This article is written by Sanjana Tripathy, a lawyer working in Hyderabad. She has explained the concept of mooting and what courses are offered in it.

What is Mooting?

Mooting is an imitation of a court hearing wherein participants analyse a problem, research for relevant laws, prepare written submissions and present an oral argument. Moot problems are generally based on unsettled law or on recent developments.

The procedure is the same as in an actual court- the judge enters, mooters and the judge bow to each other, the clerk announces the matter, the mooters give their appearances and are then called on in turn to present their submissions, the judge asks questions of the mooters, the court adjourns, and the judge then returns to deliver a brief judgment and some feedback.

Mooting is different from public speaking or debating, although it is similar to them in some aspects. It is a specialised application of persuasive advocacy. (See Here)

Who should do a course on mooting?

Every graduate or undergraduate law student who is inexperienced in mooting or who has just started mooting should do a course on mooting as it will help them in enhancing their skills, make them confident enough to participate in reputed moot court competitions and also familiarise them with the working of an actual court.

Compulsory mooting in Indian law schools

In India, mooting started when the Bar Council of India organised Bar Council of India Moot Court in 1981. In 1985, moot court learning became a basic part of Indian legal education. Since that time, mooting is followed in Indian Law Institutes. (See Here)

Mooting culture varies in different law colleges. Some have mooting as an extra-curricular activity while some have it as a compulsory part in their academics. For selection in representing the college in national and international moot court competitions, there is an intra college competition where students compete against each other. The moot court societies of different law colleges plan, organise and conduct intra selection rounds.

The selection process for representation in national and international moot court competitions may either be held together or separately. Many National Law Schools and other law schools have moots as part of their academic curriculum but the best known mooters come from those colleges where mooting is an extracurricular activity.

What is taught in a Mooting Course?

The syllabus taught in a mooting course are as follows:-

1. Introduction- What is a moot?

2. Preparation of a moot speech

3. How to research in a given moot court case?

4. How to present yourself in the moot court?

5. What all to include in a memo and how to format it?

6. How to frame powerful arguments?

7. Handling the situation inside the court

8. How to make a good and reliable memo?

9. Moot court ethics.

What are the important skills that you learn in Mooting Course?

The important skills to be learnt in a mooting course are as follows:-

1. Reading a moot problem

The first and the most important part of a moot is to read the problem entirely. Read it as many times as you want till you understand the problem. You can also jot down important points or underline them in the problem itself. It may take a long time but eventually you will be familiar with the problem like the back of your hand. Understanding the facts of the case is very important as the judge might ask about it.

2. Identification of issues

After reading the problem, the next step is to identify the issues related to the problem. Sometimes the problem will be such that you will be able to pinpoint the issues easily but sometimes the problem will be such that issues are too difficult to trace. The only solution is careful reading of the problem as many times till the issues are found.

3. Research method

Research can be done from anywhere on the condition that the resources are reliable and trustworthy. You may have to spend many sleepless nights researching for your moot problem but to make a good memo you have to take such pains. Make sure your research is such that any question asked by the judge is answered.

4. Framing arguments

It is the most important part of writing a memo. The arguments must be such that the judges can’t pinpoint any fallacies and mistakes. The cases written in support of your argument must be related to the issue. Facts may not be similar but the issue must be the same otherwise you won’t be able to save yourself from the questions of the judges.

5. Moot court ethics

It is not enough if your memo is good, you must also learn moot court ethics. This includes treating your judges with respect, standing and addressing them when they enter, letting the judge speak and not interrupting them etc. If you don’t know this then the judge may stop you from speaking and point out these flaws which would be very embarrassing.

6. Practising before the moot

It is very important that you practise as much as you can before the moot court competition till you are confident to speak before the judges. Practise before a mirror to see your expressions. Ask some people to act as judges so that you speak before them and they can pinpoint your mistakes. And someone correctly said “Practise makes perfect.”

7. Delivery of moot speech

This includes presenting the facts, issues and arguments in the case. There are many hindrances to a perfect moot speech- judges will interrupt you while you speak, time limit for your speech gets over, questions may be asked to confuse you and sidetrack you from your argument. These problems can be overcome if you have a plan regarding your presentation of speech.

Courses provided in Mooting

India

LawSikho is an online legal education platform which provides various courses in law including mooting. It has students in over 20 countries and track record of delivering legal and compliance learning solutions to companies like Samsung, Microsoft and BCG, offers cutting-edge online courses focussed on practical aspects of law and business.

It provides diploma and certificate courses on drafting contracts, intellectual property rights, investment law etc., conducts workshops and career development programmes. On completion of a course, physical copies of certificates are awarded. The courses are managed by Addictive Learning Technologies Private Limited. With respect to mooting, 3 months’ certificate programme named Mooting School is provided.

They can be contacted through:-

1. Phone- +91 011-3959-5032

2. Email- info@lawsikho.com

For further information see here.

Mylaw Learning Resources Private Limited provides for online mooting skills for junior law students to help them to obtain the essential skills to take part in and exceed expectations in domestic and international moot court competitions. This course will set you up to work in groups and contend with others with a well-ordered way to deal with perusing moot problems, looking into with reason, drafting written submissions, and planning for oral arguments. It additionally includes useful knowledge from experienced mooters Bhabna Das (NLSIU, 2010) and Uday Joshi (NUJS, 2010). For further information see here.

Australia

The University of Adelaide provides mooting course named Law 3516- International Law Moot wherein students can participate by application and competitive selection only. This course offers students the chance to work on unpredictable and forefront questions of global law through preparation for, and participation in, a recognized international law moot competition. All the while, students will create and refine progressed lawful research and advocacy aptitudes. The moot court competitions will, as a rule, incorporate the Philip C Jessup International Law Moot Court Competition, the pre-famous worldwide mooting competition in international law. Groups may likewise be entered in different international law moots, including the Manfred Lachs Space Law Moot. Students will be required to go to induction and moot training courses, and afterward to concentrated research in international law, get ready written submissions and create oral submissions which are then refined through mooting practice. (See Here)

The University of South Australia provides mooting course named LAWS 3069- Mooting for undergraduate students which will enable them to participate in international advocacy competitions including Jessup International Law Moot and the VIS Arbitration Competition. Students will develop excellent skills in teamwork, legal research, advocacy and written & oral submissions. The content of each course will be according to rules of each international competition but will generally include a detailed academic content and skills in legal research, advocacy, teamwork and writing. This course is taught through workshops and moot court for 8 weeks wherein per day will be of 2 hours as per the timetable provided. For further information please refer to their website “https://study.unisa.edu.au/courses/105249/2018.”

The University of Canberra provides a course named Mooting (8685.2) at Undergraduate Fourth Year Level held ON-CAMPUS. This unit will build up the students’ analytical and oral advocacy aptitudes, enable them to ace structuring aptitudes in sorting out written presentations, enhance their utilization of experts with the help of their arguments, and in the meantime will build up their teamwork capacities. It will likewise help the moot team members to propel their performance in particular territories of private and public law, contingent upon the field of every competition, offering a pragmatic training in light of genuine case situations, performing tasks they will perform in a legal position after graduation. This unit will be taught along with unit Mooting PG. (See Here)

The University of Newcastle offers a Competitive Mooting course (LAWS6097) which will help students who are eligible and willing to participate in national and international legal skills competitions, to have their skills assessed and acknowledged. This course promotes and develops students’ advocacy, mooting and associated communication skills through preparation in a recognised mooting competition. Students are eligible for the subject by application and section only, as the students placed in this course are limited.

However, selection for participation in this course does not automatically qualify a student for participation as a member of a team in an external competition. Available competitions will be determined at the discretion of the course coordinator in conjunction with the Dean and Head of School. For further information see here.

England

The Mooting Society of University of Nottingham Students’ Union Provide crash courses in mooting to prepare new mooters for their first moo by teaching them how to read a moot problem and advancing through all facets of preparation to how to present an oral submission. People having no experience in mooting can apply for this course. Experienced mooters in the second and final year can apply for a shorter Refresher Course which is run for 1 hour aimed at guiding new mooters and providing fresh techniques to experienced mooters. For further information, please contact them at their email “mooting@nottingham.ac.uk.” (See Here)

King’s College London offers International Mooting Module (IMM), a 20 credit module to LLM students of all pathways at Dickson Poon School of Law. The IMM is essentially a unique mode of delivery of principle substantive knowledge areas in international dispute resolution and relevant advocacy skills. The IMM syllabus covers key skills in oral and written advocacy in international and transnational arbitration and adjudication while adopting a holistic approach to the analysis of international and transnational dispute resolution. (See Here)

The City Law School, London offers workshops for students who are new to mooting which is run by City Law School alumni who excelled in mooting. News Section must be checked for this.

China

The University of Hong Kong offers International Mooting and Advocacy (LW5649) course which intends to give chances to students to participate in mooting competitions with different colleges and establishments both in and outside Hong Kong. The focus will be on integration of the information and abilities effectively obtained on substantive law courses and to apply that learning and aptitudes in a court setting. The course intends to develop research, systematic, hierarchical and advocacy abilities by standing up to students with complex issues of both Act and law in a courtroom situation.

Inside the organized setting provided, the course students can plan for, and partake in, such global mooting rivalries as the Philip C. Jessup International law Moot, the Willem C. Vis Commercial Arbitration Moot, the Red Cross International Humanitarian Law Moot, the Manfred Lachs International Space Law Moot, Human Rights Law Moots, Foreign Direct Investment Moot, WTO Law Moots, the International Maritime Law Arbitration Moot and different moots in which the School participates.

This course has not been offered for the current academic year. The offering term is subject to change without prior notice. For further information please refer here.

Conclusion

India has to introduce more courses on mooting as it will greatly help students in becoming experienced mooters and also learning various aspects of law which they did not know about previously.

The post Why Mooting Matters? appeared first on iPleaders.

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

Want to succeed as a lawyer? You better be careful about the area of law you choose to practice in. It is probably one of the most important factors that will determine your growth as a lawyer.

It is almost certain now that Indian economy is going through a bad patch. Growth is lowest in decades as demonstrated by key metrics, and some indicators are even in negative. The SENSEX and other indexes are falling day after day. BSE small cap index is trading at a 2 year low. Global economic environment is not particularly encouraging either. There is a net capital outflow from the country as far as foreign institutional investors are concerned. Rural demand has tanked, and joblessness is also high. Top companies in India are reporting poor earnings. Bellwether sectors like Automobile and FMCG seems to have been hit.

While a recession has not been declared, it is now impossible to ignore the economic malaise that is prevailing around us. We really do not know when we will come out of this slowdown cycle, it could be a year or two easily.

Of course, some areas of law practice are going to be hit more, while some will boom. And there are others that will stay neutral. 

Many litigators have been talking about how fee recovery has drastically fallen in the last few months, and therefore litigation and disputes practice is not totally immune to an economic slow down either. 

If you are a young lawyer, or a law student about to graduate in the next couple of years, how will this affect you? How should you plan things? 

#1
Remember that a slow down is cyclic, and not permanent

India’s long term growth prospect is really good. An economic slowdown is a cyclic change, and not permanent. This happened in 2008-9 as well, and its normal for a slowdown to come back once in a decade. A lot depends, however, on how severe it will be, and what will be the global situation.
You should not probably decide your entire future based on such a cyclic and impermanent change.

However, if you are just about to join the profession, or have big loans to pay off, you need to be careful. 2-3 years of slow career growth or difficulty in bagging or retaining jobs can be very demotivating, especially right at the beginning of your career.

#2
The Indian government is responding with big systemic reforms, likely to do more

Since I was a teenager, I have been hearing about labour law reforms to make India a more capital friendly country. It never really happened. Well, it is underway now. Major changes in labour law is going to hit the market in the next few months.

Such massive changes also often result in a lot of new legal work, like we saw with the introduction of GST.

We are also likely to see more legal reforms in the next few years, probably around energy sector, banking sector, infrastructure and land acquisition.

Farmers are one of the core targets of government activity, and already we have a law for increasing crop productivity – the Model Agricultural Land Leasing Act of 2016. Developments around agricultural reforms will be worth watching closely as new opportunities for independent lawyers may arise here. 

Land acquisition is also a problematic area, and reforms can be expected in order to promote industry and government projects. Every project leads to many legal disputes and challenges, which increases work for lawyers. So far, lawyers have failed to capitalise on work around this, but things are likely to change in the next 5 years.

#3 
Disinvestment and infrastructure will be a major area of work

Government is going gung ho with disinvestment to generate more revenues, and that means a lot of work for big law firms in coming years. Even if there are fewer M&A or investment deals, massive disinvestment activity can offset some of that and keep corporate transaction teams afloat.

Government backed infrastructure projects are likely to get a new push in an economy that is seeing a slow down, because that is the only thing the government can do while private investment takes its time to recuperate. While Indian government is also trying to cut deficit, it has no choice but to increase public spending if the economy starts tanking. Lawyers working on such matters (Projects practice, Project Finance) have reasons to be very happy in coming months if they can land the government as a client, by getting empanelled.

#4
Supply chains moving out of China

As a result of a trade war with the USA, a lot of global supply chain companies are looking for alternative locations, if not for relocating then at least for further expansion. Since India and US relationship is relatively on a better footing these days, it is not unlikely that we would see some of that supply chain relocating to India, especially given the huge difference in average per capita salaries between China and India. 

Only problems here are red tapes, higher tax, and difficult labour laws. Given the impending labour law reforms, we can expect slightly better prospects, and we can expect more SEZs to come up in order to avoid customary red tape and taxes. 

That would be a major boom for transactional lawyers in India if it actually happens.

#5
Tax litigation

As government is getting aggressive about collecting taxes, we can expect a lot of litigation and work for tax lawyers. We now routinely see that tax officers are given revenue targets and quotas like sales people in a private company! As a result, some officers at times indiscriminately fire off thousands of notices to assessees. This is only likely to grow from here as companies begin to report losses or fail to pay taxes on time. 

Tax lawyers, both direct and indirect, are going to have a great time in coming years.

#6
Policy lawyers are in demand

Until sometime back, policy practitioners were not even considered to be lawyers. They were thought of as lobbyists. But this has changed rapidly. New companies entering India, from Uber, Amazon, Walmart to Juul, all are aggressively hiring policy lawyers. Economic slowdown has always led to reduction of resistance towards policy changes and weakening of old guard and dominant business lobbies.

The slowdown will see more clout in favour of policy lawyers because this would be an important front for battle. New industries will aggressively spend on policy lawyers to push back traditional industries, and the slowdown is a great window of opportunity to make policy upheavals take place because government is more open to radical policy making in favour of economic growth.

So e-vehicles over old automobiles. Juul over big tobacco. Expect such changes.

#7
Environment protection 

Along with global slow down, another important trend that we cannot ignore any more is environmental awareness. Europe has burned this summer from unprecedented global warming, and that has already led to trigger election of environmentalists in the last few European elections. It is hard to ignore the impending global environmental catastrophe anymore. Closer to home, cities are reeling under water crisis, and environmental awareness is at unprecedented levels. There is little doubt that the environment is about to become a major political issue going forward, because the majority of Indians are already bearing the brunt of it.

We are likely to see a lot of action on this front in the next 3 years. This may be a nascent area even now, but nobody can deny its importance, and there is a dire need for a lot of lawyers to take up the cudgel on this front going forward. Environment will be a highly litigated issue and a priority for courts going forward.

Businesses and government will naturally be forced to spend a lot more on this area of law in times to come.

#8
Class actions

In the next few years, we are likely to see class action suits emerge as a viable option in India, thanks to internet based platforms and crowdfunding. There are a plethora of issues in India which are not litigated because the victims or plaintiffs are from the bottom of the pyramid or because they cannot prosecute big companies and organizations. These cases are likely to be now taken up, especially in the light of third party funding becoming legal. Crowdfunding will also be critical here, especially in light of major successes in other countries – such as Brexit litigation being funded through crowdfunding.

Third party funding also may become a reality as financing models emerge. India has a lot of civil matters which does not move forward due to lack of funding and slow court process. 

Two crucial legal reforms have changed the situation. One of the introduction of fast tracked commercial courts for large commercial disputes that are suitable for third party funding. The other is the amendments to Specific Relief Act. Earlier damages used to be default, but after the amendments, enforcement of contract has become the norm over damages. 

These systemic changes would make it easier to develop viable models for third party funding. Third party funding of class actions against large corporations, especially on the back of a new political and social will to protect the environment, privacy, air and water would also gain a lot of traction, although perhaps at a later stage, only after the lower hanging fruits have been picked.

#9
Export growth

Export growth is likely to be an area of priority for government policy if the dream of creating a 5 Trillion USD economy has to become real. Even government chasing it will mean a sharp focus on export growth, where India must claim a bigger share in world exports.

This will require stronger enforcement of environmental, labour and safety norms, increasing work for lawyers working in this very nascent area. 

This would also require more investments in manufacturing, organized agriculture and agro processing, agritech companies, technology products and services. This may see growth of work for investment and transactional lawyers.

Export-import, customs, international tax, transfer pricing and international trade law will also be a major areas requiring fresh infusion of legal talent if anything like this actually picks up.

#10
Insolvency and bankruptcy

This is the classic area that is supposed to jump up when recession hits. In India, this is already a booming area of work with insatiable hunger for trained lawyers at present. This is only likely to go up even further as economic crisis deepens. It’s indeed a great time to learn IBC and start practicing at the NCLT. 

#11
Loan recovery and cheque bounce cases   

Money recovery work will go up manifold for lawyers as an economic crisis will result in defaults across sectors. There are two kinds of clients here, one would be banks, NBFCs and new age fintech companies. Recognised financial institutions are protected by certain favourable laws as financial creditors. There are special proceedings for them which makes recovery a bit easier. However, the sheer volume of these cases would mean a lot of lawyers, especially junior lawyers, finding gainful employment. 

