent counselling to dissuade him from his behaviour.

Teachers, administrative staff, wardens etc. should also identify potential raggers based on their behavioural tendencies and provide them with the guidance that they need.

Influence of politics and power

It was promptly brought to the notice of the committee that in remote territories, wards of compelling families associated with political parties, local administration, exchange and business, land-owning classes and other power first class enjoyed most disgraceful demonstrations of ragging and escaped without any penalty. The Committee was informed that partners cutting crosswise over areas- institutional specialists, workforce, senior understudies, the administration, the common expert, non-showing staff and so on- can control or avoid ragging through a coordinated exertion. The Committee was likewise informed that even as it should be an aggregate duty, a noteworthy offer of such obligation should lay on the leader of the establishment. The advisory group likewise seen that the specialists of the State and the Central Governments capable for executing and checking the counter ragging arrangements had not carried out their responsibility agreeably.

Lack of co-curricular activities in college

The Committee thinks about that the instructive and academic condition in grounds did not support exercises wherein the understudies can connect with themselves in scholarly, social and physically and socially important interests. Based on the sources of info got at the different hearings, it was seen that in the greater part of the cases ragging occurred because of not connecting with understudies in classes; long interim between progressive classes; absence of co-curricular or sports and other additional curricular exercises; absence of severe usage of participation rules for senior understudies; and absence of observing of the air and the earth at eating ‘joints’ (canteens, cafes, and so on). So, it demonstrates the decree – an ‘inactive personality is the fallen angel’s workshop’. The explanation behind this situation must be found mostly in the declining designation of money related assets to schools and colleges throughout the years bringing about the close nonappearance of booked additional curricular and co-curricular exercises. A few intra-university, between university, intra-college and between college sports and different rivalries have well near vanished. Scholastic exercises have likewise throughout the years stopped to be as demanding and testing to continue student enthusiasm, leaving them with relaxed hours to take part in unwanted exercises.

Pressure to not report

It was brought to the notice of the Committee that it is practically incomprehensible for a junior or a fresher to file a complaint against a ‘ragger’ with the proper experts. We were informed that unrealistic pressure of coercion, intimidation and threats is put on the individuals who are ragged. Most noticeably awful is the predicament of the hostel occupants who can not look for security from any quarter. It was viewed as assessment of practically all the partners that the Committee should devise available resources so as to keep up the anonymity of the ‘ragged’ so suitable and exceptional move ought to be made against the ragger, without risking the identity of the person in question.

In some cases, even colleges and universities dissuaded individuals from reporting an incident that has occurred, this is because colleges want to save face and protect their reputation and image.

Law enforcement mechanism and college authorities have to work together

An enormous number of portrayals and proposals received by the Committee have drawn our consideration that if law enforcement agencies are not intimately connected to the local college authorities, it is hard to contain the ever increasing number of coercive forms of ragging that are developing. It was additionally again brought to the notice of the Committee that the types of ragging recorded by the UGC Committee in 1999 have progressed toward becoming ‘outdated’ or ‘dated’ in light of the fact that incredibly foul, most cruel and unprintable types of ragging are being employed nowadays. In one of the outrageous cases that the committee received from Kerala (from one Shri TVK Warrier of Palakkad), it was fought that police.

officials ought to be posted as wardens! The anguish at the deteriorating and saddening situation is justifiable because ragging has now accepted unreasonable, perverse forms – physical ambushes, unjust control, utilization of criminal power, extortion, terrorizing and disavowal of fundamental human rights. It was proposed to the Committee that the proposals of the UGC Committee with respect to disciplines or preventive measures have not been actualized and have stayed uniquely on paper – that school functionaries consider ragging as a non-scholarly issue and along these lines did not get included either because of apathy or because of an absence of responsibility. 

It was suggested for the benefit of the Kerala Private College Managements Association that the Head of the College or University Department ought to be “bound by law to make a move if a criminal offense is committed against the students” who cloth. It was called attention to that Heads of establishments are hesitant to act “dreading the politically based student associations”, in light of the fact that “often  the miscreants are supported by one or the other student organizations”. A few guardians have proposed that Wardens and Heads of Institutions ought to be considered responsible for their inability to control rowdy conduct on the part of the students.

Increased parent teacher interaction is needed

The Committee considered for discussion the plausibility of amending  the Indian Penal Code so as to accommodate the offense of Ragging and discipline thereof. As indicated by section 40 of the Indian Penal Code, subject to special cases set out in statements 2 and 3 of that section, “offense” signifies a thing made culpable under that Code. Taking into account that the senior school leaving age is 18 years, both the ‘freshers’ and the senior students ragging them are adults. From the different records of how ragging happens, what prompts ragging, the expectation of the individuals who submit ragging, the injury endured by its exploited people, the attractive quality of its counteractive action and so forth., the Committee is fulfilled that ragging fits the depiction of an offense with multiple ingredients.

Debate on the meaning of ragging and how it breeds an atmosphere of fear

Literature on ragging tells us that it is used as a sort of ritualistic practices to initiate someone into a new social group. This is known as ‘hazing’ In the United States of America and Canada. It usually involved making someone do something humiliating, embarrassing or denigrating and often meaningless as a sort of pass to gain entry and make acquaintances with a new group of people who have more power than you and are higher in the social ladder (mainly due to their seniority). This practise is known as fagging or ragging in Britain and its commonwealth.

It is mischaracterized as a sort of good natured, collaborative activity which breeds loyalty and camaraderie but in actuality, according to the committee, it violates the dignity of an individual and also their fundamental human rights. The biggest violators of and abusers of human rights are students of engineering, medical and military colleges. Students in these universities have been allowed to run scot-free both by the college authorities as well as the law enforcement machinery. This complacency of the system as well as the general public and wider society has led to children suffering tremendous tragedies and suffering, be it physical or mental, and have regularly lost their lives.

The committee instead came up with an alternate definition:

“Ragging is an act of aggression committed by an individual or a group of individuals over another individual or a group of individuals where the former, by virtue of their being senior to the latter, somehow gets the authority and audacity to commit the act and the latter, by virtue of their being new to the institution, are automatic victims.”

The committee disregard seniority as a valid measure of authority and regards all students as equal in their stature and power. Therefore, seniors in any institution have no authority of any sort over any of their juniors.

The committee also asserts that ragging continues and flourishes because there is a culture of fear which as developed around it. For so many years, students have been allowed to do as they please with their juniors, which often causes great harm to them, that any new students coming in to these institutions are conditioned to believe that they have to be subject to it to and that the best way to survive it is to do as your oppressors say and be devotedly obedient.

This culture of fear also protects the criminals, who know that they have instilled enough fear in their juniors to make them refrain from reporting the crime to the relevant authorities, and therefore children suffer in silence with no support from those who are meant to protect them.

Study of State Laws on Ragging

Definitions by various State Law

Maharashtra Prohibition of Ragging Act, 1999:

“Display or disorderly conduct, doing of any act which causes or is likely to cause physical or psychological harm or raise apprehension or fear or shame or embarrassment to a student in any educational institution.”

Kerala Prohibition of Ragging Act, 1998:

“Teasing, abusing or causing hurt or asking students to do an act which he is unwilling to do.”

Tamil Nadu Prohibition of Ragging Act, 1997

“Ragging means display of raucous, rowdy or disorderly conduct, doing any act, which causes or is likely to cause physical or psychological harm or raise apprehension or fear or shame or embarrassment to a student in any educational institution and includes teasing, abusing of, playing practical jokes on or causing hurt to, such students; or asking the student to do any act or perform something, which such student will not, in the ordinary course, willingly do.”