On the other hand, there would be vendors and service providers with a lot of unpaid debts, who will pursue the same through various types of cases – ranging from criminal complaints, insolvency petitions to cheque bounce cases and summary suits.

Lawyers who have made some name in this work have very exciting times ahead.

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This article is written by Amanat Raza, a student of faculty of law, Aligarh Muslim University. In this article article, he has discussed the concept of delegated legislation, What are its advantages, types and reasons for its growth.

Introduction

In the realm of legal theory, delegated legislation is one of the most debatable issues because of its various implications. Indian democracy is said to rest on the acclaimed four pillars and these are the legislature, the executive, the judiciary, and the press. These pillars are empowered by the constitution not to interfere in the matters of others. As per the Constitution, the legislative has legislative powers and the Executive has the power to execute the laws. Similarly, the Judiciary has the power to resolve dispute and to met out justice. But we have to keep in mind that there are multifarious functions that have to be performed by the Legislature in welfare states and it is not an easy task for the legislature to look after every matter.

In contrast to this increasing legislative activity, the legislatures are not able to find adequate time to legislate on every minute detail. They have limited themselves to policy matters and have left a large volume of area to the Executive to make rules to carry out the purposes of the Legislature. In such types of situation, the system of delegated legislation comes to our mind. Therefore, the need for delegation is necessary and is sought to be justified on the ground of flexibility, adaptability and speed. This delegation is also known as ‘secondary legislation’ or ‘subordinate legislation’. The Act that gives the executive the power to legislate is called the ‘Enabling Statute’ or ‘Parent Act’. The standard of rule of the majority has made authoritative controls inadequate. The term delegated legislation is hard to characterize. 

Meaning of delegated legislation

‘Delegation’ has been defined by Black’s Law Dictionary as an act of entrusting a person with the power or empowering him to act on behalf of that person who has given him that power or to act as his agent or representative. ‘Delegated legislation’ means exercising of legislative power by an agent who is lower in rank to the Legislature, or who is subordinate to the Legislature. Delegated legislation, additionally alluded to as an auxiliary legislation, is an enactment made by an individual or body other than Parliament. Parliament, through an Act of Parliament, can allow someone else or some body to make enactment. An Act of Parliament makes the system of a specific or particular law and tends to contain an outline of the purpose for the Act. By delegating the legislation by Parliament to the Executive or any subordinate, it empowers different people or bodies to integrate more details to an Act of Parliament. Parliament along these lines, through essential enactment (for example an Act of Parliament), licenses others to make laws and guidelines through delegated legislation. The enactment made by authorize person must be made as per the reason set down in the Act of Parliament.

According to Sir John Salmond, “Subordinate legislation is that which proceeds from any authority other than the sovereign power.”

Justice P.B Mukherjee also observed about delegated legislation that it was an expression which covered a multitude of confusion. He viewed it as an excuse for the Legislature, a shield for Executors and a provocation to the Constitutional Jurist.

According to M.P Jain, this term can be used in two senses:[1]

• Exercise by subordinate agency or agency that is lower in rank to legislature delegated to it by the Legislature.

• The Subsidiary rules made by the Subordinate Authority in the execution of the power bestowed on it by the Legislature.

Delegated legislation is, referred to as Subordinate, Ancillary, Administrative legislation, and Quasi-Legislation.

History of delegated legislation in India

The historical backdrop of the delegation of power can be followed from the Charter Act of 1833 when the East India Company was recapturing political impact in India. The Charter Act of 1833 vested the administrative powers only in the hands of the Governor-General-in Council, which was an official body. He was enabled to make laws and guidelines for revoking, correcting or modifying any laws or guidelines, which were for all people regardless of their nationality. In 1935 the Government of India Ac, 1935 was passed which contained a serious plan of delegation. The report of the Committee of Ministers’ Powers was submitted and affirmed which completely settled the case for assignment of forces and appointment of enactment that was viewed as inescapable in India.

However, our Constitution depended on the separation of power; a total partition of forces was unrealistic henceforth it kept up the holiness of the tenet in the cutting edge sense. The Indian Constitution does not deny the assignment of forces. Then again there are a few arrangements where the official had been conceded with the administrative forces. For instance, the administrative forces of the President under the Indian Constitution are prominent. The problem of the delegation of legislation in India originated under the British rule when the controversy on the problem in the West was in full swing. In independent India, the conflict of settling the problem of the delegation of legislative power was prima facie to a conflict between the English and American type of solution.

The Constitution of India comprises of more than four hundred Articles and it had not been surprised if the Constitution makers include some solution for it. But why these provisions were incorporated in the Constitution? This is because the politicians in the Constituent Assembly tended to multiply legal formulations. These issues were of minor importance on which legal formulation was made in comparison to other greater constitutional issues that were by-passed by the Assembly that were left to future accord or judicial interpretation. In the case of Queen v. Burah[2], nature and extent of Legislature power and the feasibility of its delegation was considered by the Privy Council. The Privy Council, in this case, held that Councils of Governor-General was supreme Legislature and has ample number of powers and who are entitled to transfer certain powers to provincial executors. At the time of passing of New Delhi Act of 1912, the Privy Council accepted the transfer of Legislature power to the Executive. 

Delegated legislation under the Constitution of India

Although the concept of delegated legislation was not mentioned specifically in the Indian Constitution it can be understood by interpreting Article 312 of the given Constitution. This Article gives right to the Rajya Sabha to open a new branch of All India Service with a majority of two-thirds majority vote. This means that some powers of legislation will be delegated to the new recruiter of All India Service. There are many cases through which delegated legislation under the constitution of India can be understood. These are:

D.S. Grewal v.The State of Punjab [3]

Facts: This case questions the constitutionality of All India Service Act, 1951. The appellant was appointed to All India Service and posted to the State of Punjab. He held the charge of Superintendent of Police in various districts but was reverted or return to the post of Assistant Superintendent of Police in August 1957 and was posted to Dharamsala in March in the year 1958. In the same month, he was informed that an action has been taken against him under Rule 5 of the All India Services (Discipline and Appeal) Rules, 1955. An enquiry committee was set up against him under the leadership of Shri K. L. Bhudiraja. He then immediately made an application under Article 226 of the Indian Constitution before the Punjab High Court challenging the constitutionality of the Act and legality of the enquiry against him. Six contentions were made by the appellant lawyer.

Judgment: K.N. Wanchu, Justice of the Supreme Court at that time, dealing with the power of delegated legislation under Article 312 of the Indian Constitution. As the case has been very serious the appellant can be removed or compulsorily dismissed from the post by the Central Government and therefore Central Government has instituted enquiry against him. There is nothing mentioned in Article 312 of the Indian Constitution that takes away the power of delegation.

• The delegation power of India and America is that the Congress doesn’t have much power of delegation but it is different from the English in which the parliament is supreme has an excess of delegating power.

Panama Refining Co. v. Rayan[4]

Facts: Section 9(c) of the National Industrial Recovery Act, 1933 authorizes the President of the United States with some powers under which he can make any order and violation of that order may lead to panel provision. The President issued the prohibition made by the above act through the executive and authorized the Security of Interior to exercise all the powers vested in the President under section 9(c) of the Act. The Security of Interior issued a regulation to accomplish the President’s order(s). The Section mentioned above was challenged on the ground that it was an unconstitutional delegation of legislative power by the Congress.

Judgment: It was held by the Supreme Court of the United States that delegation of legislative power given by President is void. The court held that Congress can delegate power to the Executive only on  two conditions. Firstly, the Statute laid down these policies. Secondly, one has to establish the standards and give the administration the power of making the subordinate rule within the given limit.

Sikkim v. Surendra Sharma[5]

Facts: After Sikkim became the State of the Union Of India, the Directorate of Survey and Settlement of Government of Sikkim created and advertised for certain temporary posts. Like other people, the respondent has also applied for the post. They got selected and were appointed in different capacities. After the survey work got completed some of the employees got terminated from the job. In 1982, some of the employees, who were ‘not locals’, filed a writ petition in the High Court of Sikkim challenging the decision of the Government asking why it has fired the employees from the service on the ground that they were not locals.

Judgment: The judge held that the termination of the employees solely on the ground that he is not local is impermissible under Article 14 and 16 of the Indian Constitution. It was held that all rules and legislations created under the power which is granted under sub-clause (k) of the Article 371F constituted subordinate legislation. This article was added to the Constitution through the 36th Constitutional Amendment.

Types of Delegated Legislation

Delegated legislation means giving power or authority to someone lower than his rank to make laws. So there can be many ways in which this excess of power can be given to subsidiary rank people or an Executive. These types are as follows:

• Orders in Councils: This type of Delegated legislation can be given by Queens or the Privy Councils. This Delegated legislation allows the Parliament to make laws without going through the Parliamentary proceedings. Today, its main use is that it gives legal effect to European directives. When the order issued under the privilege of the Queen or the Crown such order is subject to review by the courts. But order issued by the Parliament may or may not be subject to review by the courts as it is made within the prescribed limits Act of Parliament. In both the case the question can arises that if this legislation is the same as the Executive legislative. The answer to this question is yes, it is equivalent to executive legislative. There is no major difference between these orders and Executive legislative almost they both are same. The meeting of Privy council in such case could simply means a meeting of some Privy Councillors which includes three or four ministers, President, Councils and Clerk of Privy Councils. This shows that this order is issued by the Executive who exercises powers of the Council. 

• Rules of the Supreme Court and the County Courts: The Parliament by statutes bestow some persons or authority with the power to make laws for a specific purpose. But it is different in England where a Court has been given wide power to make laws. This task of making law has been entrusted upon the Rules Committee of the Supreme Court and the County Courts. Entrusting Judicial branch to control its Procedural law to a great extent has an advantage as it is given to that authority who knows better about it than any person. Procedure and cost that are drawn by Rules Committee of County Courts deals by the County Courts itself. Such rules are not subject to the control of Parliament. When these rules used to come into force? It comes into force when the Lord Chancellors with the consent of the Rules Committee of the Supreme Court confirms it.

• Departmental or Executive instructions or regulations: When the power of legislature directly delegated to the administration such as a Board, Ministers or a Committee, then the exercise of that given power results in delegation through Departmental or Executional Instructions or Regulations. Sometimes very wide powers are given to the administration or the delegated person. But this wide delegation of legislation is not accepted by the judiciary as it is difficult for them to control administrative action. There is extensive use of this delegated legislation in today’s world. Nowadays only the broad line of making legislation is in the hands of Parliament and the rest power is given to the Administrator. 

1. Delegated legislation by laws: It can be given in two ways, firstly, it can be given by laws of autonomous bodies, e.g., Corporation and secondly, it can be given by-laws of a local authority.

• • By-laws of autonomous bodies: These autonomous bodies have got the power to pass by-laws on matters affecting them and other people in that locality or people residing in a particular area. For example, they can make laws as public utility authorities for light, water, etc. Usually, these authorities are given the power to make rules for regulating their working. Such by-laws are subject to judicial review. It can be reviewed to check that it must not be ultra vires the Parent Statute. These autonomous bodies have the power to frame rules for themselves. One more example of this autonomous body is an association of Employers. The rules of these association are termed as voluntary but this is not so in reality. It is fictitious as in its effect these rules are binding upon members like other rules such as rules of a professional association, industrial organisation, etc.

• By-laws of the local authority: Parliament has the power to make new local bodies or it can alter the existing body. It empowers such body with powers to make by-laws for themselves for specific purposes. These authority exercises excess power for public health, safety, and for good rule and governance. These by-laws incur a penalty on its breach.

Reasons for growth of Delegated Legislation

Many factors are responsible for the rapid growth of delegated legislation in today’s time. Because of the radical change in the governance of a country from ‘police state’ to the ‘welfare state’ the function and the need of delegated legislation have increased. These factors and reasons for growth of delegated legislation can be seen as follows:

• Pressure upon time of Parliament: The area, scope, or horizon of state activities are expanding day by day and it is difficult for the Parliament to make laws on each and every matter as they are having a lot  of work to do and they also have to make legislation on various matters. The Parliament is so much occupied with matters concerning foreign policy and political issues that it has not much time to enact the laws in detail. So it only frames the broad part of the rule and outline of the legislation and gives that legislation to the executive or some of its subordinates to fill the full detail following the necessary rules and regulations. It is like they have given the only skeleton and the subordinate have to fill flesh and blood to the skeleton to make it alive. The committee on Ministers’ Power has observed that if the parliament is not willing to delegate law making power to the subordinate then he will unable to pass the quality of rules and regulations that a person needs to live a happy life or legislation which a modern public requires.[6] 

• Technicality in the matters: With the progress and advancement in society, things have become more twisted, complicated and technical. So to understand the technicality of each and every topic, legislature needs the expert of that particular topic who is well aware of  each and every detail of that matter. Over the years it has been observed that some legislature only know politics and some might have knowledge about one or two topics. Therefore, after framing policies by the parliament on any topic, that topic is given to the government department or any particular person who knows about the technicalities of that particular topic and given the power to lay down the details.

• Flexibility: Parliamentary amendment is very slow and it requires a process to make any type of law but by the tool of delegated legislation it can be made expeditiously with the help of the executives, e.g., police regulation, bank rate, import and export, foreign exchange, etc. Also, Parliament cannot foresee the contingency while enacting a law so to make it foresee the workload is being given to the executives. So it is necessary to give work to lower body to have that work in a smooth and better manner. 

• Emergency: In any type of emergency one should know how to deal with it quickly without any delay. The legislature is not equipped with the skills of providing an urgent solution to meet the situation of emergency. Delegated legislation is the only way to meet that situation. Therefore, in times of emergency and war, an executive is given wide power to deal with that situation. Some examples of delegation in England during the First and Second World War are the Defence of the Realm Act 1914-15, the Emergency Power Act, 1920, etc. Similarly, in the case of inflation, flood, epidemic, economic depression, etc immediate remedial actions are necessary.

• Experiment: The practise of delegated legislation enables the Executive to experiment. As every work is new for the legislative and he has to experiment that either this law is working in perfect condition or not. This method or approach permits the utilization of experience and implementation of the necessary changes in the application of the provision made by the Parliament. For example, in traffic matters of the road an experiment method can be conducted and in the wake of its application necessary changes can be made in the provisions. The advantages of such a course is that it allows the delegated authority to consult the interest of people at the ground level that what type of law is affecting them and then he makes an experiment by altering the provisions.

• Complexity of modern administration: Modern administration used to take added responsibilities when it came to upraise the condition of the citizens such as looking after their employment, health, education, regulating trade, etc. Therefore, the complexity in modern administration and expansion of states’ function to the social sphere and economic have allowed the formation of a new form of legislation and to give wide powers to various authorities on various occasions. It is important that an administration should give an excess of power to activate socio-economic policies. In a country like Bangladesh where control over private trade, business or property may be required to be imposed, it is necessary that the administration should hand over the excess amount of power to implement such policy.

Therefore, we can say that there is a rapid growth of this delegated legislation and also it is necessary for a country to run smoothly.

Constitutionality of delegated legislation

It basically means the limits that are permissible within a Constitution of a country through which Legislature with all his right can delegate its power of rule making to other agencies of administration. The aim of extending the power of the government is to handle socio-economic problem.

• Position in USA: Delegated legislation is not allowed theoretically in the constitution of the USA because of the two reasons. These are, “Separation of Power” and “Delegatus non potest delegare”. There is no reference of text has been given in the Constitution of the USA which shows that it delegates its power from Legislature to the Executive. Congress was itself a delegatee then how can it delegate its powers. The political theory that was propagated by philosophers like John Locke and Montesquieu were imbued on the framers of the American Constitution. John Locke has said that a legislative cannot delegate his powers of lawmaking to any person or cannot place it anywhere. He further stated that there should be separate Legislature and Executive because if the power of law making and execution of that laws go in one hand it can be misused and these people use that power to exempt them from that law and use it for their private advantage. So the doctrine of ‘delegatus non potest delegare’ has been given by John Locke it means the same as what we have explained above.

Another philosopher, Montesquieu has given the concept of ‘Separation of Powers’. According to Montesquieu, one person cannot exercise all the three powers of the government i.e., the Judiciary, the Legislature, and the Executive. The Legislature should make laws and should not enforce or administer it. Similarly Executive should not interfere in the work of Judiciary and Legislature and Judiciary should be free from Executive and Legislature. All should do their work separately. In America, the power to make legislation has been given to the Congress, executive powers given to the President of the USA, and the judiciary power of the United States is vested in the hands of Supreme Court and also it might be given to lower court from time to time on the ordain of the Congress.

Due to the adoption of separation of power by the United States, the legislative power can be vested only in the hand of Congress and no organs of the government. Further, it has argued that the power to the Congress itself has been delegated by the American Constitution so it cannot further delegate its power. In case of Field v. Clarke,[7] it has been observed by the Supreme Court of America that the power entrusted to one department should only be exercised by that department without interfering in the power or area of another person. But in some other cases of Supreme Court of America, it was observed that in non-legislative power such as rule-making power or quasi-legislative powers can be delegated by Legislature to the Executive. In Wagman v. Southard,[8] Chief Justice Marshall observed that the line has been not drawn between those subjects which were important and, therefore, regulated by the Legislature itself and those subjects of lower interest which were given to the Executive for filling the details in the structure of that legislation.

So to conclude about the delegated legislation in America it can be said that it has not been accepted in principle but in practice, the Legislature has entrusted the power of law-making to the Executive.

• Position in England: The doctrine of parliamentary sovereignty is the core element of the UK Constitution. In England the Parliament is supreme and there is no limitation by the Constitution on the Parliament. Also, Parliament in England has wide powers of delegating its legislative power to the Executive or other subordinate bodies. Committee on Ministers’ Powers also refers to as Donoughmore Committee released a report in which a famous lawyer of England, Sir Cecil Carr has quoted about three parts of legislation. These are as follows:

• The first and the very smallest part is made by the Crown under her prerogative powers.
• The second and the weightiest part is made by the King in the Parliament and it consists of Acts of Parliament.
• The third and the bulkiest part is made by such body whom the King entrust the power of legislation in the Parliament.

Sir Cecil Carr has also observed that the truth is that if the parliament is not willing to delegate the law-making power, the Parliament is unable to provide quality and kind of legislation the modern public wants.

• Position in India: The position and Constitutionality of delegated legislation in India can be seen in various cases. It is divided into two phases i.e., before independence or we can say it as pre-independence and post-independence.

• Pre Independence: In Queen v. Burah, only Conditional Legislation has been validated by the Privy Council and therefore delegated legislation is not permitted as per its reasoning. The administration of civil and criminal justice of a territory can be vested in the hands of those officers who were appointed by the Lieutenant-Governor from time to time.

The Privy Council has stated that it is better to take help from the subordinate agency in framing the rules and regulations that are going to be the part of the law and giving another body the essential legislative features that has only given to the Legislature through the Constitution. He also stated about the essential legislative function that included in determining the legislation policy.

In King v. Benori Lal Sharma, Condition legislative was again applied by the Privy Council, the same as in the case of Queen v. Burah. In this case the validity of the Emergency Ordinance given by Governor-General of India was challenged inter alia. It was challenged on the ground that he is taking the power of the Provincial Government. He was setting up special criminal courts for particular kind of offences but for the settling of any court, power has been given only to the Provincial Government. The judicial committee held that this is not delegated legislation. Privy Council also held that it is an example of an uncommon legislative power by which the local application of the provision of State determined by the local administrative body when it is necessary.

• Post Independence: The Constitution of India does not provide the same position as the prominent British Parliament provide to the delegation of legislative powers and also how far delegation is permissible has got to be confirmed in India as a matter of construction from the express provisions of the Indian Constitution. It cannot be said that an exhaustible right of delegation is inherited in the legislative power itself.

In the case of Raj Narain Singh v. Chairman, Patna Administration Committee Air,[9] the Supreme Court of India upheld the delegation of power given to the executive by the legislature.

Lachmi Narain v. Union of India[10]

Facts: The Central Government exercising the power that it has got from Section 2 of the Part State (Laws) Act, 1950, which extended the Bengal Finances (Sales Tax) Act, 1941 to the Part State of Delhi with certain modification in Section 6 through a notification. By various notifications, the granted sales tax on various commodities was exempted but subsequently, the exemption was withdrawn by another notification. Dealers who are indulging in those commodities, challenges the validity of that withdrawal.

Judgment: It was held in this case that the notification issued by the Central Government is beyond its power conferred on it by Section 2 of the Union Territories (Laws) Act,1950 and in consequence of any type of notification issued by the Central Government is invalid and ineffective.

Advantages of delegated legislation

There are many advantages of delegated legislation as it is essential for a democratic country to flourish or make laws according to its public. These advantages are as follows:

• Reduce the workload of Parliament: The Parliament has to pass several legislation within a short span of its life. It has to take such type of intensive work that it can hardly enact the law provisions in detail. If the Parliament devotes its time in laying down minor and subsidiary detail of each and every legislation by making all the rules required for that legislation then it will take too much time and in that time it can only deal with a small amount of Act in detail. It is lengthy, time consuming process and also it is expensive to operate Parliament process. It cannot cope up with the growing needs of legislation. So there arises the need to overcome that load and it can be possible only through delegating ones legislative authority to the subsidiary ones or the executives. Delegated authorities which an expert resides are more appropriate to make laws and to meet the needs of the community. It saves ample amount of time of the Parliament because it gives the members a chance to create or to make rapid changes in small items.

• Technical Expertise: Today’s world has become very technical and complicated by the introduction of modern means and advancement in technology. So it is necessary for the members of parliament to know each and every field but one cannot be the master of all fields. Therefore, it is difficult for the members of Parliament to have all knowledge needed for making laws in various fields like on controlling technology, ensuring environmental safety, dealing with various industrial problems which need basic knowledge. Also, Parliament is not a forum which can make laws on administrative and technical details but it is more concerned with social issues and the rule of law. Therefore, it is thought that it is better for the parliament to debate on the broad topic or the main topic and leave the rest detail for the fulfilment by the expert of that particular field. Thus, delegates authorities with extra skills, experience, and knowledge are more suitable for making law.

• Decentralized decision making: The local councils are more suited to make laws for their constituencies as they better know the condition of their constituencies than any other. These local bodies can make better laws for their area that a Parliament cannot do so because they knew their locals need, whats they want? And it is very essential to know a person for whom we are making laws. The Parliament makes the laws for broad principle while its delegate handles the local principle. This separation of power helps in the smooth running of the legislature.

• Emergencies: Delegated Legislation allows for rapid action in case of an emergency  but Parliament take too much time in taking any decision. It has to call for a session then the Parliamentarian discusses the emergency topic. And after that, if they all conclude then only that act would have passed. In some cases, the Parliament have not enough time to accurately make a piece of legislation and a quick and safety legislation is required for the safety of a nation. For example, in the UK, the Prevention of Terrorism Act was created as delegated legislation and now this act has added a new prohibited group to the terrorism. Therefore, it is more appropriate for the delegate authorities to make legislation and deal with it.

• Enables flexibility: In delegated legislation, Parliament makes law in broader skeletal form and the executive had to fill the minor details. So these minor details can be changed immediately without making any amendment in the Parliament. Therefore, it is flexible and the legislation made by this can be best for the needs of modern public.

• Seeing the interest of affected person: To make  legislation effective it is important to know the need and interest of that person who is going to be affected by that law or legislation. Only sitting in big houses and making a decision for the affected person is easy but knowing their interests and their needs by living with them in the same condition in which they are living is tough and then making law for them will surely benefit that affected person. Therefore, it is necessary to delegate the rights of legislation by the Parliament to the Executive. The Executive knows the condition of the affected person better than the Legislature.

• Experimental basis: It can be used as an experimental basis. It allows in quick lawmaking. If a law made for some circumstances and it does not fulfill the condition for which it has made then it can be changed and a new law can be made at the place of the older one. And if this law gets fitted according to the situation then this law will prevail in that area. In this way, it is an advantage in the view of modern public.

Judicial control over delegated legislation

The delegated legislation can be challenged in India in the courts of law as being unconstitutional, excessive and arbitrary. It can be controlled by the Judiciary on two grounds i.e., firstly, it should be on the ground of substantial ultra vires and secondly, it should be on the ground of procedural ultra vires. The criteria on which the law made by the executive can be considered as void and null by the court is that it should not be considered inconsistent by the constitution or ultra vires the parent act from which it has got the power of making law. The power of examining the delegated legislation in India has been given to the Supreme Court and the High Court and they play an active role in controlling the delegated legislation.

Judicial control over delegated legislative is exercise at the following two levels:

1. Challenging the delegation as unconstitutional
2. Improperly exercise of Statutory power.

No delegated legislation can survive clashing with the provisions granting Fundamental Rights. If any Acts violate the fundamental rights then the rules, regulations, and by-laws framed under it cannot survive. In India as well as in America the judicial control over the delegated legislation is based on the doctrine of ultra vires. Also, there are various methods through which judiciary in America exercises control over delegated legislation. 

The two main approaches taken by the judiciary in America for justifying the delegation of legislative power to the executive are:

1. Filling up the details approach.
2. Intelligible principle approach.

In the first approach, the Congress should lay down the standard policy for the guidance of executives and the executives have to fill the further details and carry out the policy of legislation according to the standard laid down by the Congress.

In the second approach, the court will review the delegated legislation if ultra vires the enabling statutes or it is not in accordance with the provisions mentioned in enabling statutes.

Cases that illustrate the Judicial control over the executives

• Kruse v. Johnson:[11] The court laid down in the case that by-laws would be unreasonable on the following ground.

• It should not be partial or unequal
• It should not be manifestly unjust
• It should not disclose bad faith
• It should not involve oppressive interference with the right of the people that it could find no justification in the mind of the reasonable person.

• Delhi Law Act Case:[12] In this case the power is given to the Central Government through an act to repeal the pre-existing law held to be ultra vires.

• Chintaman Rao’s Case:[13] Prohibition of making bidis in the agriculture season by the Deputy Commissioner is violative of Article 19(1)(g) of the Indian Constitution.

• Chandran v. R: It was held in this case that if the power of by-laws entrusted in the hands of the Legislature, then it must be within the limits of the Legislature and if it exceeds the limit then this by-laws can be struck down.

Effectiveness of Parliamentary control over delegated legislation

It is on the parliament to confer on anyone its power of legislation whom it likes, but at the same time, it has to see that if the power that has been conferred to the person is using that power for the public or not. If that person is misusing that power the Parliament can take that power back. It must ensure that there should be no misuse of that conferred power.

In Avinder Singh v. State of Punjab, Krishna Iyer J. appropriately expressed that parliamentary authority over designated enactment should be a living continuity as a protected need. The authoritative command over the organization in parliamentary nations like India is more hypothetical than practical. In truth, the control of the Parliament is not that much effective as it needs to be.

Jain and Jain stated about the control of the legislature over the delegated legislation that “It is the function of the legislature to legislate in a parliamentary democracy. If it seeks to delegate its legislative powers to the government due to a few motives, it is not the right of the legislature, but additionally its duty, as predominant, to look how its agent i.e. the executive carries out or maintain the company entrusted to it.”[14] Since it is the legislature which delegates legislative power to the executive, so it is its primary duty to check whether the entrusted the power is working properly or not and also it has power to supervise and control the actual exercise of this power. In the U.S.A., the government is not responsible to the Legislature and Congressional control of delegated regulation is in most cases indirect. However, the Congress can also direct administrative groups to put up the periodical and unique reports or to give an account of their activities. In the USA, Congress has no effective control over delegated regulation due to the fact the President of the USA is not accountable to the Legislature.

However, in India, there is a Parliamentary form of Government and the Prime Minister is accountable to the Legislature. So in India Parliament can exercise direct control over the Government. In India committees regarding control of delegated rules are formulated through Parliament for both houses every year. The principal characteristic of each committee is to scrutinize the statutory regulations, to make legal guidelines for the public, etc. made with the aid of any administrative frame and reports to the residence whether or not the delegated power has been exercised nicely within the limits provided underneath the Parent Act or the Constitution. However, in America no such type of powers are given to Legislature and also Legislature has no power to exercise direct control over delegated legislation made by the Executive. So it is essential to keep concord between Legislature and Executive in a democratic society and also there needs to be a powerful system of management of the Legislature over the Executive so that government cannot misuse their powers while making delegated rules.

Case laws

• Kruse v. Johnson

Facts: In this case, under the authority of the Local Government Act 1888, the Kent County Council made a by-laws. This law states that nobody could play music or sing a song within 50 yards of dwelling house in public place or highway after being requested to stop by a constable. The claimant was singing a hymn within 50 yards of the dwelling house and had refused to stop after the constable had told him to do so. He was given a penalty. He sought for judicial review to declare that the by-law was void.

Judgment: Lord Russell CJ, giving the courts leading judgment, held the by-law became valid on the ground that it becomes no longer unreasonable, due to the fact that it does not have a discriminatory impact on the population.

• Chintaman Rao Case

Facts: Section 3 and 4 of the Central Province and Berar Regulation of Manufacture of Beedis Act, 1948 grants power to the Deputy Commissioner to fix the period of agriculture season with respect to a certain village where the Act applies. The Deputy Commissioner has the power to prohibit the manufacturing of bidis and no person is authorized to manufacture bidis.

On 13th June 1950, an order was issued via the Deputy Commissioner of Sagar prohibiting the people in certain villages to manufacture bidis. When the case is dealt by the Hon’ble Supreme Court, the period cited within the order expired and another order covering the agricultural period from 8th October 1950 to 18th November 1950 was issued and the same order was questioned in the present case. Does the question arise whether the impugned Act is falling within the saving clause or excess of its provisions?

Judgment: It has been held in this case that prohibition of making bidis in the agriculture season by the Deputy Commissioner is violative of Article 19 1(g) of the Indian Constitution.

Criticism on delegated legislation

Following are the criticism of delegated legislation:

1. Delegated legislation results in overlapping of functioning  as the delegated authorities get work to amend the legislation that is the function of the legislators.
2. It has been a matter of question that if the Legislature control has come down after the arrival of the delegated legislation.
3. Unelected people cannot make much delegated legislation as it would be against the spirit of democracy.
4. After getting too much power from the Legislature, the Executive has encroached upon the domain of legislature by making rules and regulations.
5. The enactment subject that was appointed to less Parliamentary scrutiny than essential enactment. Parliament, along these lines, has an absence of authority over appointed enactment, and this can prompt irregularities in laws. Appointed enactment, in this way, can possibly be utilized in manners which Parliament had not foreseen when it was given the power through the Act of Parliament.
6. Delegated legislation makes laws without much discussion. So, it may or may not be better for the public.
7. Designated legislation by and large experiences an absence of exposure. Since the law made by a statutory authority not informed to general society. Then again, the laws of the Parliament are generally broadcasted. The purpose of the absence of exposure is the enormous degree of enactment that is being assigned. There has likewise been concern communicated that an excess of law is made through appointed enactment.
8. It can possibly be misused for political gain. The executive makes law according to what the political parties. Hence, it results in the misuse of the legislation made by the Executive by the ruling party.
9. Executives become too powerful as it already has the power of executing any laws and legislation and now the Legislature is delegating its legislative power to the Executive. So, both the power are in the hands of the executives now he can use this power in whatever way he wants to use it.
10. It is against the theory of the power of separation which has been given by the famous political thinker Montesquieu.

Conclusion

Delegated or subordinate legislation means rules of law made under the skilled person of the Act of Parliament. In spite of the fact that lawmaking is within the capacity of the lawmaking body, it might, by a resolution, delegate its capacity to different bodies or people. The resolution which delegates such power is known as the Enabling Act. By Enabling Act the council sets out the wide rules and nitty-gritty principles are instituted by the delegated authority.

If in India the control of Parliament over the delegated legislation has to be made a living continuity, then it is important that the job of the advisory groups of the Parliament must be fortified and a different law like the Statutory Instruments Act, accommodating uniform standards of laying and production, must be passed. The board of trustees might be enhanced by a specific authority body to make the watchfulness of assigned enactment progressively successful. Other than the different measures mentioned above, it should be taken to reinforce the control of Parliament over designated enactment. The tenets and standards created by the Legal Executive should be connected by the necessities of the advanced age. In spite of the fact that there are no express arrangements in the Constitution of India to allow the appointment of authoritative power, the legal pattern saw in regard of assigned enactment is as per the aim of establishing fathers our Constitution whose principal concern was the flexibility of the Constitution with changing needs of the time. If you want to make certain that the power of delegated law in the arms of the government is not misuse, it is vital to adopt powerful modes of control as applicable in the USA which India has now not integrated yet. 

Reference

1. https://www.jstor.org/stable/43951254?read-now=1&seq=3#metadata_info_tab_contents
2. Queen v. Burah,  [1878] UKPC 26
3. D.S. Grewal v.The State of Punjab, 1959 AIR 512
4. Panama Refining Co. v. Ryan, 293 U.S. 388
5. State Of Sikkim vs Surendra Prasad Sharma, 1994 AIR 2342
6. https://rajyasabha.nic.in/rsnew/practice_procedure/book13.asp
7. Field v. Clarke, 143 U.S. 649 (1892)
8. Wagman v. Southard, 23 U.S. 10 Wheat. 1 1 (1825)
9. Raj Narain Singh v. Chairman, Patna Administration Committee Air, 1954 AIR 569
10. Lachmi Narain v. Union of India, Air 1976 Sc 714
11. Kruse v. johnson, [1898] 2 QB 91
12. In Re The Delhi Laws Act, 1951 AIR 332
13. Chintaman Rao and Ors. v. State of Madhya Pradesh, 1951 AIR 118
14. Jain, M.P. & Jain, S.N.; (2007) Principles of Administrative Law, 6th Ed., Vol. II, Wadhwa Nagpur.

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This article is written by Akash R. Goswami of Faculty of Law, Aligarh Muslim University. In this article, he has discussed the offence of Affray in regards to the Indian Penal Code and Common law and how Affray is different from Assault and Riot. 

Introduction

People lived in a society with peaceful and amicable manner. But on the contrary, there are some disturbing elements in the society, who whether unknowingly or sometimes intentionally create a sense of hatred and destroy the tranquillity of the society.

People start fighting in a public place and wreck the peace, which ultimately affects people. This conduct is known as the offence of AFFRAY. In the view to Blackstone, “The offence is to commence the fight between two or more persons in a public place to formed terror of His Majesty’s subjects, the turning point is if the fight is in private, it is not the offence of affray but an assault.” The upshot of the offence is coupled with fear, it causes to the public. 

The word ‘affray’ originated from the French word ‘affraier’ signifies ‘to terrify’ and so, in a legal sense it is considered as a public offence causing terror to the people. For the conviction to put under this offence, it is enough that an alarm of fear would have been caused to the public or members of the public. It is not necessary that any particular member of the public must give evidence to the effect that he was alarmed. The presence of the public at the time of committing this offence could be enough to show that the members of the public must have been cautious about their life by reason of the perturbation and there was sufficient evidence to show the disturbance of the peace. it is a public order offence and type of disorderly conduct which is considered as breach of peace. Affray is an offence that possessed unlawful fighting or a display of force by at least one person against one or more people. It is also the threat of violence, which is more physical rather than just verbal and a common-law offence which is triable by a Judge or Jury. Also, it can be committed in private places as well as public areas.