The West Bengal Prohibition of Ragging in Educational Institutions Act, 2000

“Ragging means doing of any act, which causes or is likely to cause, any physical, psychological or physiological harm or apprehension or shame or embarrassment to a student and includes teasing or abusing of, playing practical jokes on, or causing hurt to, any student, or asking any student to do any act, or perform anything, which he would not, in the ordinary course, be willing to do or perform.”

Assam Prohibition of Ragging Bill, 1998

“Ragging means either display of noisy or disorderly conduct or doing of any act which causes or is likely to cause social, physical or psychological harm or raise apprehension or fear or shame or embarrassment to any student in any educational institution and includes teasing, abusing of, playing practical jokes on or causing hurt to, such students; or asking the student to do any act or perform something which such student will not, in the ordinary course, willingly do.”

Goa Prohibition of Ragging Bill, 2006

“Ragging means display of disorderly conduct, doing any act, which causes or is likely to cause physical or psychological harm or raise apprehension or fear or shame or embarrassment to a student in any educational institution and includes teasing, abusing , threatening or playing practical jokes on, or causing hurt to, such students; or asking a student to do any act or perform something, which such student will not, in the ordinary course, willingly do.”

The committee observed that in none of the state law was there a mention of the sexual aspect of ragging which goes on in institutions. Recently, these cases have ramped up in number, where both males and females are made to strip or to expose private parts and in extreme cases they are also coerced to perform sexual acts.

The law also needs to incorporate the changing face of ragging in the country. Ragging has evolved from menial pranks and meaningless, harmless and non violent acts into serious offences involving crimes like sexual assault, criminal intimidation, homicide etc.

The law needs to realize that ragging is no longer a nuisance or an irritant, it is an ever growing and expanding menace which is destroying higher education in this country and harming the growth and development of college-going students.

Recommendations of the Committee

1. Need for strong and uniform ragging law.
   The various state laws that exist around the country contain various aspects of ragging but are inadequate and incomplete on their own. These various state laws as well as the recommendations made by the committee and other authorities need to be incorporated into one comprehensive law which governs all aspects related to ragging.
   This will decrease ambiguity as to what actually constitutes ragging  and lay out one uniform procedure of investigation and punishment to pertain to all higher educational institutions.
   The purpose of this law will not just be to incorporate all the laws related to ragging but to also strengthen these laws and make them more concrete, exhaustive, expansive and easier to follow.
2. Surprise checks and spontaneous anonymous investigations should be carried out to regulate ragging and encourage students to report incidents.
   The onus is on the college authorities to conduct regular checks and surveys into the situation of ragging not just in the classroom but in the hostels as well, both on and off campus. The colleges should also conduct surveys where they should regard junior students as respondents with a guarantee of anonymity. This will encourage students to get past fears of retribution by their seniors in case they report an incident and seek redressal for any wrong they may have been subjected to.
3. Setting up of anti-ragging cells at central, state and within the college as well.
   There needs to be a hierarchy of authorities at play to make the system more comprehensive and efficient. This hierarchy should be mutually dependant but also keep each other in check. At the lowest level, there should be an institution based Anti Ragging cell. This should consist of members of the faculty, the Head of the Institution, the Hostel wardens etc. their duties and aims should be laid out concretely. They should be directly answerable to a state level anti ragging cell. The state level cell will check the excesses or the inaction of college authorities clamping down on ragging. If the State Level cell finds that the college is suppressing cases of ragging, not taking appropriate action against, discouraging or coercing students to not report incidents, or just generally showing a lacklustre attitude towards eradicating ragging, then the state committee can take action against the college authorities and initiate departmental action on them. They can also report matters to the national level committee as well as the UGC for further action like cutting down on financial benefits, aids and grants for the institution in question.
   Such a network of hierarchical institutions will create a web of accountability which is essential in a society where every stakeholder in higher education is complacent about the dangers of ragging and ragging related activities.
4. A new section should be added to the IPC against ragging.
   The Committee prescribes that as opposed to exposing every occurrence of ragging to an alternate section under different areas of the Indian Penal Code, another segment ought to be added to the IPC, making ragging a culpable offense on the relationship of section 498A managing cruelty towards women (against dowry related episodes). It is clarified that ragging is an offense with a variety of fixings, every one of which establishes an offense culpable under the current arrangements of the Indian Penal Code. We further prescribe that the Indian Evidence Act ought to likewise be appropriately corrected on the relationship of area 113A of that Act, to move the burden of proof on those blamed for ragging.
   The committee recommends that there be a comprehensive section which incorporates all the various essentials and requisites of an act to be considered ragging. The offences to be considered are abetment to ragging, criminal conspiracy to rag, assault as well as sexual offences or even unnatural offences, extortion, criminal trespass, unlawful assembly and rioting while ragging, injury to the body, causing hurt or grievous hurt, public nuisance created during ragging, violation of decency and morals through ragging, wrongful restraint, wrongful confinement, use of criminal force, offences against property, criminal intimidation. Any act which commits or attempts to commit any of these wrongs is to be appropriately punished for it.
5. Recommendations as to the procedure of investigation.
   The Committee regards the autonomy of academic institutions and accepts that to the degree potential episodes of ragging of ‘freshers’ by seniors ought to be managed under the pervasive laws or statutes and the methodology recommended thereunder or under the arrangements of the important State law. In any case, where the person in question or his/her parent/watchman isn’t happy with the move made by the Head of the institution or by other institutional authorities, or where the Head of the institution is of the feeling that the occurrence should be so revealed, it must be obligatory for the institution to document a First Information Report with the neighborhood police authorities.

Such reports ought to likewise be made to the civil Authorities, (for example, Sub Divisional Magistrate, Deputy Commissioner or District Magistrate), the higher Police Authorities (Commissioner or Superintendent of Police or his Deputies) and furthermore to the media for more extensive spread. In episodes of extraordinary repercussions or grave seriousness, such reports ought to likewise be made to the suitable State Authorities. Media reports may now and again arouse the enthusiasm of civil society activists and Non Government Organizations, whose inclusion in handling episodes of ragging or the avoidance of such occurrences must be invited and not viewed as any prevention.

Colleges and State or Central Governments ought to likewise urge institutional authorities to share data in regard of ragging, instead of hiding any episode where no one will think to look; we accept that revealing data about occurrences of ragging adds to the counteractive action and repeat of such occurrences, while endeavors to conceal just outcome in progressively unreported episodes occurring and matters gaining out of power for the authorities. 

The Committee expects the sub-divisional, locale and divisional or State level authorities additionally to share data as opposed to preventing access to data for the media and the civil society.

Duties of the UGC

At the National level, we prescribe that the University Grants Commission ought to be in charge of planning and checking the counter ragging movement throughout the country and ought to establish a Board for Coordination comprising of the accompanying: 

• Representative of the AICTE,
• Representative of the IITs,
• Representative of the NITs,
• Representative of the IIMs,
• Representative of the MCI, 
• representative of the DCI, 
• Representative of the NCI,
• Representative of the ICAR ,
• Representative of the Veterinary Council,

and such different representatives from other areas of advanced education that are not spoken to in the institutions referenced previously.

The Committee has effectively communicated its regret that even though the Apex court in the country came up with comprehensive guidelines sic years previously, neither the UGC nor any of the statutory experts in the various areas of advanced education have focused their attention in managing the hazard of ragging. 

The UGC ought to establish an institutional instrument – for example, a Cell inside the Commission to give secretarial help to gathering of data and checking. There ought to be no postponement on this record in any capacity whatsoever, the Cell ought to be cut out of its current secretariat and should organize with the State level and University level Committees for successful execution of hostile to ragging measures. 

The UGC and the other statutory experts ought to mediate any place their current rules or scholastic guidelines come in the method for execution of the recommendations being made in this report.