Affray meaning

The word “affray” means a tussle or fighting between two or more persons, and there must be a stroke hit or offered, or a weapon drawn. An affray is committed in a public place and strives the terror in the mind of the people. Section 159 of the Indian Penal Code provides that ‘Affray’ is defined as “When two or more persons by way of a brawl in a public place, disturb the public peace, they are said to commit an offence of affray.”

The punishment for committing the offence of affray is imprisonment for a term prescribed or may extend to one or fine upto one hundred rupees and shall be both simultaneously provide in Section 160 of the IPC. This offence necessarily postulates the commencement of a definite assault or a breach of the peace. Mere quarrelling or abusing in a public place can not be considered as an exchange of blows moreover, this will not be enough to draw the attention of Section 160 IPC because a fight is a necessary element to possessed affray. This impliedly means both the parties have to be in a state of aggressiveness and should actively participate in the struggle.

Affray under English Law

In English law provides that, if two or more persons scuffle in a public place to form the terror of the sovereign’s subjects, this will be considered as committing an offence of affray and is a misdemeanour or felony in common law. To warfare in a private place or at a place where no persons are present except those who abet and aid, does not constitute affray. But an assembly for such object is surely unlawful, and the parties may be convicted for an offence relating to affray. 

It is an aggravated form of affray to violently disturb and create obstruction for the officers of justice in the due execution of their duties, by the way, rescuing the person legally arrested, or the attempt to make such a rescue. Committing that offence is severely punishable in the Queen’s Courts, or even in the palace yard which is near to those courts and it is highly blameworthy even when it committed in the presence of a lower court of justice. Quarrelsome, abusive and threatening words themselves cannot, in law, create such terror so as to constitute an offence of affray, still there might be an offence of affray without the presence of violence shown, as where the persons are themselves armed with dangerous and menacing weapons, in such a manner it will develop naturally a cause terror in the minds of people which is an offence in the common law. In the absence of any direct evidence or proof, it is enough to prove an offence of affray that any subject of the Queen was in fear of intimidation or terror to show that the situation were such that reasonable persons might be frightened or subdue. The offence is punishable with fine which may extend to one hundred rupees or imprisonment and shall both.

Affray under Indian Penal Code

Section 159

Affray—When two or more persons, by scuffling in a public place, disturb the public peace, they are said to “commit an offence of affray”. The offence of affray is only committed when there are two or more persons indulged in fighting, not merely verbal, and the same conduct disturbed the public peace.

Essential ingredients of Affray

An offence of affray can be postulated if it possessed the following:

• Indulgence in fighting by two or more persons.
• the fight must take place in a public place.
• such fighting must also result in the disturbance of the public peace and atmosphere.

Fighting by two or more persons

The offence of Affray is notwithstanding a fight, i.e., a bilateral act, in which two parties actively participate and it will not amount to an affray when the party who is assaulted submits to the assault without opposing it. Fighting necessarily implies a sense of competition and struggle for the mastery between two or more persons against one another. When the members of one party beat the members of the other party and the latter does not retaliate/strive back or make no alternative to retaliate but remain passive, so it can’t be concluded that there was the scene of fighting between the members of one party and the members of the other. Moreover, the offence of affray can’t be said to have been established in that case. This observation is propounded in the case of Jodhey And Ors. vs State Through Ram Sahai [1].

“Fight” behold under Section 160 IPC, is certainly different from a mere quarrel. Many qualified Jurist and Judges of the High Court and Supreme Court of India define “fight” as follows:

“To strike or struggle to surmount for victory in the battle or in single combat to attempt to defeat the opposition, subdue, or destroy an enemy, either by blows or weapons.”

“Quarrel” means that there should be a transposition of anger through utterances between two or more persons and not only the use of an ordinary tone. Though it may need two for a fight or quarrel, the difference between them is obviously apparent.

Fighting in a public place

A place where public go, it is irrelevant whether they have a right to go or not, is a public place. There is a water-tight difference between an act commence in public and an act done in a public place. In England, some provisions make acts penal which are done in public, other statutes penalize acts which are done in a public place, so that in the criminal statute law in England the distinction is, it will be based on observation, between conducting an act in public and doing an act in a public place. The same demarcation is depicted in the Acts of Indian Legislature and provision. The offence, here, ponder must be committed in a public place and in the presence of the public, when there is no individual is present than there can be no breach of the public peace.

Disturbance in the public peace

In order to possess an offence of affray, there must be not only fighting between one or more than one party but also it may cause disturbance to the public peace. As the offence protect the public in a public place, so in order to put someone under this offence, disturbance in public peace must be destroyed.

Difference between affray and assault

An affray is distinguishable from assault following points states that:-

• An affray must be committed in a public place while an assault may take place anywhere generally in private place. Someone can attack over another anywhere. It may be in their house also but for affray, it must take place in where presence of public engaged.
• The wrong is considered to be an offence against public peace or public at large whereas assault, against the person or an individual.

Difference between affray and riot 

The offence of affray differs from riot in the following ways:-

• One of the fundamental differences is that affray cannot be commenced in a private place whereas a riot can be committed in a private place.
• To commit an offence of affray there shall be a presence of two or more persons required while for a riot it is mandatory to have five or more than five people to enhance the rioting.

Defences to Affray

A person may avoid the charge of affray by demonstrating that they were acting in self-defence in order to protect themselves and their property. A defence may also be claimed on the basis that the behaviour or conduct did not affect any witness to be alarmed or in fear of loss of their own safety. A defence might also prevail when the accused can show that he was not indulged in the affray, i.e. they did not take part in a fight, or make any threats to another person.

Other defences may also pertain depending on the jurisdiction. In New South Wales, for example, it may be possible to claim a defence based on ‘necessity’ or ‘compulsion’, i.e. for that time it is an utmost thing to do and their involvement in the affray was the result of another consideration, such as the protection of children.

Punishment for committing affray

Whoever commits an offence of af­fray, shall be punished with imprisonment of either description for a term which may extend to one month, or liable to pay a fine which may be extended to one hundred rupees, or with both simultaneously.

Characteristics of an Affray

A charge of affray can be put to both sides as accused persons since both the fighting groups have deemed to commit the offence.

• The Criminal Procedure Code, 1973 has now made it a cognisable offence.
• It may be tried by any magistrate and by the jury.
• It is a non-compoundable offence.
• It is a bailable offence.

Important Case Law

Jagannath Shah v. State of Bihar[2]

There was a rebute among the two brothers who were quarrelling and abusing each other on a public road in a town. A huge number of people gathered around them. Even the traffic was struck and rush created but no actual fight broke out between them. It was held and observed by the Court that the conduct does not possessed fight and it merely a verbal, hence lack of essential of affray, no offence of affray was committed.

Babu Ram and Anr. vs. Emperor[3] 

A person was assailed and overpowered by two other persons in a public place. He could have no other way to defend himself. It was held that they were guilty of the offence because the essential of affray was there, fighting in a public place which disturbed the public peace and tranquillity or the atmosphere.

State v. Meer Singh[4]

Three men were fighting which results in the disturbance of the peace of that particular locality. It was the admitted case of both the accused persons that they were fighting in a Gali and definitely in such a fight, it was natural that disturbs the public peace and for doing that they have to suffer hence, they put for the conviction under the offence of affray.

Conclusion

Affray is an offence where two or more than two persons are involved and offered a blow to each other in order to prove the majesty over sovereign subject. And committing an offence of affray will be made liable for imprisonment and for the fine or maybe both. There is water-tight difference in common law and Indian law as far as affray is concerned, however, there are some other elements of crime like assault and riot which is different from affray but some of their ingredients seems to be similar in nature.

The offence of affray is, thus, considered as bilateral act means to flow from both directions not involve only one side, in which two or more parties actively participate in scuffle against one another which is conducted at a public place and this results in the turmoil of public peace. It involves an actual fight between the parties to constitute this offence and mere quarrelling and abusing each other would not result in offence of affray. Section 159 of the IPC defines it and Section 160 IPC prescribed the punishment for the offence.

References

1. AIR 1952 All 788
2. 1988 (36) BLJR 301
3. AIR 1937 All 754
4. https://indiankanoon.org/doc/180066587/

The post What is Affray? appeared first on iPleaders.

This article has been written by Mr. Sandeep Bhalothia is an Indian registered lawyer who is currently working in Dubai, U.A.E. and Miss. Vizita Singh is post-graduate in business and commerce and is currently pursuing her law degree from India.

The purpose of this practical guide is to help you in understanding the Data Erasure Request (also known as Right to be Forgotten) under GDPR and how to comply with such requests.

What is GDPR?

The term GDPR stands for the General Data Protection Regulation (2016/67)[1]. It is a European Union Regulation and came into force on 25^th May 2018.

The purpose of this regulation is to protect the personal data of the natural person and to regulate the free movement of the personal data within the EU[2].

A lot has already been written about the various aspects of GDPR in last one year; however, there is very little content on practical aspects of multiple requests that an organisation can receive under the GDPR. In this article, we aim to cover one such request; the Data Erasure Request.

But before that, one needs first to examine whether the GDPR applies to their organisation or not. The scope of the GDPR is divided into two components; Material Scope [3]and Territorial Scope[4], and both the scopes need to be covered for GDPR to apply to an organisation.

Scope of GDPR Application

As per the Material Scope, the GDPR only applies to those organisations which are involved in the processing of the personal data, whether through automated or non-automated means. It is important to note that GDPR defines ‘Processing’[5] and ‘Personal Data’[6], and therefore, organisations should not take their general understanding of these terms and must refer to exact definition provided under the regulation.

As per the Territorial Scope, the GDPR even applies to those organization which are not based in EU but process the personal data of the data subjects who are in EU where the processing of the data is related to offering of goods or services, or monitoring of behaviour of the data subjects, if the said behaviour takes place in the EU.

Therefore, GDPR has an extraterritorial scope of application. Please refer to Guidelines 3/2018 on the Territorial Scope of GDPR published by European Data Protection Board to have an in-depth understanding of its scope[7].

What is Data Erasure Request under GDPR?

The GDPR provides several rights to the data subjects and one of such right is the right to request for ‘data erasure’.

As per Article 17 of the GDPR, a data subject can request for the erasure of its personal data from the controller and controller must erase the said data without undue delay[8]. This provision of the GDPR gives full control to the data subject over its personal data. 

Furthermore, Recital 59 of the GDPR provides that a controller is required to provide the data subjects a mechanism to request, free of charge, erasure of the personal data. If further states that if the personal data is being processed by electronic means that the concerned data subjects should be provided with a mechanism to place the electronic request for the erasure of the personal data.

Special protection has been provided where the request to process the personal data was collected from a child, especially on the internet. Such data subject can exercise their right to data erasure even if he or she is no longer a child[9].

To further strengthen the right to be forgotten in the online environment, Recital 66 of the GDPR provides that if a controller has made personal data public, then such controllers are under obligation to inform all the other controllers who are processing the said personal data to erase any links, copies or replications of those personal data[10].

When can data erasure request be made?

The grounds under which a data subject can raise a request for Data Erasure are listed under Article 17 of the GDPR. These grounds are as follows;

1. The personal data are no longer necessary in relation to the purposes for which they were collected or otherwise processed.
2. The data subject withdraws consent on which the processing is based according to the point and where there is no other legal ground for the processing. Article 7(3) of the GDPR provide that the data subject has the right to withdraw the consent given for data processing at any time.
3. The data subject objects to the processing under Article 21 of the GDPR (Right to Object).
4. Article 18(1)(b) of the GDPR (Right to Restriction of Processing) provides that a data subject obtains from the controller restriction of processing where the processing is unlawful and request for Data Erasure under such circumstances.
5. The personal data must be erased for compliance with a legal obligation in Union or Member State law to which the controller is subject.
6. The personal data have been collected concerning the offer of information society services referred to in Article 8(1) which provides for conditions applicable to child’s consent concerning information society services.

Who can raise a Data Erasure Request?

An individual whose personal data is being processed can either make a direct request for the data erasure or take help of a third party to raise such a request with the data controller. For example, the data subject can take the assistance of their lawyer to raise the Data Erasure Request with the controller.

When a request is received from a third party acting on behalf of a data subject, then the controller of the data shall make sure that the said third party has the authority to act on behalf of the concerned data subject, and it is the responsibility of the third party to provide necessary evidence to establish such authority.

How can a Data Subject make Data Erasure Request?

The GDPR is silent on the ‘form’ of the request. It does not provide how a request for data erasure can be raised. Therefore, a data subject can request Data Erasure either verbally or in writing. Also, the data subject is not bound to request the specific department of any organisation like Leal and Compliance Department or IT Department. The data subject can raise the request with any department, even with the department which might not be related to the handling of data like company’s in-house graphic designer.

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Therefore, it is important to train and educate all employees about GDPR as the request for data erasure can be made to any person of the organisation, in any form, and it could be made verbally. 

Can you refuse to abide by data Erasure Request?

Yes, the data erasure request under GDPR is not an absolute right. There are some limited grounds under the GDPR to refuse the compliance with data erasure request and the same are provided under Article 17(3) and Recital 65 of the GDPR. These both provisions provide that the further retention of the personal data shall be lawful if;

1. If it is for exercising the right to freedom of expression and information.
2. For compliance with a legal obligation.
3. For public interest in the area of public health 
4. For archiving purposes in the public interest, scientific or historical research purposes or statistical purposes.
5. For raising, establishing or defending a legal claim.

However, in case if you refuse to comply with the Data Erasure request then the same must be promptly communicated to the concerned data subject or to the third party acting on behalf of the data subject along with other information like; the ground for not taking the action, their right to raise a complaint with the ICO or other concerned supervisory authority, and seek a judicial remedy.

What is the Time Period to Comply with Data Erasure Request?

Article 17 of the GDPR provides that a controller is required to erase the personal data of the data subject without ‘undue delay’. However, it does not provide a specific time period or any guidance as to what constitutes undue delay. The reasonable time required to comply with data erasure request can vary from case to case as it would depend on various factors like;

1. How extensive and broad the request is,
2. How easy it is to identify the personal data or separate the data of specific data subject from the rest of the data,
3. What was the scope of the consent obtained from the data subject for the processing of the personal data?
4. How many sub-controller or processors are processing that personal data?
5. Limitation of available technology and tools to identify and delete the requested personal data

However, once a request is received, the controller should not delay in responding to such requests. It is important that controller acknowledge the receipt of such request, preferably within one month[11] and give the reasons where it intends to not comply with such request.

Penalty for Failure to Comply with data Erasure Request:

Article 83 of the GDPR provides guidance on the penalties imposed for breach of an obligation under the GDPR. As per Article 83(5) of the GDPR, a data controller can be fined up to 20 000 000 EUR, or in the case of an undertaking, up to 4 % of the total worldwide annual turnover of the preceding financial year, whichever is higher for breach of data subject’s right to Data Erasure!

The above administrative fine will be imposed after keeping various factors in consideration like nature, gravity and duration of the infringement, the intentional or negligent character of the infringement, action taken by the controller or processor to mitigate the damage, degree of cooperation with the supervising authority etc[12].

Steps to Follow on Receipt of a Data Erasure Request:

1. Establish the identity of the data subject. This is an important step to ensure that that the person requesting for the data erasure is the same person whose data deletion has been requested and whether your organisation is bound under the scope of GDPR to comply with such request. Make sure that you collect only the required minimum information for establishing the identity of the person. Do not start accumulating more unnecessary personal data in the process. If the request is received by a third party, then make sure that you request that third party the necessary proof to establish that it has the authority to act on behalf of the actual data subject for this purpose.
2. Request the concerned data subject to provide you with the reason behind their request and check whether those grounds fall within the scope of Article 17(1) of the GDPR or not. Request them to provide any information, document or attachment to support their request.
3. Request the concerned data subject to describe the information that they wish to be erased. Request the data subject to provide any relevant details that they think will help you to identify the information. Ask if they can provide the URL for each link they want to be removed.
4. Check whether you are required to comply with the Data Erasure request or not. See if you can take the defence available under Article 17(3) and Recital 65 of the GDPR. If you have a valid ground to refuse to comply with the data Erasure request, then communicate the same to the concerned data subject with valid, specific reasons without undue delay.
5. If you don’t have a valid ground to refuse the Data Erasure request then inform all the concerned internal team of your organisation to mark the data subject’s personal data which could be on servers’, backups, emails, hard drives, stored on cloud platforms etc. Assess the implication of deletion of such data on the system. Does the deletion of such impact on the working of a software? Is it possible to delete that data from all backups? Is it possible to locate an individual strand of data from the cluster? All such questions and situations need to be examined before executing the deletion of data.
6. Immediately communicate with all third parties, processors, and sub-processors and make sure that they also delete the personal data shared with them of the effective compliance of the data erasure request.
7. Make sure you have the personal data requested for erasure before processing the data erasure request. In case you don’t have the data, then inform the said data subject that the data requested for erasure was not collected.
8. Maintain an internal log along with the actions taken for each request. Make sure to update the log simultaneously to avoid any mistake.
9. Start deleting the data and keep the concerned data subject updated as you move forward.