The Commission and the other subsidizing bodies ought to likewise give satisfactory assets to universities and colleges for completing the order of controlling occurrences of ragging.

It should arrange with the other statutory experts (AICTE, MCI, DCI, ICAR, NCTE, NCI and so forth) so opportune guidelines are sent by such specialists for empowering or ordering institutions to anticipate and deny ragging just as to make a move against institutions that endure or don’t report occurrences of ragging. The UGC and the other financing organizations ought to likewise work out an instrument of giving awards in-help where institutions effectively avert events of ragging or where stern action is taken by institutions against ragging episodes.

1. Setup of toll-free helpline for ragging victims.
   The committee prescribes that at the national level, the UGC should support a toll-free Helpline which could be accessed by students in trouble or danger due to or from ragging related occurrences. The Ministry of Communication and Information Technology ought to encourage the foundation, framework and activity of the proposed Helpline. Any trouble message ought to be at the same time transferred to the Head of the Institution, superintendent or official of the Hostels, District specialists including the Superintendent of Police,  ought to be well connected to their surroundings and local area so that the media and the residents can access the are easily. A certifiable message of action by the UGC should make it required for the Head of the foundation and common specialists to start activity on the lines previously proposed by the committee.
2. NCERT, SCERT school books must contain a chapter on the dangers and excesses of ragging.
   It was recently made mandatory in the NCERT and SCERT curriculums to include a subject on environmental studies. In a similar fashion, there needs to be a subject about the dangers of ragging and bullying, and the ethical and moral problems related to it. From an early age, children should be armed with the ethical knowledge to dissuade them from engaging in such activities and should also be aware of the steps they can take if they ever face such a situation in real life.
   Our education system is based on rote learning, and that is where the problem lies. Moral education and ethical dilemmas should also be an integral part of the school curriculum, so that along with academic knowledge, children also develop their individual moral barometers, and be able to separate right from wrong from an early age.
3. Psychological counseling on anti-ragging and human rights at senior secondary level.

The committee prescribes that each institution ought to connect with or look for the help of professional advisors or counsellors at the season of admissions to direct ‘freshers’ so as to set them up for the life ahead, especially for changing in accordance with the life in lodgings. The Committee feels that getting students ready for college life will empower them to adapt to the worries of the heretofore obscure life in university.  Professional Counsellors ought to brought in to counsel potential raggers likewise, who ought to be distinguished by the institutional specialists, showing personnel and non-educating workers.
The committee additionally suggests that the UGC and other financing bodies must make special arrangements and allocate funds to empower institutions to draw in advocates, advisors, counsellors and mental health experts and try to eradicate the sense of fear among freshers and help them build confidence.

Colleges are required to organize session between seniors and juniors which help them cooperate and interact better.
The committee observed that a lot of ragging takes place off-campus and there is no restriction or measures against it as college administrations are not concerned with any act which takes place off campus. Therefore, the committee also took measures to curb which takes place outside the campus.

The hostels or private guest houses which house college students must be registered in the local police station, and the management and the college administration is to be jointly held responsible for any untoward incident that happens. The Committee prescribes that in the light of the expanding number of private industrially overseen lodges or hostels outside campuses, such hostels and management must be enrolled with the local police specialists and authorization to begin such hostels or registering them with local authorities which should be overseen  by the Heads of instructive organizations. 

It ought to be obligatory for both local police, local organization also the institutional experts to guarantee vigil and ensure the safety and wellbeing of the students residing in these private hostels and there should be prompt action taken in case of any instance of ragging related activity. Managements of such private hostels is obligated to reporting of instances of ragging in such premises and strict action will be taken against these managements if they show complacency or inaction when it comes to ragging. Local experts just as the institutional heads ought to be in charge of activity in case of ragging in such premises, similarly as they would be for occurrences inside campuses. 

The Committee likewise suggests that other than enrolling private hostels as expressed over, the towns or urban areas where educational institutions are found ought to be allotted as a collection of different sectors among employees, as is being finished by certain establishments, so they could keep up vigil in their prescribed areas and report any episodes of ragging outside campuses.

Are Bullying Laws effective

Bullying Statistics

The Teacher Foundation recently conducted a survey which found shocking results related to Bullying in schools. Around 47 percent of school-going children between Classes 4 and 8 confessed to having been bullied by their peers. This has been uncovered in an investigation directed by The Teacher Foundation (TTF) to comprehend the social and emotional learning status of school kids the country over. The survey was carried out during a time period of six years, and included instructors and students from government and non-public schools.

While students communicated that they were bullied on grounds, some even conceded being associated with bullying others. According to the report, around 26 percent students in Classes 4-8 confessed to ridiculing or bullying other youngsters. The figure remained at 22% in Classes 9-12.

The review even featured the ‘feeling left out’ factor. that children experience at this age. Around 23 percent students in Classes 4-8 students communicated that they felt left out during mid-day breaks or the play hour. This figure was 14 percent in Classes 9-12.

The study featured that “students of both age groups showed some trouble managing peers not quite the same as them, and making companions in general.”The study is likewise an Indian Social and Emotional Learning Framework (ISELF) for schools and instruction foundations the country over. This six-year-long concentrated research required more than 3,300 students and 850 instructors at 15 unique areas and covering 90 schools, incorporating a couple of regions in Karnataka.

These figures show that almost 50% of children our bullied at some stage in their school life. This is a worrying figure, as many consider bullying an outlying, rare phenomenon in school environments, but to the school going children who actually experience it, it can often be the norm and a common occurrence.

We need to reassess our priorities as a society. Have our educational institution completely failed in guaranteeing the safety and wellbeing of our children? Are we ready to send our children into hostile environments which can be immensely damaging to them? These are pertinent questions which still remain to be answered.

Ragging Statistics

Recently, in reply to a query, the UGC released the statistics for incidents of ragging in HIgher Educational Institutions in the country and the results were staggering.
Instances of ragging on college and college grounds enrolled an untouched high in 2017 with institutions announcing 889 cases.

The number is an expansion of 70% over last year’s figure of 515. Uttar Pradesh topped the list with 138 cases- up from 93 a year ago- trailed by Madhya Pradesh with 100, up from 55 a year ago.

As far as the quantity of cases announced from individual institutions since 2012, Banaras Hindu University beat the rundown with 36 cases, trailed by MP’s Maulana Azad National Institute of Technology that enrolled 31 cases. West Bengal additionally enrolled an expansion from 50 to 92 cases of ragging in 2017.

These are worrying signs for students across the country. For more than a decade, there has been a concerted effort on the part of the legislating authorities to formalize, concretize and expand the law regarding ragging and how to deal with. 

Despite of that, this sudden spike in ragging shows that the system is once again turning complacent towards ragging and related activities.

Moreover, out of 872 cases in 2017, only 390 of those students were punished, which is less than half.

This goes directly against the Raghavan Committee recommendations which recommended that even the smallest and most menial of cases should not go unpunished if we are to successfully deter students from engaging in ragging. 

It also shows that the college authorities are not showing enough seriousness when it comes to prosecuting and punishing offenders, and there is widespread inaction and apathy towards cases of ragging.

Implementation Problem

Till a few years ago, there was not a sufficiently comprehensive law regarding ragging. There were individual state laws which were ambiguous and incomplete and there was no uniform process of investigating ragging incidents as well.

Over the last 15 years, with the help of the Raghavan Committee Guidelines, as well as the monumental UGC Circular in 2009 for curbing the menace of ragging i n higher educational institutions, we have slowly but surely moved towards a comprehensive legal framework to deal with cases of ragging.

Now, we can say that we have enough legislation to successfully prosecute ragging without any ambiguity.

But the problem seems to be lifting the words of law off the paper and putting it into practise in real life. Although we have sufficient legislation, we have not succeeded in providing these provisions to people and their individual experiences.

Ragging still remains a rampant problem, especially in medical and engineering colleges, and gruesome and saddening cases of ragging come out of these institutions on a regular basis.

This problem of implementation reveals that there is a lack of will among these institutions to clamp down on ragging which is helped by the fact that there is societal complacency and apathy regarding ragging.

This harks back to the earlier point that their needs to be a rise in the collective societal conscience, if we are serious about eliminating ragging from the experience of college-going students.

Government Helpline

Every police department now has a dedicated cyber crime cell which is devoted to catching and prosecuting online criminals who post derogatory, compromising or defamatory messages online or hack into your account and subsume your identity.

You can find your local district helpline number here, as well as the address and email id of the relevant authorities.

How to prevent bullying

Some suggestions are:

• Implementing the guidelines of Raghavan Committee.

The findings and suggestions of the Raghavan Committee are a set of exhaustive solution which have practical applicability and are pragmatic and realistic in nature. But implementing this substantial document into the daily lives of a student is another matter altogether. Implementing the guidelines on the ground, however, is of utmost importance and must be achieved if we are to eliminate the evil of ragging in our country.

• Holding college and school administrations and local authorities responsible and increasing accountability.
  College administrations have for decades suppressed cases of ragging, neglected them and shown complacency and inaction, and even coerced students to not report cases of ragging.
  The current state of ragging exists because there has been a collective failure from all stakeholders to mitigate and manage the growth of this menace. Be it the local magisterial and executive authorities, the college administrations, and even the parents of children, every stakeholder has fallen sort of doing their obligation to prevent bullying and ragging. 

Schools need to be even more careful, as they often deal with bullying in children at a very young age. If a child goes through something truly traumatic at a very young age, it affects him in serious ways mentally. He may develop an inferiority complex, or another mental disability or illness which may last for the child’s lifetime. Therefore, the school has immense responsibility when it comes to cases of bullying to take strict action and react swiftly.

• Ensuring mental health experts and counsellors are present across schools and campuses.
  Children often don’t receive the care and support that they need when they are subjected to ragging. The presence of counsellors in campuses is of utmost pertinence to provide kids with the immediate emotional and psychological help to get over the trauma that they have faced. Counsellors also work as a preventive measure against students who show violent behaviour regularly or are repeat offenders of ragging.
  Mental health experts and general counsellors in schools are of great importance as children are not as emotionally mature as adults, and violent behaviour can affect them much more seriously.
• Proper redressal mechanisms have to be in place.
  Students often find themselves feeling alienated and without any means for seeking help, either because they have a fear of bodily or mental harm in case they report to the relevant authorities, or because the administration neglects cases of ragging and does not act sufficiently to give redressal.
  There needs to be a definite, concrete process of investigation against cases of ragging which must be strictly implemented by educational institutions and overseen by a systematic hierarchy of authorities with checks and balances at every level.
• Strict penalties and punishment.
  Ragging is sometimes committed under a mask of having an “introduction” or interaction with seniors and in actuality, is just the same as ragging. College authorities should recognize that all forms of ragging are unacceptable and have no merits whatsoever. To dissuade ragging, strict sanction should be imposed on students. Punishments should be proportionate and progressive, but even the smallest and most menial of offences should be appropriately sanctioned so as to dissuade students from engaging in any form of ragging whatsoever.
  Punishments may range from imposition of fines, to suspension from attending classes and in extreme cases rustication or even expulsion from the institutions. This punishment, of course, would be separate from the criminal proceedings which would be initiated if a student is found in violation of any section of the Indian Penal Code.
• Focus on prevention rather than redressal, incorporating moral values.
  To completely eradicate the menace of ragging from Higher Education, there needs to be a change at the societal level.
  This will come when there is a shift in the attitude towards ragging and bullying. There needs to be a realization that radical change only occurs when a society collectively demands it and is conscience of its need. Eradicating ragging and bullying cannot solely be left up to the college administrations or the governmental authorities, there needs to be collective societal involvement which would catalyze the much needed change. This change can be brought about through incorporating moral and value based education, conducting sensitization drives among students of all ages, and spreading awareness among the students about the ethical consequences of their acts. This will contribute to reducing the number of cases related to ragging and bullying. Deterring people from engaging in such acts cannot arise solely out of putting sanction or having strict punishments. There also needs to be an awakening of moral consciousness among students, where they do not engage in acts of ragging or bullying by virtue of their own good conscience and ethical judgement.
  This is absolutely necessary if people want to eradicate this menace from society.
• Involvement of parents in the anti-bullying and anti-ragging programs of institutions
  Parents are one of the primary stakeholders in our education systems. There needs to be positive coordination between the parents, the school or college administration and the students. The cohesive effort of all three of these primary stakeholders can be instrumental in preventing cases of ragging and bullying. Parents should constantly be in touch with the authorities and immediately report any incident that they come across. They also should follow up after the incident and demand to be notified about the action taken by the college administration.

Bullying Legal Cases

Pon Navarasu case

The facts prompting the present case are that on 06.11.1996 at about 2.00 p.m. the accused-John David [first year senior medical student of Muthiah Medical College, Annamalai Nagar] removed Navarasu-deceased [first year junior medical student of Muthiah Medical College, Annamalai Nagar] and exposed him to serious ragging in Room No. 319 of KRM Hostel of the college and when the junior student did not obey and resisted the accused, accused caused head damage to the deceased and when Navarasu-deceased was lying on the ground oblivious, the accused cut off his head and limbs with the assistance of stainless steel knives and expelled his gold ring, watch and gold chain and caused his demise. In the wake of doing such abhorrent act and with the expectation of concealing the proof and furthermore to demonstrate his alibi he put the head and the gold articles of Navarasu-deceased in a zip sack and tossed it into channel water close to the lodging and burnt the bloodstained garments of the deceased on the terrace of the hostel and took the torso in a bag alongside the limbs in a train to Madras and tossed the limbs in a waterway when the train crossed Cuddalore and put the torso in a transport at Tambaram.

The police received from different people including students of the college pointing the guilt towards the accused, who was likewise found missing from the college premises from 12-14.11.1996. On 14.11.1996 the accused surrendered himself before the Judicial Magistrate, Mannargudi.

The message of his surrender was passed on to the Annamalai Nagar PS,and he was held in police authority for five days from 18.11.1996. On 19.11.1996 at about 1.30 a.m. the accused gave a confessional proclamation expressing that he has put the severed The prosecution so as to build up the guilt of the charged analyzed a few witnesses and displayed various records including logical reports.

From that point, the denounced was analyzed under Section 313 Cr.P.C. to empower him to clarify the conditions existing against him. In the wake of hearing contentions progressed by the gatherings, the Principal Sessions Judge, Cuddalore by its judgment dated 11.03.1998 indicted the charged. Head Sessions Judge, Cuddalore found that there are sufficient conditional evidence and thought process with respect to the charged for carrying out such a wrongdoing and held the blamed/respondent guilty under Sections 302, 201, 364 and 342 IPC and indicted and condemned him to experience imprisonment for life under sections 302 and 364 IPC, rigorous imprisonment for one year under Section 342 IPC, and rigorous imprisonment for seven years and to pay a fine of rupees one lakh and in default to experience thorough imprisonment for twenty one months under Section 201 IPC.

It was additionally requested that the sentences would run successively.head of the deceased in the pontoon channel inside the University campus.

After conviction, the accused appealed in the Madras High Court against the judgement. The High Court overturned the decision taken by the sessions court and acquitted the accused. The court found that the case was not proved by the prosecution beyond reasonable doubt and hence freed the accused from jail.