Practical Tips:

1. It is important that the organization which falls under the scope of GDPR is fully compliant with its requirements. To do so, it shall regularly audit its privacy policy, HR Policy, should educate, train and raise awareness about GDPR among its employee, take help of data privacy lawyers in drafting internal and external policy etc.
2. Have a detailed written process in place to handle a data erasure request.
3. Compliance with the Data Erasure Request must be taken as a priority without any undue delay.
4. Have a clear understanding of when you are not required to comply with the Data Erasure Request, as it is not an absolute right of a data subject. In case of doubt, always take the help of an expert to guide you through.
5. You can ask for a reasonable fee or deny a request if you can justify the request was unsubstantiated. 
6. Have a “Data Erasure Request Form.” A sample format of the same is available at – https://gdpr.eu/right-to-erasure-request-form/
7. Consider warning the data subject that any attempt to mislead the organisation with the said request can result in prosecution.
8. Make sure that your organizations’ technical team can easily and quickly locate the personal data so that all the data erasure request can be handled efficiently.
9. Always have a clear understanding of all processors and controllers involved in the processing of the personal data. This will help in efficient communication with such controller and processors on the receipt of a Data Erasure Request. This will also avoid any chance of missing a processor or controller when complying with a request. It is important that a request is holistically complied with.
10. For the compliance and internal audit requirements, it is important that every organization maintain a log for all data erasure requests received and actions taken.
11. Make sure that you collect only required data for running of the business or for compliance of data erasure request. Do not start accumulating more data of a data subject while complying with a request like asking for unnecessary personal information to establish the identity of the request raiser.
12. Collect minimum data and ensure minimum diffusion of the same to avoid suffering while complying with data erasure requests.
13. Regularly audit the organizations contracts, websites, systems, servers, backups, databases, software etc. to know what kind of data is being collected and whether the systems used to allow you to easily identify and delete the individual record.
14.  To be fully compliant with GDPR, it is important to deal with only those processors or sub-processors which are themselves compliant with the GDPR requirement. Make sure that you have an understanding with all your processors and sub-processors to force them to comply with any Data Erasure Request.
15. The request for Data Erasure can be even made orally to any of controller’s employee, and therefore, all the concerned employees should be able to identify such requests and under their role in the process. There should also be a log for all request received orally.
16. Make sure that you don’t only know when you can refuse to comply with the Data Erasure Result, but you are also aware of circumstance under which you can extend the time limit to respond the request as provided under Article 12.3 of the GDPR.
17. Understand that Recital 65 of the GDPR puts specific emphasis on the right to Data Erasure if the request relates to personal data collected from a child.

For any query related to this article or GDPR, please get in touch with the authors at – sandeepbhalothia@outlook.com

Endnotes

[1] Available at – https://gdpr.eu/tag/gdpr/

[2] Article 1 of the GDPR

[3] Article 2 of the GDPR

[4] Article 3 of the GDPR

[5] Article 4(2) of the GDPR

[6] Article 4(1) of the GDPR

[7]  Guidelines 3/2018 on the territorial scope of the GDPR (Article 3), 23^rd November 2018. Available at – https://edpb.europa.eu/our-work-tools/public-consultations/2018/guidelines-32018-territorial-scope-gdpr-article-3_en

[8] Article 17 of the GDPR

[9] Recital 65 of the GDPR

[10] Recital 66 of the GDPR

[11] Article 12.3 and Recital 59 of the GDPR

[12] Article 83(2) of the GDPR

The post A practical guide on how to comply with data erasure request under GDPR appeared first on iPleaders.

My friend Siraj invited me to an event. What is it all about? He said that the Congress President of Haryana wants to meet young startups and influencers and understand what should be the vision of Congress. 

Sounds interesting, but I don’t think I can make it, I said. 

Siraj insisted, why don’t you come once, you will not regret!

So that’s how I found myself in a room with Dr. Ashok Tanwar on a Saturday evening, at DoubleTree by Hilton. Mostly because I like Siraj and find it hard to say no to him. 

At some level, I was curious too. What is Congress doing after the recent drubbing at general election? 

To be honest, elections come and go. Some or the other party wins. But it is hard to find politicians with a vision. I would say When I walked out a couple of hours later, I began to feel that that there may be still some politicians who have vision, who care about getting things done and are not necessarily bad!

That is something Ashok Tanwar emphasized again and again. Politicians are not bad. There may be a small percentage of wicked politicians, but our country has come this far because we had well-meaning, powerful politicians who could unite people and move forward. 

At the time of independence, we were in a horrible state. We were a country with one of the lowest per capita income in the world. Only 30 villages in the whole country had electricity. Famines and floods were ravaging the country. 

Pakistan’s GDP were growing much faster than ours at that time, and their per capita income was higher!

We have come a long way from those days. And the fact that our country never became a military or political dictatorship, that we had rule of law and a working democracy is a big deal. And that is why India is a global player, a force to be reckoned with.

We have a long way to go, but we need careful steps. The economic slowdown we are experiencing today is threatening many things. In our generation, we have not ever seen a structural slow down, we have almost always lived in an economy that has been growing, in fact, booming.

We need leaders who listens to people, support powerful ideas, back our entrepreneurs and social reformers, and give space to dissent. We need leaders who are educated and can understand the aspirations of the youth.

My interaction with Dr. Ashok Tanwar made me feel that he could be one of those leaders that we so badly need. 

Here are some of his ideas that I really liked:

1. Speak to people under the age of 20 to understand what they are thinking
2. Selfie with garbage – wherever you see garbage, take a selfie with it. Then post on twitter, facebook and instagram #selfiewithgarbage. You can also do this with other things, like potholes. Or anything else that is broken in civic infrastructure. Use selfies for holding the government accountable.
3. He admits his mistakes. He told social media influencers including kids on TikTok and Instagram that he used to think that social media is not a serious thing and it cannot influence politics. He understood his mistake after 2014 election, and started course correction. We need politicians who are humble and can talk about their mistakes openly.
4. He is in search of powerful ideas. He is interested in engaging with different types of people. He expressed an interest in meeting lawyers who live in or work in Gurgaon and understanding the future from their perspective. What do they see? What do they want. At this point I was totally sold.  
5. He wants to turn Gurgaon into the top startup city in the world. Of course it is a tall task, but he seems to be doing a lot of research and ground work. He is talking to and engaging with entrepreneurs on a weekly basis.
6. He has proposed to create an Indian Institute of Startups in Gurgaon.

The best thing is that these things are not one off initiative. It turned out that he has been engaging with entrepreneurs once a week through such events. Wow.

I really hope Dr. Ashok Tanwar succeeds. It is a pleasure to see a politician work so hard for entrepreneurs and engaging with the youth.

I told him about two problems that I really want to see addressed. One is rampant cyber crime. The government has pushed us into Digital India, which is great, but has completely failed to create a policing system or a security mechanism, and as a result we probably have nobody left in the country who either faced online fraud or at least faced an attempt for cyber fraud. This has to stop! Government must create a specialised force with adequate manpower to take on cyber criminals!

The other point I raised with him was about the reluctance of state governments to spend money on the lower judiciary! USA has 100 judges per 1 million population. Most developed countries have at least 50. We have about 10-12 posts of judges per million people, which also remain vacant half the time! Even many judges are forced to work with pathetic infrastructure! 

How can our country progress with such low investment in the judicial system? Why can’t State of Haryana lead the way by having 50 judges per 1 million of population?

Dr. Tanwar heard me. He did not say much apart from saying that we need a lot of discussion around this at the highest level. 

I promised Siraj by the time I left that I will write about Dr. Tanwar and his ideas. I had comfortably forgotten. Finally I penned this down today after some follow up from Siraj, but I am glad that I did. 

If you are a lawyer in Delhi NCR and would like to meet Dr. Tanwar, I am thinking of organizing a meeting with him. I am yet to meet any other politician who is doing this kind of outreach in this part of the country. Why don’t you meet and share your ideas about what we need to transform the legal system of Haryana?

As he is in the opposition now, he can raise these issues with the government. And if someday he comes to power, I hope he will remember our suggestions. We will certainly remind him! After all, we all hope to see our country move forward.

The post When I met an unusual politician appeared first on iPleaders.

This article is written by Soma-Mohanty of KIIT School of Law, Bhubaneswar. In this article she has explained about punishments, essentials of bigamy, the provision of bigamy in Hindu laws, the provision of polygamy in Muslim religion and about fraudulent marriages.

Introduction

• • The previous definition of bigamy consisted of these stated words “having a husband or wife”, but these words become vague once the first marriage ceases to be legal after separation.
  • Thus the definition of bigamy under Section 494 of IPC was suggested to be redrafted.
  • According to Section 5 of the Hindu Marriage Act,1995 the conditions necessary at the time of marriage is that both the partners getting married should not be having a living spouse.
  • But there is an exception provided by Section 494 of IPC, it states that either of the partners can contract a second marriage after the long absence of her partner for a period of seven years.

Essentials of Section 494 of IPC

• The first marriage should be according to the law i.e, it should be legal
• Second marriage should have taken place
• The first marriage should be existing
• The spouse must be alive
• Both marriages should be valid

Classification of offence

• It is a non-cognizable offence.
• It is a bailable offence 

Who can file a complaint

• Any person who has been deceived by their partner can file the complaint.
• In the case of a wife, her father, mother, brother, sister or any person related to her by blood, with the leave of the court can file a complaint on her behalf.
• In the case of the husband, only he is permitted to file the complaint.

Compoundable offence

• Offences under bigamy are compoundable only if there is a consent of the wife and if the competent court permits.

Bigamist meaning 

 When a person is already married and the marriage is still valid, then contracts another marriage with another person is called bigamy and the person committing this is called bigamist.

Example: “A” was married to “B” who is his wife and due to some fights she left her in-laws place and went to her parental home. Then after some days, her husband married another woman. In this case, “A” is to be called as a bigamist.

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Bigamy vs polygamy 

Muslim polygamy

Origin 

• After the Battle of Uhud, it was seen that may Muslims died fighting for the Prophet as well as Islam.
• Many women were left without a husband and their children were left behind as orphans.

Thus Allah was concerned about the suffering and thus polygamy was introduced as follows.

• According to Muslim Marriage Law, a husband can have up to four wives only.
• Muslim polygamy is not abolished in India.
• According to Muslim Personal Law, a Muslim male is permitted to marry again in the presence of the validity of his previous marriage.
• The validity of polygamy comes from Chapter 4 of the Quran.
• In most of the places, Muslim polygamy is practised without the wife’s consent.
• Thus, Pakistan in 1961 passed the Muslim Family Laws Ordinance in which a husband needs to seek permission from the  Chairman of the Union Council, who is an elected local government body.
• This rule prohibits the man to get married secretly.
• Muslim Law permits a man for polygamy but it restricts the man to force his first wife to stay with him. [3]

Hindu polygamy in Modern India

• The Hindu Marriage Act, 1995 prohibits polygamy. According to this Act marriage arising out of polygamy is not void in nature any person not abiding by the law would be punished under Sections 494 and 495 of IPC.
• Section 5 of The Hindu Marriage Act, 1995 states that to consider a marriage to be valid the main essential should be that both of the parties have no surviving spouse.
• In the case of Sarla Mudgal v. Union Of India, it was held that the marriage had taken place according to The Hindu Marriage Act, 1995 and it would only dissolve with the provisions of this Act. The man converting himself to other religions won’t provide him immune to escape from the punishment.

Christian polygamy 

• According to the Old, Testament polygamy is explicitly forbidden.
• Minister of Religion of a Church and the Marriage Registrar are the authorities who administer Christian marriage.
• According to the provision, there are two criteria for marriage

• The person should be marrying for the first time.
• The person getting married should not be having a living spouse.

• But there is no scope for existing marriage.
• And the person who takes the false oath and hides the fact of his previous marriage and a living spouse would be punished under Section 193 of IPC.

Fraudulent marriages

According to Section 493 of IPC

• When a man tactfully traps a woman to believe that they are married lawfully and with that believe she had a sexual relationship with him, despite the fact that the marriage is invalid.
• In this case, the person would be punished with imprisonment for a term which may years.
• He would also be liable to pay the fine; or
• Both imprisonment as well as fine.

According to Section 496 of IPC

• When a person gets married again, with the sufficient knowledge that it is not valid according to the law and hides the fact.
• Then, in this case, he would be punished with imprisonment for a term which may exceed to seven years.
• He can also be liable to pay the fine.

Essential ingredients to constitute the offence

Fraudulent intention

• In both of the sections it is necessary to show that the act done is fraudulent in nature.
• It is necessary to show that the woman is completely unaware of the voidness of the marriage but the man is clearly aware of the situation.
• A marriage is considered to be valid when both people are going through all the necessary rituals of marriage under bonafide impression, though the marriage in not valid in real life.
• This situation arises because the man is not aware of the facts and there was no fraudulent intention at the time of marriage.
• From the above facts stated it is clear that means rea constitute one of the strong elements under this section.

Arising false belief

• The mere act of a man to cheat the women won’t be sufficient enough to constitute the offence.
• It has to be shown that with the false interpretation the man married the women and under this false impression that they are legally married, they had sexual intercourse.
• But if the women have closure to all the facts and still allows him to have sexual intercourse then it won’t be valid.
• When the dissolution of the previous marriage of a man is running in the court and during the period he gets married again then it is not valid. But if he gets married informing the girl and her parents about the above-stated fact, then it won’t be considered as a fraudulent action.

Conversion for the purpose of polygamy

• Taking references of different judgments it is quite evident that the conversion of religion for the purpose of second marriage in existence of previous marriage won’t be an aid to the punishment under Section 494 of IPC. 
• In the case of Sarla Mudgal v. Union Of India [4] it was observed that her husband changed his religion to Islamic religion to get married to another woman. But it was seen that there was no dissolution of the first marriage. 
• But the Supreme Court, in this case, decided that the changing of religion for the purpose of getting married to another person during the existence of the first marriage would amount to an offence under Section 494 of IPC.

Why is bigamy illegal

• When bigamy is performed in the existence of the second marriage and the facts are not disclosed before the partners, then it is considered to be illegal.
• When a person hides the fact of his previous marriage,e and gets married again, then it constitutes fraudulent action. Thus it is illegal.
• In the case of existence of first marriage which is valid, when a person goes through another marriage then the other partner is deprived of rights that the person was entitled by law during the marriage. And according to law, no person would be deprived of rights.

Bigamy IPC

Section 494

• This Section states that any person who is already having a husband or wife and marries another person in existence of previous spouse, then the person shall be punished with imprisonment which shall extend to seven years and would be liable to fine.
• But a person can not be convicted under this section when the marriage has already been declared void by the court.
• When one of the spouses is missing for a period of seven years and there is no information about his existence then the other partner can contract another marriage. But the spouse needs to open the facts before the person whom they are getting married.

Who can file bigamy charges

• The person who has been cheated by their spouse in the contract of second marriage can only file a case against the person under this Section.
• The first spouse does not have the right to file a complaint under this section.

In the case of women

• She can herself file the complaint.
• In the case of a wife, her father, mother, brother, sister or any person related to her by blood with the leave of the court can file a complaint on her behalf.

In the case of a husband

• No person on behalf of the husband can file the case i.e, he has to file the complaint himself
• But in the case of  the person in Armed Forces, who is not able to take leave to file the complaint exception is provided

Rights of the second wife

• There is no provision for the right of a second wife in the case of a second marriage. She can not claim the property right of her husband.
• But a second wife can claim the rights if the marriage is valid under the exceptions provided in Section 494 of IPC.
• Where the second marriage has taken place according to the Hindu Marriage Act but is invalid according to the provisions of this act, then the second wife has no right to claim.

Child from the second marriage 

• When the second marriage is declared valid, the child born would have equal rights as per the child from the first marriage have.
• But if the second marriage is not valid according to the provisions of the Hindu Marriage Act, then also the child born out of the second marriage would inherit the same rights as the child from first marriage would.
• Section 16 of the Hindu Marriage Act, provides provision where the second child can inherit the rights.

Bigamy in Goa

• Any Muslim man who has done his marriage registration under Goa is not permitted to perform polygamy.
• But Goa allows polygamy as well as bigamy in certain cases such as
• When a wife of a previous marriage is not able to give birth to a child and she reaches the age of 25 years.
• When the wife of a previous marriage is not able to give birth to a male child even after the completion of 30 years of age.
• When the previous marriage is dissolved according to the provisions of the Goa Civil Code

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Reference 

[1] MANU/SC/0068/1965

[2] MANU/GJ/1225/2015

[3] Itwari vs. Asghari and Ors.  MANU/UP/0196/1960

[4] MANU/SC/0290/1995

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This article is written by Soma-mohanty of KIIT School of Law, Bhubaneswar. In this article, she has mentioned about the eligibility to hold citizenship of India.

History

When there was a declaration of independence, the country was divided into two parts one was India and the other was Pakistan. The people were provided independence to join any country they want to get the nationality of. Thus the situation demanded strict provisions to frame the nationality policy of India before the commencement of the constitution.

Constitutional Provisions governing citizenship

After the partition it was seen that people were migrating from one border to another, thus it was difficult to frame the provision for citizenship in India.

Citizenship act and its amendment 

Citizenship Act of 1955

Amendments 

Click Here

Modes of acquiring of citizenship 

Citizenship By Birth

According to Section 3 of The Citizenship Act, if a

• When a person is born on or after 26th January 1950 but before 1st July 1987, then he would be entitled to get citizenship by birth.
• When a person’s parents are a citizen of India or either of the parents is a citizen of India then the person would be entitled to get citizenship by birth.
• If one parent is a citizen of India and the other is not, then it is necessary to establish the fact that the other parent is not an illegal migrant at the time of the birth of the child.

Citizenship By Descent

According to Section 4 of The Citizenship Act,

• A person born outside India on or after January 26, 1950, is a citizen of India by descent if his/her father was a citizen of India by birth.
• A person born outside India on or after December 10, 1992, but before December 3, 2004, if either of his/her parents was a citizen of India by birth. 
• If a person born outside India or after December 3, 2004, has to acquire citizenship, his/her parents have to declare that the minor does not hold a passport of another country and his/her birth is registered at an Indian consulate within one year of birth.
• Provided that a minor under this section is if a citizen of another country must renounce that within six months.