In response to this, the Tamil Nadu government appealed to the Supreme Court, which overturned the High Court decision and upheld the original decision taken by the Sessions Court.

John David was put back in jail in 2011 and is currently serving his sentence in jail.

Aman Kachroo case

Aman Kachroo was a 19 year old first-year student of Dr Rajendra Prasad Government Medical  College in Tanda in Himachal Pradesh. A group of seniors arrived at his hostel in a drunken state and ordered some juniors, including the victim to make a file and they started ragging the juniors. The altercation soon turned violent and the seniors started beating up the juniors. Aman Kachroo’s head was bashed against a wall and he was severely injured.

The next day, he was admitted into a hospital, where his condition deteriorated and he died of severe brain hemorrhage.

Ajay Verma, Naveen Verma, Abhinav Verma and Mukul Sharma were charged  under Section 204 II (Culpable Homicide not amounting to murder), 452 (house trespass after preparation for hurt, wrongful restraint or assault), 34 (common intent) and 342 (wrongful confinement) of the Indian Penal Code.

They were found guilty by the Sessions court and sentenced to four years in jail each.

This decision was upheld by the High Court and fine imposed on the accused was increased from Rs 10000 to Rs. 1 lakh.

When the matter reached the Supreme Court, the Apex court studied the matter in detail and laid out new guidelines regarding cases of ragging which have shaped the Anti-ragging law in India in an instrumental way.

The Hon. Supreme Court recognized that the episode including the passing of Aman Kachroo has obviously shown that the formulation and codification of guidelines was not adequate. Thus, the Hon. Court requested that such guidelines must be authorized and put into practise carefully, and corrective ramifications and penal prosecution for the leaders of the foundations/organization of the establishment be initiated, who don’t make convenient strides in the avoidance of ragging and rebuffing the individuals who show inaction and negligent behaviour. Notwithstanding punitive results, departmental enquiries be started against such heads establishments/individuals from the organization/faculty individuals/non-showing staff, who show an impassive or heartless mentality towards protests of ragging.

The Hon. Supreme Court requested that the Principal or Head of the Institution/Department will get an endeavor from each worker of the institution including teaching and non teaching individuals from staff, provisional work utilized in the premises either for running canteens or as watch and ward staff or for cleaning or upkeep of the structures/yards and so forth that he/she would report instantly any instance of ragging which goes to his/her notice. An arrangement will be made in the administration rules for issuing endorsements of appreciation to such individuals from the staff who report ragging which will shape port of their administration record.

The Court also said that the SHO/SP, inside whose jurisdiction a specific institution falls, will be in charge of guaranteeing that no ragging happens on the grounds of the concerned school, and to successfully manage occurrences of ragging, should, any such episodes occur. When a focal database/crisis hotline is made usable then when SHO/SP, inside whose jurisdiction a specific institution falls, is reached by the crisis hotline staff, at that point such SHO/SP will manage the occurrence and coordinate and speak with the crisis hotline staff or potentially the autonomous monitoring organization (discussed under the UGC circular guidelines). This will manufacture certainty and urge individuals to report rates of ragging immediately.

Ajmal PM case

Ajmal, a local of Kannur in Kerala and first year aeronautical student of Sha-Shib College close Yelahanka Air Force base, was admitted to the clinic with 65% burn injuries on March 22. The fire episode happened when he was washing up subsequent to playing tennis in the hostel premises.

Police had recorded an attempt to murder case dependent on the announcement given by Ajmal from his emergency clinic bed on March 22.

Ajmal claimed that three bombed students of a similar college were behind the fire. He advised police that they used to rag him and request cash. He admitted to his family that he was even compelled to take his mom’s gold chain to get money for his tormentors.

He expressed that on March 22, at 9.30 pm, he had gone to the bathroom.

“I smelled thinner and suspected something fishy. So I changed three rooms all of which possessed an aroma like thinner. Feeling that cleaners may have washed the toilets with thinner, I began bathing,” he said. He told police that three students began the fire at the roofless bathroom.

At the point when police enquired students about ragging in their hostel and college, they kept mum.

Chikkajala police wouldn’t remark on whether it was an instance of suicide or murder. “We are yet to discover the reason for the fire,” they said. Ajmal’s body was taken to the place where he grew up on Friday.

Unfortunately, Ajmal’s condition was too critical, and he succumbed to his injuries.

Conclusion

Therefore, the article summarized the various efforts taken up by the Supreme Court of India, the Raghavan Committee, the CBSE and the UGC along with other organizations and individuals towards raising awareness about bullying and ragging and making the law regarding these things more comprehensive and expansive.

It traced the history of the law regarding cases of ragging and how over the years it has been formalized and made stronger and less ambiguous. 

It is also a study into the motivations behind ragging and bullying and what can be done to prevent incidents like this. It elucidates the various types of bullying, the various settings and situations in which a particular type plays out as well as  the rising menace of cyberbullying in the nation.

It summarizes the two major  advances towards legislating action against ragging, which are the UGC Circular of 2009 for curbing the menace of ragging and the Raghavan Committee Guidelines of 2007.

It also lists out some major cases of ragging which shocked the country towards being more aware about the dangers of ragging, and how these cases have shaped action against cases of ragging.

It has also shown how bullying can be prevented and given various examples of bullying which can take place in different professions, workspaces or social scenarios.

Bullying shows no mercy. It can happen anyplace, whenever, and to anyone. In classrooms, on the transport, in the lobby, during lunch, on the play area, during exercise center class, in the washroom, on the PC, school occasions, on phones, or in the network, bullies figure out how to achieve their unfortunate objectives and derive their sadistic pleasure. As bullies conduct is deliberate, forceful, and happens more than once, it includes commanding and overwhelming the person in question. Power makes bullies feel great about themselves and enables them to gain attention from others.

All children are influenced by bullying in some way. Most children don’t bully others and are not victims-but they do play a role. Children who turn away, watch, or partake by verbally condoning bullying are designated “bystanders.” Often times the children don’t understand that they are adding to the issue just by viewing. Numerous bystanders, who don’t successfully support the person in question, are later disturbed by their very own absence of sympathy. Tragically, numerous bystanders are bound to empower the domineering jerk than assisting the person in question, who is being bullied. At the point when students bully it is important for them to have a group of people around and bystanders to encourage and validate them. Notwithstanding, the bystanders have the ability to radically lessen bullying. In the event that the group of spectators demonstrates dissatisfaction, bullies lose their drive. More often than not bullying stops inside ten seconds if an onlooker ventures in to support. At the point when a spectator just stands by and does nothing, it is equivalent to stating bullying is alright. It makes that individual no superior to the harasser.

Most children do not speak up against bullying and are mere bystanders because they fear the bullies and their power, as bullies are often physically adept and exude a sense of power. But children also need to realize that their collective power is much more than an individual bully.

Bullying in schools occurs across the board in all demographics and areas and has been to a great extent disregarded by expert agents. It is frequently a covert issue, however on the off chance that it were put into the setting of social connection, schools could attempt to react to it in profitable ways. Bullying is a social issue that happens in the social condition all in all. The bullies’ animosity happens in social settings in which instructors and guardians are commonly ignorant of the degree of the issue and other children are either hesitant to get involved or just don’t have the foggiest idea how to help. The best thing that should be possible is to spread mindfulness. A multifactorial reaction is ideal, and preventive action is obviously better than emergency the executives.

One way that we as future instructors can by and by assistance to end bullying is by setting up a zero tolerance bullying approach for schools. Tell the students from the earliest starting point of the year that bullying won’t go on without serious consequences and that there will be fitting reliable ramifications for those that take part in it. It might likewise be useful to have study hall exercises managing acknowledgment and contrasts to demonstrate the children that everybody is unique, yet that is the thing that makes each other uncommon. Likewise raising parental mindfulness can be a major advance in the end procedure. Guardians are the greatest effect on their youngster’s life. It is critical to keep guardians refreshed and associated with their scholastic issues, yet their social ones also.

Most schools have a bullying issue. Schools need to make an open strategy against bullying. Children need to realize that the domineering jerk will be rebuffed. Schools can show hostile to bullying conduct through pretending. Schools ought to urge children to know about the spots and approaches to help. They need grown-ups to encourage them to talk facing bad form and that it isn’t squealing however making the wisest decision. Children need to realize that they are not by any means the only one who thinks bullying is hazardous and wrong. Some of the time it just takes one to point out an issue and after that numerous others concur and voice their feelings as well.

Bullying is a major issue that can drastically influence the capacity of students to advance scholastically and socially. An extensive intercession plan that includes all students, guardians, and school staff is required to guarantee that all students can learn in a safe and dread free condition. Our children have the right to have the option to learn in a protected and secure learning condition. It is dependent upon all instructors to give this to them. Bullying and badgering flourish with the widespread silence around the issue and teachers and guardians have the quality and capacity to have any kind of effect.

It has been appropriately said that the end may not generally legitimize the methods. Behind the façade of ‘welcoming’ new students to college, ragging, in fact, is a famous practice wherein the senior students get a reason to disturb their lesser partners, and as a general rule, make them obvious subjects to satisfy their own unreasonable twisted, sadistic joys. Aside from committing grave physical abuse, those appallingsutdents who resort to ragging either build up a fear psychosis that frequents the juniors for the duration of their lives, or more regrettable, quit their college instruction even before it starts. For any student who trudges day and night to verify entrance into a renowned school, ragging can be his or her most awful nightmare, It would not be a distortion to state that, today, ragging has taken the state of a genuine human rights violation with even the most regarded and trained instructive establishments falling prey to it.

Today, ragging may have turned out to be established practise in the Indian educational set up, yet many would be astounded to realize that ragging is initially a western idea. Ragging should have its creation in certain European Universities where seniors played functional jokes at the season of inviting rookies to the institutions. Bit by bit, the act of ragging wound up well known all through the world. Nonetheless, with time, ragging expected disagreeable and destructive meanings and was seriously censured. Today, practically all nations of the world have authorized stern laws that boycott ragging and it has been totally eradicated in nations, for example, Canada and Japan. In any case, unfortunately, India, which acquired ragging as an inheritance from the British Raj, has not had the option to liberate itself from the grip of this barbaric practice. It very well may be stated, with no space for uncertainty, that the most exceedingly awful type of ragging is submitted in India. Infact, as indicated by a survey led by CURE , India and Sri Lanka are the main two nations on the planet where ragging exists.

In conclusion, it can be said that a lot remains to be done to curb cases of bullying and ragging in India and there needs to be a concerted effort not just by people in positions of power but society at large to eradicate this evil which has plagued our education system for decades.

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This article has been written by Arkodeep Gorai, a 4th year student from Amity Law School, Noida. In this article he discusses about the Indian Stamp and Registration Act.

Introduction

Throughout our lives, we come across various levels and types of transactions and documents. Some of these documents and transactions are of massive importance to us and the State. Without any mechanism of their regulation, it would be troublesome to keep a track of such transactions.

For this reason, the State introduced the process of registration. Now once this mechanism was sorted State also wanted to gain some form of revenue from such transactions and documents and in order to gain that revenue State introduced the system of stamp duty.

Indian Stamp Act, 1899

Overview

Indian Stamp Act was amended in 1899 by the British Government with the sole purpose of acting as a revenue-generating mechanism for the Government. This Act imposes liability to pay stamp duty on certain and specific documents. Indian Stamp Act acts as fiscal legislation.

Objectives of the Stamp Act, 1899

1. The main purpose of this Act is to generate revenue for the Indian government.
2. A document which is stamped acts as valid evidence in a court of law.
3. The Stamp Act also makes payment of stamp duty on some documents compulsory which in return makes those documents legally valid and authentic.

Stamp Duty

The tax payable on a certain and specific document is termed as stamp duty. Stamp duty can be fixed or varied based on the value of the product.

Basically, stamp duty is a tax which is paid on the exchange of documents or execution of instruments.

There are basically two kinds of stamp duty and they are:

1. Impressed stamp- An impressed stamp is produced by the process of engraving or embossing. The labels in impressed stamps are affixed and these impressions are done by franking machines in the bank.
2. Adhesive stamp-  Adhesive stamps are those stamps which can be stuck to a document using any form of adhesive. There are two types of adhesive stamps and they are:

1. Postal stamps- Postal stamps have their limited application. Postal stamps are used for post office related transactions.
2.  Non-postal stamps- Non-postal stamps have wider application compared to postal stamps. Non-postal stamps are revenue stamp, court fee stamp, insurance policy stamp etc.

There are certain very important terms that are related to The Indian Stamp Act, 1899. It is important for us to be aware of those terms and they are:

• • Conveyance- Section 2 (10) of the Act defines the term conveyance. It basically includes an instrument by which property is transferred. It applies to both movable and immovable property. Sale deed, transfer of lease, release, settlement are all chargeable as conveyance.
  • Duly Stamped- Section 2 (11) defines this term. It means that the instrument bears the adhesive or impressed stamp, not below the amount essential by law and further no violation to the manner prescribed by law. The amount of stamp to be used is governed by provisions and schedule to the Stamp Act. The manner of stamping is governed by section 10 to 19 of the Act and also by the rules framed by the Government. Under this head are included particulars as to the description of state ps and the number of stamps to be used. Thus an instrument which is to be written on paper with an impressed stamp is not duly stamped if it bears only an adhesive stamp of the value and vice- versa. 
  • Instrument- Section 2(14) defines the term instrument. So instrument means any document through which any right, liability is created, transferred, extended or extinguished. A document which helps to record such rights and liability even though the document itself does not create such right or liability can also be termed as an Instrument.
  • Instrument chargeable with duty- All the instruments mentioned in the schedule are chargeable with duty of amount as mentioned in the Act. The exception to charges is an instrument which is executed by the government or executed for the purpose of Special Economic Zone.

Valuation of Instrument for levy of stamp duty

As we already know that Instruments are chargeable with duty but then it raises another question and that is how is the valuation of instruments is done, the answer to that question is from Section 20 to Section 27 excluding Section 22 of The Indian Stamp Act.

• Section 20 of the Act states that where an instrument is chargeable in respect of money in any currency other than that of India then, in that case, the duty shall be calculated on Indian currency and the exchange rate shall be applicable on the date of the instrument.
• Section 21 provides that where an instrument is chargeable with ad valorem duty in respect of stock, securities then, in that case, the value of the day is calculated by the average price of the stock or security in the day of the instrument. 
• Section 23 deals with interest, it states that where interest is payable by the terms of an instrument in such a case the value of the duty shall not exceed the charge by which it would have been initially chargeable.
• Section 24 states that duty is also payable on the amount of debt when a property is transferred wholly or partially.
• Section 25 talks about the computation of duty in the case of annuity and it is as follows:
• When the annuity payable is for a definite period and a certain amount then, in that case, it is the total amount.
• When the annuity payable is for an indefinite period or in perpetuity and a certain amount then, in that case, it is the amount payable in the first 20 years from the date on which the first payment becomes due.
• Section 26 states that where the instrument is chargeable with ad valorem duty but the value of the subject matter cannot be ascertained at the date of its execution, then, in that case, the executants can value the instrument as they please. However, they cannot recover under such a document any amount which is in excess of the amount of stamp duty that has been paid.
• Section 27 sets that parties of an instrument are bound to set forth all the facts and circumstances affecting the chargeability of an instrument.