Citizenship By Registration

According to Section 5 of The Citizenship Act,

• A person of Indian origin who has been a resident of India for 7 years before applying for registration.
• A person of Indian origin who is a resident of any country outside undivided India.
• A person who is married to an Indian citizen and is ordinarily resident for 7 years before applying for registration.
• Minor children of persons who are citizens of India.

Citizenship By Naturalisation

According to Section 6 of The Citizenship Act,

• When an application for grant of a certificate of naturalisation is made by a person who is fully aged or has attained the capacity and the Central Government is satisfied that all the conditions are fulfilled, then the person is granted the certificate of naturalisation.
• When a person is granted the certificate of citizenship by naturalisation, he has to take oath in the manner specified in the Third Schedule.

Citizenship By Incorporation of Territory

According to Section 7 of The Citizenship Act,

• When any territory is added to the constitution of India, then the people of those territories would be considered as the citizen of India.
• These people would be granted citizenship by the Official Gazetteonce the Central Government notifies them.
• They would be considered as the citizen from the date specified in the order.

Overseas citizenship of India

• A foreign citizen of Indian origin is given the permission of immigration to live and work in the Republic of India, this is known as Overseas Citizenship of India.
• It was introduced for the purpose of granting dual citizenship.
• It was brought into light from The Citizenship (Amendment) Act, 2005.
• People with Overseas Citizenship of India are permitted from certain rights

1. No right to vote.
2. No right to hold constitutional offices
3. No right to buy agricultural properties

Requirements to apply and use Overseas Citizenship of India document

1. Citizenship
2. Should be a holder of a passport of another country

History

Previously citizens of India were not permitted to hold dual citizenship and this provision was laid down by the Constitution of India. Thus, a person was not permitted to hold any other countries passport with an Indian passport.

• This provision raises many problems, thus High-Level Committee on Indian Diaspora recommended the Government of India to provide Overseas Citizenship of India as specified in the Section 7A of the Citizenship Act, 1995.
• Earlier travelling required the travellers of Overseas Citizenship of India card to carry a passport and it should have a lifetime visa.  But this provision was rejected and it is not mandatory to carry.

Eligibility

A person is eligible to get registered as Overseas Citizenship of India by the Government of India under certain conditions

• Should be a citizen of India as per dated on 26th of January 1950 or after the date stated.
• The person’s grandfather or grandparents should be a citizen of India.
• When the person’s grandfather or grandparents are a citizen of India and the person is a minor child.
• When a person’s both parents are a citizen of India or either of the parents is a citizen of India and the person is the minor child.
• When the person’s spouse is of foreign origin of a citizen of India or holder of Overseas Citizen of India and the marriage has been registered for more than two years.
• Exception: if the person’s either parents or grandparents or great grandparents had or having the citizenship of Pakistan or Bangladesh, is eligible for registration under Overseas Citizen of India

Application 

Application for Overseas Citizenship of India is submitted online.

• A person while submitting the application for Overseas Citizenship of India has to attach a photograph of him/ her in the application.
• It is mandatory for the person to produce all the documents required for verification, to prove the eligibility criteria.
• The person is required to submit the application fee.

• Application submitted outside of India is charged with the amount of US$275
• The application submitted inside India is charged with the amount of Rs. 15,000

• The person is required to produce the proof of citizenship he is currently possessing and in addition, he needs to produce a photocopy of the passport. And the passport must be having the validity of six months at least
• If the application made by the person is within the Indian jurisdiction, then it is mandatory for him to submit a photocopy of the Indian visa.
• The person is required to produce the proof that either of his/her parents or grandparents or great grandparents are the citizens of India.
• The person needs to produce a photocopy of the Indian visa, photocopy of the Domicile Certificate, photocopy of the Nativity Certificate of either of his/her parents or grandparents or great grandparents.
• If the above-stated documents produced are checked and the basis of Indian origin is proved then the person is required to show that the relationship stated above is a lawful relationship.
• The documents required to prove the relationship can be a birth certificate in which both the parent’s identity is mentioned.

Renewal

• Till the completion of 20years of age, a new passport is to be issued.
• After attaining the age of 50years it is required to re-issue the Overseas Citizen of India registration certificate as well as the visa.
• For the person’s between the age of 21 to 50, It is not mandatory to re-issue the document of Overseas Citizen of India to get the new passport.

 Privileges

• The Overseas Citizen of India cardholders are given multiple-entry, multi-purpose visa forever.
• their period of stay in India is not restricted.
• Uniformity is provided to the non-resident Indians in the matter of financial, economic, and educational fields.
• Uniformity is maintained between the non-resident Indians and resident Indians in the domestic Airfares.
• The non-resident Indians are given the right to employment in private sectors.
• Overseas Citizen of India cardholders are exempted from producing employment visa and for registration with Overseas Citizen of India Foreigners Regional Registration Office for the job.
• OCI holders are exempted to apply for the Inner Line Permit or Protected Area Permit. They are allowed to travel around any part of India.

Disadvantages of OCI Card

• The OCI cardholders do not have the right to vote.
• The OCI cardholders are exempted from the right to hold the office of Prime Minister, President, Vice-President, Judge of the Supreme Court and the High Court, member of Lok Sabha, Rajya Sabha, Legislative Assembly, or Council.
• The OCI cardholders are exempted from the right of employment in government sectors.
• The OCI cardholders have no right of acquisition of agricultural or plantation properties.

Cancellation of OCI card 

The existing registration of OCI can be cancelled through the provisions of Section 7D of the Citizenship Act,1995. The Government of India has the right to cancel the OCI if it has been obtained by false representation or concealment of facts.

The followings are the conditions in which OCI is cancelled according to  Section 7D of the Citizenship Act,1995

• If the registration was based on the facts of false representation, concealment of facts and the OCI was obtained.
• If the OCI cardholder’s action is not according to the law established by the Constitution of India.
• During any war relating to India, if it is found that any OCI cardholder was involved with the enemies and had unlawful communication or any trade or business that helped the enemy during the course of the war.
•  If an OCI cardholder is sentenced with imprisonment for a term not less than two years.

Renunciation of OCI 

When the person has registered for OCI document, but they find it necessary to abstain from it and withdrawal the application, then renunciation of OCI is done. The provisions followed in the procedure of renunciation of OCI are laid down in Section 7C of the Citizenship Act.

According to Section 7C of the Citizenship Act

• When an overseas citizen of India who has attained the age of capacity decides to renounce his overseas citizenship of India, then he can do so on registration before the Central Government. And after the registration, the person would cease to be a citizen of India.
• After the renounce of the person, the minor child of the person would cease to be a citizen of India

Person of Indian origin

When a person of Indian origin has been entitled to the passport of other countries, they hold Person of Indian Origin Card. But the passport should not be from countries like Afghanistan, Bangladesh, Bhutan, China, Iran, Nepal, Pakistan, and Sri Lanka.

The Person of Indian Origin Card has ceased to work from 9th January 2015 and has been merged with the OCI  card provision. Thus the holders of The Person of Indian Origin Card are treated as OCI cardholders.

Conditions 

Certain conditions are required to be fulfilled to issue the Person of Indian Origin Card are as follows.

• If the person has never been an Indian passport holder.
• If the person’s parents, grandparents or great grandparents were residing permanently in India and they never had the citizenship of countries like Pakistan and Bangladesh.
• If the person’s spouse is a citizen of India or PIO cardholder.

Benefits to PIO card holder 

• A person with a PIO card is allowed to enter into India, without producing a visa.
• A person with a PIO card is allowed to stay in India for a period of six months without registration.
• Uniformity is provided to the non-resident Indians in the matter of financial, economic, and educational fields.
• They have the right to acquisition, transfer, and disposal of immovable properties in India.
• Child of the person with a PIO card has the right to education in any government or private educational sectors.

Dual citizenship

Availing dual citizenship of India and another country requires certain strict provisions. Earlier there was no provision of dual citizenship in India. These certain provisions are required to be fulfilled to obtain dual citizenship in India

• When a person from another country is working in India and their child is born in India, then dual citizenship is granted to the child until the period of employment in India.
•  A minor of Indian origin has the right to hold dual citizenship of India as well as another country. The minor is provided with dual citizenship so that the minor child chooses the preference of nationality before six months of attaining the age of eighteen.

Renunciation of Indian citizenship 

Under Section 8 of the Citizenship Act,1995 the provisions for renunciation of citizenship has been laid down

• When both the parents are no more citizen of India, then their minor child is given the right to choose the nationality of his/her preference within the given period of time, after he/she attains the age of eighteen
• When a citizen of India has attained the age of maturity or capacity and decides to renunciate the citizenship of India then he can submit his renunciation by registering under the prescribed authority.
• After submission to the prescribed authority, the person ceases to be a citizen of India.
• But if the person submits the request for renunciation of citizenship during the period of war India is engaged in then the request would be kept pending until directed by the Central Government of India.

Termination of Indian citizenship

According to Section 9 in the Citizenship Act,1995 the following provisions are provided for the termination of Citizenship

• When a citizen of India voluntarily acquires the citizenship of another country, then he ceases to be a citizen of India.
• But a citizen of India who voluntarily acquires the citizenship of some other country during the period of war, then his citizenship won’t be ceased till the Central Government directs.

Case law

In the case of Bhagwati Prasad Dixit v. Rajeev Gandhi[6],  it was seen that the question raised was against the validity of the election. According to the appellant, the respondent was to be disqualified from being a candidate in the election as he has ceased to be a citizen of India. The respondent had challenged the verdict of the High Court.

It was held that the High Court has correctly dismissed the plea because it the arguments that were put forward did not disclose any cause of action. Moreover, the question of acquisition of Foreign citizenship under Section 9 of the Citizenship Act, is to be answered by the Central Government and the High Court does not have the jurisdiction.

To know more about the topic on citizenship laws, Click Here.

Reference

[1] AIR 1996 SC 1436

[2] AIR 1966 SC 1614

[3] AIR 1955 SC 282

[4] AIR 1971 SC 1382

[5] AIR 1954 SC 229

[6] 1986 AIR 1534

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This article has been written by Richa Singh of Faculty of Law, Aligarh Muslim University. She has covered all the legal aspects, the procedure for filing a complaint and the consequences of medical negligence.

Introduction 

Medical negligence has become one of the serious issues in the country in recent years. Even the medical profession, which is known to be one of the noblest professions, is not immune to negligence which often results in the death of the patient or complete/partial impairment or any other misery which has adverse effects on the patient’s health. There are instances where doctors who are under-educated leads to the proceedings in the court of law due to the magnitude of negligence or deliberate conduct shown by the doctors. 

Around 52 lakh medical injuries are recorded every year in India out of which 98,000 people in the country lose their lives in a year because of medical negligence. It is really a serious concern for the entire nation that 10 people fall victim to medical negligence every minute and more than 11 people die every hour in the country due to this medical error. (Source: https://www.indiamedicaltimes.com/2016/05/25/98000-people-lose-their-lives-because-of-medical-negligence/)

It is no surprise that even the slightest mistake made by a doctor can have life-altering effects on the patients. So, it is the duty of a doctor to take proper care to avoid such happenings.

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Medical Negligence

Commission of mistakes or Negligence within the health profession could result in minor injuries or even lead to some serious injuries and these mistakes could even lead to death. Since no one is perfect in this world, a person who is skilled and has knowledge of a particular subject can also commit mistakes. To err is human but to replicate the same mistake due to one’s carelessness is negligence. 

The fundamental reason behind medical negligence is that the carelessness of the doctors or medical professionals are often ascertained in various cases where reasonable care is not taken during the diagnosis, during operations, while injecting anesthesia, etc.

Medical negligence definition

We can define ‘Medical negligence’ as the improper or unskilled treatment of a patient by a medical practitioner. This includes negligence in taking care from a nurse, physician, surgeon, pharmacist, or any other medical practitioner. Medical negligence leads to ‘Medical malpractices’ where the victims suffer some sort of injury from the treatment given by a doctor or any other medical practitioner or health care professional.

Examples of medical negligence

Some examples of medical negligence are as follows: 

• improper administration of medicines.
• performing the wrong or inappropriate type of surgery.
• not giving proper medical advice.
• leaving any foreign object in the body of the patient such as a sponge or bandage, etc. after the surgery.

What does not come under medical negligence

A doctor is not liable in all cases where a patient has suffered an injury. He might have a valid defense that he has not breached the duty of care. 

The error of judgment can be of two types: 

• An error of judgment – In such cases, it has been recognized that it doesn’t amount to a breach of duty. Merely because a doctor’s decision turned out to be wrong, we cannot make him liable for medical negligence.
• The error of judgment due to negligence – If all the factors were considered before coming to a decision then it would be called an error of judgment due to negligence. This amounts to a breach of duty. 

Types of medical negligence

Medical negligence can occur in different ways. Generally, it occurs when a medical professional deviates from the standard of care that is required. 

So, we can say that any kind of deviation from the accepted standards of medication and care is considered to be medical negligence and if it causes injury to a patient then the doctor who operated on him, other staff and/or hospital may be held liable for this.

Some of the common categories of medical negligence are as follows:

• Wrong diagnosis – When someone goes to a hospital, clinic or medical room, etc. the first step after admittance is the diagnosis. Diagnosing symptoms correctly is critical and important to provide medical care to any patient. However, if a patient is not treated properly due to any mistake in diagnosis, the doctor can be made liable for any further injury or damages caused as a result of the wrong diagnosis.
• Delay in diagnosis – A delayed diagnosis is treated as medical negligence if another doctor would have reasonably diagnosed the same condition in a timely fashion. A delay in diagnosis can cause undue injury to the patient if the illness or injury is left to worsen with time rather than being treated. Obviously, any delay in the identification and treatment of an injury can reduce the chance of recovery for the patient.
• Error in surgery – Surgical operations require an enormous level of skill and it should be done with due care and caution because even the slightest mistakes can have profound effects on the patient. The wrong-site surgery, lacerations of any internal organ, severe blood loss, or a foreign object being left in the body of the patients, all this comes under Surgical error.
• Unnecessary surgery – Unnecessary surgery is usually associated with the misdiagnosis of patient symptoms or a medical decision without proper consideration of other options or risks. Alternatively, sometimes surgery is chosen over conventional treatments for their expediency and ease compared to other alternatives.
• Errors in the administration of anesthesia – Anesthesia is a risky part of any major medical operation and requires a specialist (anesthesiologist) to administer and monitor its effect on the patient. Prior to any medical procedure requiring anesthesia, the anesthesiologist has to review the patient’s condition, history, medications, etc.  to determine the most suitable of all the medicine to use. Anesthesia malpractice can happen even during the pre-operation medical review or during the procedure itself.
• Childbirth and labor malpractice – Childbirth is a difficult event for a woman and it becomes worse if not handled properly by the doctors and nurses. There are many instances of medical negligence during childbirth including the mishandling of a difficult birth, complications with induced labor, misdiagnosis of a newborn medical condition, etc.
• Long-Term negligent treatment – Medical negligence can also occur in subtle ways over the course of a long treatment period. Usually, the negligence can take the shape of a failure to follow up with treatment, or a doctor’s failure to monitor the effects of the treatment properly.

Essentials of medical negligence

The term ‘Medical negligence’ consists of two words – medical and negligence. Negligence is solely the failure to exercise reasonable care. Medical negligence is no different. It is only that, in case of medical negligence, the doctor is the defendant.

In an action for negligence, the following essentials are required:

• The defendant owed a duty of care to the plaintiff.
• The defendant made a breach of that duty.
• The plaintiff suffered damage as a consequence of that breach.

A doctor owes certain duties of care to his patients, they are as follows:

• It is his duty to decide whether he wants to undertake the case or not,
• It is his duty to decide what treatment to give and;
• It is his duty to decide the administration of treatment.

If a doctor fails to perform the aforesaid duties it results in breach of duty and gives a right of action to the patient. A breach of duty is committed by a doctor when he does not perform the degree of care like a reasonable doctor.

In Kusum Sharma v. Batra Hospital[1], it was held by the Supreme Court that a doctor often adopts a procedure which involves a higher element of risk, but in doing so he honestly believes that it will provide greater chances of success for the patient. If a doctor has taken a higher risk to redeem the patient out of his/her suffering and it did not yield the desired result, this may not amount to medical negligence.

In Jasbir Kaur v. State of Punjab[2], a newly born child was found missing from the bed in a hospital. The child was found bleeding and near the wash-basin of the bathroom. The hospital authorities argued that the child had been taken away by a cat which caused the damage to him. The court held that the hospital authorities were negligent and had not taken due care and precaution. Thus, awarded the compensation amounting to Rs. 1 lakh.

Standard of care 

A standard of care specifies the appropriate treatment and medication procedure as per the requirements that should be taken into account by a doctor while providing the treatment to his patients. The care should not be of the highest degree nor the lowest.

Here, the degree means the level of care an ordinary health care professional, with the same training and experience, would render in similar circumstances in the same community. This is the critical question in medical malpractice cases and if the answer is “no,” and you suffered injury as a result of the poor treatment, you may file a suit for medical malpractice.

In the case of Dr. Laxman Balkrishna Joshi Vs. Dr. Trimbak Bapu Godbole and Anr.[3], the Supreme Court held that a doctor has certain aforesaid duties and a breach of any of those duties can make him liable for medical negligence. A doctor is required to exercise a reasonable degree of care that is set for this profession.

Duty of care

A duty of care in cases of medical negligence is an obligation on one party (doctor) to take care to prevent harm being suffered by another (patient). Generally, doctors owe an obligation to take care of their patients. 