By whom stamp duty is payable

Section 29 of the Indian Stamp Act provides for the person who is liable to pay the stamp duty. For various instruments, there are various people who are liable to pay the stamp duty and they are as follows:

1. Administration bond agreement, pawn agreement, pledge agreement, bills of exchange, bonds-  In such instruments the person who is drawing, making or executing such instrument is liable to pay the stamp duty.
2. Lease agreement or agreement to lease- In such instruments, the lessee or the intended lessee is liable to pay the stamp duty.
3. Certificate of sale- The purchaser of the property is liable to pay the stamp duty in case of a certificate of sale.

Evidentiary value of an instrument not duly stamped

Section 35 of the Indian Stamp Act does not allow an instrument chargeable with the duty to be admitted as evidence if it is not duly stamped, however, there are certain exceptions to this section and those exceptions are:

1. Courts and arbitrators may admit documents which are unstamped or deficiently stamped on payment of proper duty and penalty.
2. An unstamped receipt is admissible only against the person on whose fault the receipt was not stamped on payment of penalty of Rs. 1.
3. When a contract has two letters attached and any one of those letters are stamped then in that case the contract will be treated as it is completely stamped.

E-Stamp

Through modernisation, there has been an introduction of E-stamp or as known as an electronic stamp. E- stamp is basically an electronically generated stamp which can be used as a non-judicial stamp and can be used to pay stamp duty to the government.E-Stamping is a computer-based procedure and a secure manner for the state to pay non-judicial stamping duties.

Benefits of E-stamp

1. E-stamps are less time-consuming.
2. They are very easily accessible.
3. They are cost saving.
4. E-stamps are user-friendly.

Reference and Revision

Under the Stamp Act, if the collector is unsure about the amount of duty chargeable for the instrument then, in that case, the collector may draw up a statement of the case and refer it to the Controlling Revenue Authority.

The Registration Act, 1908

Overview

The Registration Act, 1908 was set up with the purpose of ensuring registration of documents and that all the important information related to deal regarding land or other immovable property. Having a document registered can add more authenticity to that  of the document.

Objectives of the Registration Act, 1908

1. Registration of a document ensures proper preservation and record of such document.
2. Documents which are required to be registered act as valid evidence in a court of law.
3. Registered documents assist in the prevention of fraud.
4. Registration Act gives people information regarding legal rights and obligations arising or affecting a particular property.

Documents which are compulsorily registrable

There are certain documents which are compulsorily registrable. Section 17 of The Registration Act, 1908 lays down all the documents which are compulsorily required to be registered and those documents are:

1. Instruments of the gift of immovable property.
2. Leases of immovable property from year to year or any time frame exceeding one year.
3. Non-testamentary instruments which acknowledge the payment of any consideration.
4. Testamentary instruments which are transferring or assigning any decree or order of the court.

Documents in which registration is optional

All the documents that are not included in Section 17 of The Registration Act, 1908 have the option of the optional registration some examples would will or instruments related to movable properties.

Effect of registration

Section 47 and 48 of the Registration Act, 1908 notifies the effects of registration of a document. So the effect of registration are:

• Section 47 of the Act states that a registered document shall operate from the time it would have normally operated if there was no provision or procedure of registration.
• Section 48 states that all non-testamentary documents which are duly registered under this Act and relating to any movable or immovable property will take effect against any oral document relating to such a document unless where the agreement has been accompanied by the delivery of possession.

Effect of non-registration

Section 49 of the Registration Act, 1908 states the effects of non-registration of documents which are required to be registered. The effects are:

1. Non-registration of a deed of adoption shall not grant any power to adopt.
2. A document required to be registered which is not registered cannot be taken as evidence for the creation of any right, duty or liability of immovable property. That document simply becomes useless.
3. Where a document is not registered then in such condition it cannot be allowed to affect an immovable property which the document comprises and it cannot be received as evidence of any form of transaction that is affecting such property.

Time limit for presentation of a document for registration

1. A document other than a will must be presented for registration within four months of its execution.
2. Section 24 of the Act states that when one document is executed by more than one person and the execution took place at different dates then, in that case, such document must be presented for registration within 4 months from the date of each execution.
3. When a document is executed outside the territory of India, then, in that case, the document must be registered in India.
4. These limits are mandatory but in case there is a delay on behalf of the court regarding registration or re-registration of a document then in that case these limits that are disregarded.

Conclusion

This article shows and highlights the importance of registration and payment of stamp duty. These two process makes a document much more authentic and allows them to function smoothly without any hindrance. The Stamp Act, 1899 and The Registration Act, 1908 lay down all essential amendments that show the importance of registering and paying stamp duty for a document.

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

Study of trends from the previous three All India Bar Exams

Over the years significant tweaks have been made in the All India Bar Examination (AIBE) pattern. How has the paper evolved? 

For those who are scheduled to attempt the AIBE in August 2019, understanding recent trends is important. Given below is the detailed analysis of the question paper pattern in view of the past 3 All India Bar Exams. 

#1 – The Increasing difficulty level 

Many people consider the AIBE to be an easy exam merely because it is an open book exam, but that is not true. It gives the question paper framers tremendous leverage to ask you esoteric and difficult questions.

As you may know, the All India Bar Examination is an open book exam consisting of 100 questions. A time period of 3 hours and 30 minutes is provided to solve these questions. There is no negative marking for the wrong answers. 

That leaves about two minutes to attempt each question, and 10 minutes for any last minute review, or initial reading time.

While two minutes per question sounds like ample time, that is only true if you already know the answer or if you can quickly arrive at it through some quick calculations. When you search for the answer in your carry-in materials, two minutes usually get over really quickly.

There is also a large amount of study materials to carry into the examination hall. To ensure your carry-in materials are not unwieldy, you need to carry a condensed set of material. You also need to learn how to find answers to each question in a short span of time. 

If you are not prepared and you have not practiced how to find the answers quickly, you may not make much progress in two minutes. You may also find the constant process of sifting through different books very exhausting. 

Over the years, there has been a shift towards concept-based and application-based questions for which understanding of the law is necessary. You cannot presume that you will be able to search for answers in the examination hall for such questions. You cannot expect to grasp a new concept and find an answer based on it in the examination hall. It is fanciful thinking. 

There has also been a greater focus on case-law based questions and emergence of general knowledge-related questions, as compared to earlier editions of the AIBE. 

If you are thinking of revisiting your LLB books and class notes (if you still have them) or beating yourself up for not paying attention in some class in the past  3 or 5 years of study, don’t. The books are voluminous, so you cannot go through all of them now. 

Classroom teaching is also irregular and inconsistent for different aspects, so going back to class notes will not help. The AIBE syllabus is more exhaustive. You need a different strategy to prepare specifically for this exam. 

#2 – Conceptual Questions

In the last three AIBE question papers, almost equal focus has been placed on the Bare Acts and concept based questions. Bare Act-based questions have become more difficult and sometimes they are indirect. 

Examples of some concept-based questions are given below: 

Q. Which is the correct statement

1. There can be a will without a codicil
2. There can be a codicil without a will 
3. Every will has a codicil
4. A codicil proceeds will 

(AIBE XI, Q.No.11, Set A)

This is a concept-based question. One can identify from the options that it is asked from the Indian Succession Act but it gets difficult to find the exact section during the exam because of the limited time available. Therefore, prior knowledge of law helps immensely while solving such questions.

Q. Which Act is covering cyber crimes:

1. Indian Telecommunication Act
2. Indian Penal Code
3. Indian Evidence Act
4. Information Technology Act

(AIBE XII, Q.No.93, Set A)

Where the name of the statute is not mentioned, it is difficult to identify the Law, let alone the section, if you are unprepared. This is especially true because questions from each subject are no longer in a sequence. You will not find questions from Civil Procedure Code bunched together. A question on documentary evidence (Evidence Act) could be followed by a question on sentencing powers of courts (CrPC), followed by a question on compensation for illegal arrest (Constitutional Law). The combinations can be far trickier and on a quick glance you may be intimidated. 

Therefore, leaving preparation for the last minute because this is an open book exam would not be the smartest choice. 

The paper consists of a mixed bag of questions curated to test conceptual skills as well as one’s ability to retain the knowledge gained by studying law. For instance, even if the Law is referred to in the question and the section number is given in the options, still the application of basic knowledge of the Law or logic would be required to mark the correct answer. For example, consider the following question: 

Q. Doctrine of “LIS PENDENS” is given under which section of the Transfer of Property Act:

1. 41
2. 52
3. 53
4. 53A

(AIBE XII, Q.No. 74, Set A) 

#3 – Focus on case law based questions

The weightage of case law-based questions has increased over the years. There were 10 case-law based questions in the AIBE XIII. 

The common practice is that the examiner asks questions based on the cases which have played a significant role in building the Indian legal system. Questions may even be asked from the cases which are being discussed in the news and hence, one needs to be abreast with the major judgements being delivered. For example, consider the following question:

Q. Rupa Bajaj v/s KPS Gill, is a famous case which the Supreme Court decided on

1. Wrongful restraint
2. Wrongful confinement 
3. Outrage the modesty of a women 
4. Maintenance to the divorced women 

(AIBE XI, Q.No.81, Set A)

Although this is an old case, in 2017, KPS Gill’s demise had reopened conversations on this high profile case. The issue in this case was related to sexual harassment at workplace. 

Q.Supreme Court has decided in Kesavananda Bharati v. State of Kerala that:

1. Parliament can amend any provision of the Constitution 
2. Parliament cannot amend any provision of the Constitution
3. Parliament can amend any provision of the Constitution but cannot alter the basic structure of the Constitution
4. None of the above

(AIBE XII, Q.No. 32, Set A)

Q. Section 66A was invalidated by the Supreme Court of India in:

1. Anvar P.V. Vs P.K. Basheer, (2014) 10 SCC 473.
2. Shreya Singhal Vs Union of India, AIR 201 SSc 1523.
3. Dr. Prafulla Desai Vs State of Maharashtra, AIR 2003 Sc 2053
4. State (NCT of Delhi) Vs Navjot Sandhu, (2005) 11 SCC 600.

(AIBE XIII, Q.No.37, Set C)

Q. Supreme Court decided in S.R. Bommai v/s. Union of India, 

1. Relating to the President’s Rule in the state
2. Relating to illegal detention 
3. Relating to the right to clean environment 
4. None of the above 

(AIBE XII, Q.No. 26, Set A)

Many of you may know the answers to these questions, but you must notice the shift towards testing candidates on the basis of knowledge of important case laws. BarHacker has prepared case lists on important subjects to provide last minute ready reckoners, called Hacksheets. You can print and carry these Hacksheets and refer to them during the exam. 

#4 – Illustration-based questions

Focus on illustration based questions has also increased. There were 9 illustration-based questions in AIBE XIII. In contrast, in AIBE XI and XII, there were 2 or less illustration-based questions.

Illustration-based questions have been asked from the Contract Act, Family Law and Indian Penal Code. So far, the focus has been to frame questions directly from the illustrations given in the Bare Acts, without identifying the statute. For example: 

Q.“A” finds a purse with money not knowing to whom it belongs, he afterwards discovers that it belongs to “B” and appropriates to his own use. “A” is guilty of: 

1. Criminal breach of trust 
2. Cheating 
3. Criminal misappropriation 
4. Theft

(AIBE XII, Q.No. 87, Set A)

The above question is from Section 403, Indian Penal Code [illustration (c)]. 

Q. Mohan gets married to his sister’s daughter Kriti:

The marriage is valid if the custom allows it 

1. The marriage is void 
2. The marriage is valid only if the Court approves it
3. The marriage is valid only if the Panchayat permits

(AIBE XI, Q. No. 84, Set A) 

This question highlights the concept of ‘custom and usage’ given under the Hindu Marriage Act.  Section 2 of Hindu Marriage Act defines the expression “Customs” and “Usages”, and Section 5  of the Act lays down ‘Conditions for a Hindu Marriage’, Section 5 (iv) (iv) the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two.  

These set of questions require concrete preparation and concise reading material so that it is easier to revise the entire syllabus before the exam. A detailed understanding of the provisions is required to be able to solve such questions. You cannot expect to acquire such an understanding in the examination hall or even at the last minute. Advance preparation is necessary.  

#5 – Emergence of “current issues” and “general knowledge” based questions

There are questions based on current issues, general knowledge, historical events (related to law) in the AIBE paper. 

For example, climate change has been in the news repeatedly, and a question was asked based on the climate change conference in a prior Bar Exam.

Q. The Convention on Climate Change was the outcome of:

1. The Stockholm Conference
2. The Nairobi Conference 
3. The Vienna Conference 
4. The Rio De Janeiro Conference 

(AIBE XII, Q.No.5, Set A)

Since a debate on Lokpal and appointment of Lokayukta was in the news, a question was asked regarding ombudsman in the exam:

Q. The word ‘Ombudsman’ is derived from:

1. French administration
2. British Administration
3. Swedish Administration
4. German Administration

(AIBE XI, Q.No.15, Set A)

Although the number of such questions asked in the exam is not significant currently, we identify this as a new category of questions. 

How to prepare 

Preparation for any exam involves analysis of syllabus, past years’ question paper analysis and then creation of a preparation strategy.  

Your preparation strategy will involve answering the following questions:

• Which subjects to focus on first and which ones to focus on later?
• How to solidify your understanding of the concepts?
• How to familiarize yourself with the structure of the Bare Acts?
• How to prepare so that you can answer questions fast?
• How to develop proficiency in answering each type of question asked? 
• How to practice past years’ papers to identify where you stand? 
• How to build your confidence? 
• Which materials to carry into the examination hall?
• How to use the materials to find answers quickly?
• Which questions to answer first in the examination hall?
• What to do if something unexpected happens in the exam? (For example, if there are too many unfamiliar or difficult questions)? 

If you are preparing for the All India Bar Exam for the first time, this can be quite an overwhelming task, even if you have been a very bright student. The biggest challenge is in identifying the correct direction and sticking to the track. Most students who fail the exam are unable to cross this challenge.  

It is not necessary for you to cross this challenge on your own. If you want, you can use a structured program such as BarHacker to have a clear direction and preparation strategy, so that you can spend all your time to prepare and practice what is important, and not spend it in acquiring irrelevant knowledge or studying voluminous books, or worrying about other unidentified risks and uncertainty. 

Some people think that they must crack exams on their own, otherwise they are not smart enough. I want to let you know that taking the support of a training program in no way means that you are dumb or less intelligent. The world’s most successful businessmen also take support from executive coaches through their journey of building great companies. In fact, smart people take additional steps to prepare for the challenges they face.

BarHacker has provided providing training materials to students for the past nine years, evolved as the Bar Exam evolved and ensured a 100% pass rate.  Many candidates who had earlier failed the All India Bar Exam have passed after taking BarHacker’s guidance in the past.

If you plan to attempt the exam in August, how do you plan to prepare? Have you already started?  Keep sharing about your preparation strategy and challenges with us. Just hit reply and let us know. We’ll be glad to guide.

If you have any questions, comment below or call 4084 5203

The post What’s New in the All India Bar Exam this Year? appeared first on iPleaders.

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The post How Not to Fall off the Rail appeared first on iPleaders.