There are certain requirements to establish a duty of care. They are as follows:

• A physician is not asked to deal with everyone but when he is taking a case then he should deal with it with proper care and in accordance with the set standard of care. A doctor or clinical practitioner prescribing a patient to seek a provider of an extra health practitioner is acceptable. However, when there is an emergency, a medical professional ought to deal with the patient. No health care professional shall immediately resist dealing with the case unless it is out of the area of his expertise.
• The physician should never stretch nor reduce the gravity of a patient’s condition. He will have to make sure that he gives proper treatment to the patient considering the type of ailment the person is suffering from.
• A doctor must have patience as he cannot do without it. The confidentiality of the details of the patient should be kept secret. However, in a few cases, he can reveal the details if he feels that it is his duty to do so. For instance, if there is a disease that is spreading and is dangerous for people then he can make it public and let others know about it.
• A physician or a doctor is free to choose whom he wants to treat but in case of emergency he cannot deny dealing with the patient. But after undertaking a case, the health care professional cannot withdraw from the case without informing the family members of the sufferer. A temporarily or fully registered medical practitioner should not voluntarily commit any act of negligence that deprives his patients of the standard of care.
• When a physician who deals with a particular problem and has expertise in that field is unavailable and another physician is sent for the treatment, the acting doctor is entitled to get his charges but should ensure the patient’s approval or permission to resign on the coming of the physician engaged.

Burden of proof

The burden of proof of negligence generally lies with the complainant. The law requires a higher standard of evidence to support an allegation of negligence against any doctor. In cases of medical negligence, the patient must establish a claim against the doctor in order to succeed.

In Calcutta Medical Research Institute vs Bimalesh Chatterjee[4], it was held that the onus of proving proofs against negligence and deficiency in service was clearly on the complainant. 

Proof of negligence

It has been held in different judgments to charge a doctor for medical negligence the burden of proof lies upon the person who alleges negligence against him (patient). It is a known fact that things can go wrong even with the specialists. And the guilt or negligence can only be established if his acts fall below the standard of care that he ought to take.

Steps to proving a medical malpractice claim

• The first thing you need to prove is that there exists a doctor-patient relationship. This is the easiest step that one can take in order to prove medical negligence.
• The next thing you should do is prove that your doctor did not meet the set standards required as an obligation for this profession.
• Then prove that you have suffered an injury as a result of that medical negligence.
• The proof of damages must be presented and this includes all the harm you have suffered due to the negligent behavior of the doctor.
• All the above-mentioned elements should be proved in order to succeed in a claim against medical negligence.

When does the liability arise

Generally, the liability of a doctor arises when the patient suffers injury due to the substandard conduct of the doctor, which was far below the reasonable standard of care. Hence, the patient should establish that there exists a duty which the doctor needs to follow and then the next step is to prove breach of duty.

Normally the liability arises only when the complainant is ready to discharge the burden on him of proving negligence. However, in some cases the principle of “res ipsa loquitor” which implies that the thing speaks for itself, can come into action. Mostly the doctor is liable only for his own acts but there are some cases in which a doctor can also be made vicariously liable for the acts of another. For example, when a junior doctor is working for the senior doctor commits an error then it becomes the responsibility of the senior making him vicariously liable.

Res ipsa loquitur

The Latin maxim “res ipsa loquitur” means that “the thing speaks for itself.” 

In terms of medical malpractice, it refers to the cases where the doctor’s treatment was far below the set standards of care under that negligence is assumed.

The doctrine assumes the following:

• Nature of injury gives the clue that without negligence it could not have happened.  
• There was no involvement of the patient himself in the injury in any way.  
• The injury happened under the circumstances which were under the supervision and control of the doctor.

It means that by applying the principle the judge has accepted that the negligence has occurred. After this, the doctor will have to rebut this thing and if he fails to do so then the patient would be considered as successful in the case of medical negligence.

How to prove a res ipsa loquitur case?

The injured party must prove that the physician breached the duty of care by failing to adhere to the set standards of care a doctor must follow. The breach must be demonstrated by an expert’s attestation. In res ipsa negligence cases expert declaration about the standard of care is not really required. 

In order to prove a res ipsa case, the following must be done: 

• It is well known to everyone that if a case seems like it could never happen without negligence on the part of the doctor then this directly proves that it falls under the category of res ipsa cases.
• The equipment or manner of treatment that caused the damage was under the doctor’s control at all times.
• The injury was the one which the injured person couldn’t assume voluntarily.

Some Examples of Res Ipsa Medical Cases

Some common scenarios of res ipsa cases are given below: 

• Leaving some object inside the body of the patient after surgery.
• If a wrong patient gets operated.
• If the wrong part of the patient gets operated.

Filing a complaint

Being in a noble profession the practitioner must take a reasonable degree of skill and care and must exercise a reasonable degree of care. The law requires neither the very highest nor a very low degree of care and skill and is different for different cases. If he fails to do so then a complaint can be filed against him.

Medical negligence complaint

A complaint is an allegation made by a complainant. It is in written form. It consists of the statements and some important facts to establish a case that a consumer has suffered loss or damage due to deficiency of any service. 

What is the cost involved in filing a complaint?

A minimal fee is required for filing a complaint before the district consumer redressal forum for medical negligence cases.

Adjudication of liability

When a complaint against medical negligence is filed, the forum sends a notice to the opposite party to submit its version of the case within 30 days after admitting the complaint. After doing proper scrutiny the forum will ask either for filing an affidavit or for producing evidence in the form of judicial precedents, expert opinion, etc.

Steps to follow under Medical Negligence Case

• A complaint must be filed in the State Medical Council – If you are a victim of medical negligence then the first necessary step is to file a complaint against the doctor in the State Medical Council. The complaint can be filed in the state consumer court and a criminal suit can also be brought against the doctor or hospital authorities. 

• • If the main motive behind filing a complaint is to seek monetary compensation then the complaint must be filed in the consumer court in order to finish the case as soon as possible.
  • The consumer courts can suspend the license of the doctor if it is the case of rarest of the rare medical negligence.
• Go to a Patient-Advocate – The other step that proves very useful in medical negligence cases is to go to a patient-lawyer.

• • If there is any breach of duty from the doctor’s side then a patient-advocate can clear this picture in the mind of the patient and ask them to take necessary steps to resolve the matter.
  • The Patient-Advocate can also help the patient in cases if there should be some compensation due to medical negligence.

Step by step procedure 

The following steps must be taken:

• A complaint must be filed with the local police and the State Medical Council.
• If it is filed only with the police, then the police can send the report to the State Medical Council.
• If the report seems appropriate to the Council then it will send it to various other courts under the relevant sections.
• If the case is criminal in nature then it will be against the state versus the hospital or doctor.
• If the council finds that the case is serious and pose a danger to the life of the patient then it can also suspend the doctor’s license for a relevant period of time.
• If the council finds him guilty, the facts and circumstances of the case will decide the punishment to be given to the doctor.
• If the patient is still not satisfied with the judgment then he/she can make an appeal to the Medical Council of India.
• The consumer courts can help the patient in seeking monetary compensation. It should be noted that the consumer courts can only provide you with the compensation it cannot punish the guilty.
• If the complainant is still not satisfied then he can approach the National Consumer Dispute Redressal Commission.

Collection of evidence related to Medical Negligence

The collection of evidence should be like this:

• Collect all the medical records.
• As per the guidelines of the Medical Council of India, the patient should get all the medical records within 72 hours from the date and time of the appointment.

Challenges faced by the victims of Medical Negligence

These are some of the challenges that are faced by a complainant in medical negligence cases:

• If is a time-taking process to decide medical negligence cases. So, sometimes it leads to the de-motivation of the complainant.
• Sometimes, due to the reputation of the hospital, the doctor has more chances of winning the case.
• There are some cases in which the doctor already knows that they have been negligent so they remove all the necessary evidence which creates a problem for the complainant. 
• You need to know about your insurance policy limits because sometimes the insurance company itself rejects the case.

Necessary test to determine Medical Negligence

The name of the test is the Custom Test. 

• In this test, it must be proved that the hospital or any of its staff weren’t negligent in performing its duties. 
• The next thing which should be proved is the method adopted by the concerned doctor was not ethical.
• In most of the cases, the burden of proof lies upon the Complainant but sometimes it shifts to the doctor if there is no proper management done on his part. 

Medical negligence complaint in criminal court

Hospitals, in many cases, are charged for negligence if HIV, HBsAg, etc. gets transmitted due to it. So, if anyone develops such disease during his course of treatment under the supervision of his doctor and the same is proved that it has occurred on account of careless and negligent behaviour on the part of the hospital then the hospital will be held liable for failing to consider the reasonable standards given to them in the form of duty to care and standard of care.

However, if the elements like the motive or intention, the magnitude of the offense and the character of the accused are established then it makes him liable under the criminal law.  

Provisions 

• According to Section 304-A of the Indian Penal Code, 1860,  if a person commits a rash or negligent act which amounts to culpable homicide then the person will be punished with imprisonment for a term which may extend to two years or with fine or both.
• According to Section 337 of the Indian Penal Code, 1860, if a person commits a rash or negligent act due to which human life or personal safety of others gets threatened. The person will be punished with imprisonment for a term which may extend to six months or with fine which may extend to five hundred rupees or both.
• According to Section 338 of the Indian Penal Code, 1860, if a person commits a rash or negligent act due to which human life or personal safety of others gets threatened. The person will be punished with imprisonment for a term which may extend to two years or with fine which may extend to one thousand rupees or both.

Defences 

• Section 80 of the Indian Penal Code, 1860, says that anything which happens as a result of an accident or misfortune and without any criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution is not an offense.
• Section 81 of the Indian Penal Code, 1860, states that if anything is done merely by the reason that it is likely to cause harm but if the same is done without any intention to cause harm and in good faith in order to avoid other damages to a person or his property is not an offense.
• Section 88 of the Indian Penal Code, 1860, says that no one can be made an accused of any offense if he performs an act in good faith for the good of other people and does not intend to cause harm even if there is a risk involved and the patient has given the consent explicitly or implicitly.

Expert opinion

The Commission cannot constitute itself into an expert body and contradict the statement of the doctor unless there is something contrary to the record by way of an expert opinion or, if there is any medical writing relying on which, the statement can be primarily based. 

The number of medical negligence cases is increasing day by day so expert’s opinion are important in such cases. 

Medical negligence complaint in civil cases 

• The position concerning negligence under civil law is extremely important because it encompasses various elements in it. 
• Under the tort law or civil law, this principle is applicable even if doctors provide free services. Thus, it can be stated that where the Consumer Protection Act (CPA) ends, the tort law begins.
• In cases where the services offered by the doctor or the hospital don’t fall within the definition of ‘services’ under CPA, patients can claim compensation under the tort law. 
• The onus (burden) of proof is on the patient and he needs to prove that because of the doctor’s actions, the injury has been caused to him.

Compensation claim

In Civil liability, the claim for damages is suffered in the form of compensation. If there is any breach of the duty of care while operating or under the supervision of the hospital or any doctor. They are vicariously liable for such wrong committed and are liable to pay damages in the form of compensation. 

If someone is an employee in a hospital then it is the responsibility of the hospital if an employee causes harm to a patient by acting negligently.

In Mr M Ramesh Reddy v. State of Andhra Pradesh[5], the hospital authorities were held to be negligent for not keeping the bathroom clean due to which an obstetrics patient fell in the bathroom and died therein. The amount of compensation which was awarded against the hospital was Rs. 1 Lac. 

Medical negligence cases in consumer courts

All the medical services fall under the purview of the Consumer Protection Act, 1986. After the judgment of the Supreme Court in Indian Medical Association vs. V.P. Shantha[6], this medical profession and services have been brought under the purview of the Act.

In this case, the court discussed the important question of medical negligence i.e. whether a medical practitioner could be said to rendering services under Section 2(1)(o) of the Consumer Protection Act, 1986. 

The following points were laid down:

• Medical Services should be treated as the “services” under Section 2(1) (o) of the Consumer Protection Act, 1986. It is not a contract of personal service as there is no master-servant relationship between them. 
• Contract of service in Section 2(1) (o) cannot be confined to contracts for the employment of domestic servants only. The services rendered to the employer are not covered under the Act.
• Medical Services which are free of charge are not considered under the purview of Section 2(1)(o) of the Act.
• Medical Services which are rendered by independent doctors and are free of charge are under the jurisdiction of Section 2(1)(o) of the Act.
• Medical Services rendered against payment of consideration are also within the scope of the Act.
• The payment of consideration of a medical service is paid by some third party and is treated under the ambit of this Act.
• Hospitals in which some persons are exempted from charging because of their inability to afford or any other financial problems will be treated as a consumer.

Section 2(1)(o) of the Consumer Protection Act defines the ‘deficiency of service’ which means any fault, imperfection, etc. in the quality or manner of performance that is required to be maintained by or under any law or it has been undertaken to be performed by a person in pursuance of a contract or otherwise.

Who is a consumer

According to the Consumer Protection Act, 1986, the consumer is the one who:

• buys any goods or hires any service.
• uses the goods or hires any service with the approval of any buyer or the service provider.
• uses the goods and services to earn a livelihood.

When can a complaint be filed

In the following cases a complaint about medical negligence can be filed:

• The liability of a doctor arises only when the patient has suffered an injury due to his reckless or negligent conduct which was not appropriate according to the set standards of the medical profession.
• He is liable only for those consequences which resulted from a breach of his duties.
• The plaintiff must prove the breach of duty and causation.
• In case there is no breach then neither the doctor nor the hospital authorities can be made liable.
• If the possible causes of an injury is the negligence of a third party, an accident, etc. then it must be proved that the doctor’s negligence was the most probable cause of the injury to discharge the burden of proof on the patient (plaintiff).
• Sometimes, ‘res ipsa loquitur’ which means “the thing speaks for itself” comes into play. In such cases, it can be clearly seen that the doctor was negligent in performing his duties. This discharges the burden of proving negligence on the plaintiff.
• Normally a person is liable for his own acts but when the concept of vicarious liability comes into play when a doctor can be held liable for the acts of other persons who are responsible for the injury caused to the plaintiff.

Who can file a complaint

The below mentioned can file a complaint;

• A consumer or 
• Any recognized consumer association whether the consumer is a member of such association or not, or 
• The central or state government.

A “Recognized consumer association” is a voluntary consumer association, the one i.e., registered under the Companies Act, 1956 or any other law for the time being in force.

Forums in which one can file a complaint

The complaints under the Consumer Protection Act for medical negligence can be filed at: 

Compensation claim

The CPA will not be able to help the patients who availed a doctor’s service free of charge or if he has paid only a nominal registration fee.

However, if a patient did not pay because of some  financial problems or incapacity to pay, they will still be covered under the Act and will be considered to be consumers and can sue under the Consumer Protection Act.

Appeal by doctor 

An appeal against any decision of the District Forum can be filed before the State Commission and if still you are not satisfied then it goes to the National Commission and the last step that can be taken is to file it in the Supreme Court from the National Commission. 

The appeal should be filed within 30 days from the date of the decision.

A doctor can make an appeal in the following cases:

• According to Section 80 of the Indian Penal Code, 1860, if anything happens by accident or misfortune and there was no intention or knowledge and the act was lawful and was being performed in a lawful manner by lawful means with proper care and caution is not an offense.
• According to Section 81 of the Indian Penal Code, 1860,  if anything is done with the knowledge that it is likely to cause harm and if the same is done without any intention to cause any harm and in good faith for avoiding other damage to a person or his property is not an offense.
• According to Section 88 of the Indian Penal Code, 1860, no one can be held liable for an act which has been done in good faith for the benefit of someone and does not intend to cause harm even if there is any risk involved and the patient has given the consent either implicitly or explicitly.

Medical negligence cases in high courts/ supreme courts

In State of Haryana v. Smt Santra[7], the Supreme Court held that it is the duty of every doctor to act with a  reasonable degree of care. However, no human in this world is perfect and even specialists make mistakes, a doctor can be made liable only if he fails to act with such reasonable care that every doctor with ordinary skills would be able to do.

In Achutrao Haribhau khodwa and Ors v. the State of Maharashtra[8], the Supreme Court noticed that the medical profession is very wide and there are a number of admissible courses for the same. Therefore, we cannot hold a doctor liable as long as he is performing his duty with due care and caution. Merely because he chooses any other course of action over another, he is not liable.

In the case of  C.P. Sreekumar (Dr.), MS (Ortho) v. S. Ramanujam[9], the court dealt with a medical negligence case in which the respondent was injured while going on a bicycle. He sustained severe injuries and a hairline fracture of the neck. On considering the various options available the doctor chose to perform hemiarthroplasty instead of internal fixation procedure. The surgery was performed the next day. The respondent filed a case against the doctor for not adopting the internal fixation procedure for the injury. The Supreme Court held that the appellant’s decision for choosing hemiarthroplasty for the person who is 42 years of age was not unacceptable as to make it a case of medical negligence.

In Vinod Jain v. Santokba Durlabhji Memorial Hospital & Anr.[10], the Supreme Court has mentioned the factors to be considered while establishing the liability in medical negligence cases. In this case, the appellant challenged the NCDRC in the apex court i.e. the Supreme Court of the country. The Supreme Court upheld NCDRC’s judgment and made the below-mentioned observations:

• A doctor cannot be said to be negligent if his acts are in accordance with the set guidelines, merely because a body is there which holds a contrary view.
• A doctor need not have special expertise in medicine and it is enough if he exercises ordinary skills that an ordinary man of that profession would be able to do.
• A doctor cannot give assurance for any recovery as it is not in his hands and he can only try his best. The only assurance he can give is that he holds requisite skills in the profession and while undertaking this he should perform his duties as a reasonable man of the profession and in accordance with the standard of care in the medical profession.  

Medical negligence cases in India 

Medical Negligence cases

In the case of Dr M. Kochar vs Ispita Seal[11], the National Consumer Dispute Redressal Commission discussed the issue of failure in the IVF procedure. The patient filed a complaint against the doctor for medical negligence for the failure of this procedure. The National Commission held that no success in operating a patient cannot make a doctor liable for medical negligence.

Supreme court judgement on medical negligence

Listed below are some of the landmark supreme court judgments on medical negligence:

• The landmark judgment in medical negligence cases and the first judgment that comes into our mind with the highest amount of compensation granted till date is Dr. Kunal Saha Represented By Sri … vs Dr. Sukumar Mukherjee And Ors.[12] which is famous as the Anuradha Saha Case. In this case, the wife was suffering from drug allergy and the doctors were negligent in prescribing appropriate medicines for the same which ultimately aggravated her condition and led to the death of the patient. The court held the doctor liable for medical negligence and awarded compensation amounting to Rs. 6.08 crore.
• In the case of V.Kishan Rao Vs Nikhil Super Speciality Hospital[13], where a lady who was to undergo the treatment for malaria fever was treated differently. An officer in the Malaria Department filed a suit against the hospital authorities for performing the treatment of his wife negligently, who was undergoing the treatment for typhoid fever instead of malaria fever. The husband got the compensation of Rs 2 lakhs and in this case, the principle of res Ipsa loquitor was applied.
• In Jacob Mathew .V. State of Punjab[14], the Supreme Court held that in some cases doctors are bound to take make difficult choices. Sometimes situations make them go for things involving greater risk because of higher chances of success in taking that decision. And there are some cases in which there is lesser risk involved and higher chances of failure. So, the decision will depend upon the facts and circumstances of the case.
• In Juggan Khan v. State of Madhya Pradesh[15], the appellant who was a registered Homoeopathic medical practitioner. After seeing an advertisement a woman went to him for the treatment of guinea worms. After taking the medicine prescribed by him, she started feeling restless and even after the administration of some antidotes, she died in the evening. The appellant was convicted for murder under Section 302 of the IPC. The court held that it was a negligent act to prescribe poisonous medicines without proper checking and knowledge of the same.
• In A.S. Mittal and another V State of UP and Others[16], the Apex Court dealt with the case of a mishap in an ‘Eye Camp’ in Uttar Pradesh. In the camp, about 108 patients were operated out of which 88 underwent cataract surgery. Out of all these people 84 suffered permanent damage to the eyesight. It was found that this mishap was due to normal saline which was used in the operations. The court held the doctor liable as this amounts to medical negligence. A PIL was filed in this case under Article 32 of the Constitution. 
• In the case of Poonam Verma v Ashwin Patel and others[17], the respondent had a diploma degree in Homoeopathic Medicine and he administered some allopathic drugs to a patient who was suffering from high fever. Subsequently, the patient was shifted to a nursing home where he died. The court held the respondent liable as he was registered for providing Homoeopathic treatment but not under the Allopathy system and his actions amounted to medical negligence. The Supreme court has also defined the term “Medical Negligence”.
• In Spring Meadows Hospital and another v Harjol Ahluwalia[18], a child who was suffering from typhoid was admitted to the appellant’s hospital. The nurse gave an injection to the child after that he collapsed. After taking all the possible steps the child was shifted to AIIMS. The doctors there informed the parents about the critical condition of the child. The child had a cardiac arrest because of the overdose injection that was given to him. The court held the doctor and the nurse liable to compensate for this negligence. 
• In Bhalchandra Alias Bapu & Another v. State of Maharashtra[19], the Supreme Court opined that while negligence is an omission to do something which a reasonable man would do or doing something that a reasonable man would never do; criminal negligence is the gross neglect to exercise reasonable care and precaution to guard against the public as well as against an individual.

Conclusion

Though the doctors are seen as God and patients believe that they will get better after the treatment and that they would be healed by the treatment provided. But sometimes it so happens that even the doctors make mistakes which cost a lot to the patients in so many ways. Also, in some instances the mistakes made by them are so dangerous that the patient has to face problems and undergo immense sufferings.

The usage of equipment and medical tools in health care sector should be made  with due care and caution as it can lead to an injury to the consumer which may further result in the filing of a complaint against the doctors and the other authorities involved. Yet, there is no provision which can make the manufacturers of such unfit equipment liable for the damages.

Another important concern is that the services which are rendered free of charge are excluded from the scope of the Consumer Protection Act, 1986. This creates a problem for patients who suffer damages.

People are losing faith in the medical profession due to some serious medical negligence cases which have made them disabled for their remaining lives. Some serious introspection and analysis are required to be done for the Medical profession. It has utterly failed in self-governance. The medical ethics need to be reformed and developed so as to serve with complete righteousness.

References 

[1] 2010

[2] 1995 ACJ 1048

[3] 1969 AIR 128

[4] 1998

[5] 1975 36 STC 439 AP

[6] 1995 SCC (6) 651

[7] 2000

[8] 1996 SCC (2) 634

[9] 1996

[10] 2018

[11] 2011

[12] 2011

[13] 2010

[14] 2005

[15] 1965 SCR (1) 14

[16] 1989 AIR 1570

[17] 1996 SCC (4) 332

[19] 1968 SCR (3) 766

The post Medical Negligence in India appeared first on iPleaders.

This article is written by Shivani Verma, a student of Guru Gobind Singh Indraprastha University, New Delhi. In this article, she has discussed various important legal aspects of eve-teasing.

Eve-teasing meaning

If in a public place, displeasing or adverse remarks are passed to a woman, then it will amount to eve-teasing. A public place can be any place which includes street, market, malls, public transportation etc. Indian law does not provide the meaning of eve-teasing. “Eve” in the term eve-teasing represents that the woman herself tempt the male for disgraceful comments and behaviour towards her. The term contains some demerits because it is blaming the victim for her own sufferings. It shows that the cause of eve-teasing is a woman herself. 

Sexual assault or sexual harassment of women either verbally or by making any type of vulgar gestures is defined as “eve-teasing”. If eve-teasing is also considered as harassment of a woman. It includes vulgar gestures, sexual remarks, winking, whistling, staring, touching inappropriately, groping etc. In South Asia, eve-teasing is considered as a common euphemism for sexual harassment of women by men in various public places.

In Vishakha vs. State of Rajasthan[1], the Supreme Court provides us with the guidelines on the acts that will amount to sexual harassment. These acts include:

1. Either directly or indirectly, if there is unwelcome sexually determined behaviour,
2. If there is any type of physical contact or advances,
3. If any demand or request for sexual favours is made,
4. It includes sexually coloured remarks,
5. Any other type of physical, verbal or non-verbal conduct which is of sexual nature will amount to sexual harassment.

Eve-teasing meaning in Hindi

In Hindi eve-teasing is known as “chheda-khaanee” or “छेड़खानी”. 

Section 294 IPC

The dignity of women is being taken care of by various laws that are stated in the Indian Penal Code, 1860 [IPC]. The acts or behaviour that causes hurt to the dignity of women is dealt with a few sections of IPC. Section 294 and Section 509 of IPC are two sections related to this.

If obscene acts are committed in public or obscene words are spoken in public then Section 294 makes the punishment for such acts mandatory. Section 294 states that if anyone does any obscene acts in a public place or sing, recite or utters any obscene song, ballad, words in a public place or even a place that is close to a public place and such an act causes annoyance to others then it will amount to an offence under Section 294.

The person will be punished with imprisonment up to 3 months or fine or both. This section is not gender-specific so, male or female can be a victim or the offender. The penalty will depend upon the severity of the offence.

Section 509 IPC

A person who expresses words, gestures, acts with an intention to hurt the modesty of the women then such person will be penalized under Section 509 of IPC. This section is also referred to as eve-teasing section. After reading this section one can easily interpret that by introducing this provision the legislature intended that any sort of aggression into a woman’s modesty either by word, deed or act will not be tolerated.

This section states that a person who has an intention to insult the modesty of woman either by uttering any word, making any sound, gesture, or exhibits any object with an aim that such gesture or words are heard by the woman or it intrudes upon her privacy then he will be punished with an imprisonment up to year or fine. The penalty will depend upon the severity of the offence.

The offence under this section is cognizable and bailable in nature. This section can be tried by any magistrate and it should be kept in mind that this section will be applicable if there is an intention on the part of the offender to insult or hurt the modesty of a woman. 

Eve-teasing History

In the 1970’s, the problem of eve-teasing received public and media attention. In modern times, more and more women have become independent they often go to places of work, colleges etc which means that they are no longer accompanied by males which were considered as a norm in the traditional society. 

The problem of eve-teasing grew at an alarming rate. The need was felt by the Indian government to take remedial measures which include both judicial as well as law enforcement methods in order to curb this practice. Various efforts were made in order to sensitize the police regarding this problem. 

The police then started to round up the eve teasers, the woman police cops dressed in normal clothes were deployed, this particular step proved to be effective. In other states, several other measures were also taken by the police in this regard. The police set up dedicated women’s helplines in various cities, special police cells and various police stations were staffed with women.

Due to changing public opinion against this practice, a lot of women came forward to report about this issue in this period. But in some cases, these incidents became more grievous. There was a rise in the number of cases related to acid throwing because of which states like Tamil Nadu declared it a non-bailable offence. The number of women’s organisation increased at an alarming rate. Reports related to bride burning increased during this period. To change the lenient attitude of people towards offence related to women many laws were implemented such as The Delhi Prohibition of Eve-teasing Bill, 1984.

A case was reported in 1998 were a female student Sarika Shah died, this resulted in the implementation of some tough laws to counter this issue. A female student of Maharaja Sayajirao University assaulted four men after the men made some lewd comments about a girl who was staying in SD hotel.

Due to fear of reprisals and exposure to public shame many cases are unreported. In 2008, a 19-year old youth was caught making lewd comments to passing females, then the Delhi Court ordered the youth to distribute 500 handbills outside schools and colleges detailing the consequences of indecent conduct.

Depiction in popular culture

Depiction in films or Indian shows where a boy flirts with a girl in the beginning accompanied by song, dance and at the end the girl surrenders herself to the boy, it often instigate young men to follow it as an example. Even the term roadside Romeo was also used in the film Roadside Romeo (2007).

It is also depicted in popular culture that if a girl is in problem and is teased by boys then the hero comes and fight with them to save the girl.

Legal redress

Earlier, victims used to seek recourse by Section 294 of the Indian Penal Code 1860 which states that a man will be held guilty if he makes a girl or a woman target of obscene gestures, remarks etc. Law does not provide us with the definition of eve-teasing. A fine of Rs. 2000 and imprisonment of 2 years will be imposed if a man shows any pornographic or obscene pictures, books or papers to a woman or a girl under Section 292 of the Indian Penal Code, 1860 and in case if this offence is repeated then the offender will be held liable for imprisonment up to 5 years and a fine of Rs. 5000.

If a person passes any negative comments or shows obscene gestures to a girl or a woman which intrudes on her privacy will be held liable for imprisonment up to 1 year and a fine or both. The Criminal Law (Amendment) Act, 2013 brought changes to the Indian Penal Code, 1860 by making sexual harassment an expressed offence under Section 354A. Under this section, the offender will be punishable with imprisonment of 3 years and fine or both. 

New offences like disrobing a woman without her consent, stalking or any other type of sexual offence by a person are introduced by this Act. This Act made acid attack a specific offence which is punishable with imprisonment not less than 10 years and the imprisonment can extend to life imprisonment and with fine.

No. 9 eve-teasing (New Legislation) 1988 was proposed by the National Commission for Women (NCW). The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 was passed by the Indian Parliament that provides for the protection of female workers in the workplace. On 9 December 2013, this act came into force.

Public response

In 2002, after the rise of eve-teasing cases Nirbahaya Karnataka which is also known as Fearless Karnataka which is a type of coalition between many individuals and groups which includes Alternative Law Forum, Blank Noise, Maraa, Samvada and Vimochana organised various public awareness campaigns which include the projects like Take Back the Night etc. The Black Noise project was started in 2003. In 2008, a programme to fight eve-teasing was hosted.

In order to prepare the city for the Commonwealth Games that was to be held in 2010, the Department of Women and Child Development introduced a steering committee. In Mumbai, trains were introduced with a compartment known as ‘Ladies Special’ in which women can travel without fear of sexual harassment. Metros have also introduced ladies coach.

Eve-teasing faced a lot of criticism from the media and social media websites like facebook.

Whether eve-teasing a Civil wrong or Criminal wrong 

Eve-teasing is considered as a civil wrong because the offender not only causes injury to the plaintiff mentally but also physically. There is an encroachment of women’s right to privacy and her dignity. There are certain provisions in the Indian Penal Code, 1860 which defines and describes eve-teasing. 

Section 294 of the Indian Penal Code, 1860 states that if anyone does any obscene acts in a public place or sing, recite or utters any obscene song, ballad, words in a public place or even a place that is close to a public place and such an act causes annoyance to others then it will amount to an offence under Section 294.

Section 354 states that if force is used to outrage the modesty of a woman then the offender will be punished under this section provided that there must be an intention on his part to outrage her modesty.

Section 509 of IPC states that a person who has an intention to insult the modesty of woman either utters any word, make any sound, gesture, or exhibits any object with an aim that such gesture or words are heard by the woman or it intrudes upon her privacy then he will be punished with an imprisonment up to year or fine.

Eve-teasing is basically an attitude or a mindset which is depicted by a particular set of behaviour. In the case of Deputy Inspector General of Police and Anr. vs. S. Samuthiram[2], the Apex Court states that eve-teasing is conduct that attracts penal action, but this is only seen in one state which is the state of Tamil Nadu. In 1998, a woman died due to eve-teasing which led the government to bring an ordinance which is known as the Tamil Nadu Prohibition of eve-teasing Ordinance, 1998. 

This ordinance was later known as the Tamil Nadu Prohibition of eve-teasing Ordinance, 1998 (Eve-Teasing Act). The government holds the view that eve-teasing is an evil that needs to be eliminated from the society so for this State Government of Tamil Nadu provides with the Tamil Nadu Prohibition of eve-teasing Act, 1998(TN Act No. of 1998). This act provides with the definition of eve-teasing. 

According to this Act, eve-teasing means that a person whose conduct is a shame, intimidation, fear or embarrassment to a woman which also includes any type of nuisance, assault or force used against the women then this will be known as eve-teasing. The scope of eve-teasing was broadened by including in it places like an educational institution, temple, place of worship, bus stop, road, railway etc. Eve-teasing would be considered as a crime if it happens at one of these mentioned places.

Eve-teasing- Violation of Right to Privacy

The act of eve-teasing is considered constitutionally immoral because it violates a person’s right to privacy by interfering into his/her personal life. It is also a violation of the Fundamental Right to Life that is provided to us by Article 21 of the Indian Constitution because it not only affects the dignity of a woman but it also affects her self respect.

Types of eve-teasing

Before 2013, the scope of the law on sexual harassment was narrow. Earlier, it includes Section 294, Section 354 and Section 509 of the Indian Penal Code, 1860. But after passing of the Criminal Law (Amendment) Act, 2013 it also includes in it Disrobing (Section 354-B), Voyeurism (Section 354-C) and Stalking  (Section 354-D).

Causes of eve-teasing

The main causes of eve-teasing are:

1. In recent times it is often seen that there has been degradation of social, cultural and moral values.
2. There is a lack of positive attitudes towards women in society.
3. People often consider women as commodities.
4. There has been widespread pornography.
5. Due to the free and uncontrolled telecast of satellite TV channels people are often influenced by films, shows, etc.
6. Due to unawareness of the parents regarding their children.
7. Eve-teasing is also an increasing problem in society because there has been a lack of proper education and gender discrimination in society.
8. Due to less separate laws regarding eve-teasing.
9. Unawareness of people regarding eve-teasing laws.

Eve-teasing complaint

The victim/complainant should immediately go to the following places and file an FIR:

1. Nearest police station, or
2. Nearest women’s police station, or
3. Public grievance cell at the Commissioner of Police’s office.

The victim should note that the FIR would be recorded in a register and she should take the registration number or receipt for the same. If the victim is a woman then she can also ask the police to come to her home and make further inquiries regarding the incident. It is always advisable to consult a lawyer before registering the FIR.

The victim can call on 100 (Police control room) or 1091 (Women helpline number) at the time of the incident.

How to stop eve-teasing

eve-teasing can be stopped if people are educated about the laws as well as punishments related to it because the offender must know the consequences of his act. A person should carry safety equipment with him/her that can help to combat the problem there and then. 

Technology can be helpful in this case, the person can set SOS numbers of the close ones on his/her phone. If a person is self-reliant and can defend himself/herself then the cases of eve-teasing can be reduced. Laws should be made more strict and hard punishments should be imposed so that a person should not think of committing such types of offences.

Eve-teasing complaint letter

A letter can be written to the police superintendent against eve-teasing in the town.

Sample Complaint Letter:

To, 

Superintendent of Police

New Delhi-110052

Sub: Complaint letter against eve-teasing in the town

Respected Sir,

I am Shivani Verma from Ashok Vihar area. Recently, there have been a lot of incidents of eve-teasing in our area by local men. Those men usually use vulgar words against the women or pass indecent comments. Women feel insecure in our area. Yesterday, this happened with my neighbour who was coming back from her college. Please think about this because this problem is increasing at an alarming rate.

So, here I am requesting you to allocate more police force in this area and take strict action against this issue.

Yours Sincerely,

Shivani Verma.

Eve-teasing complaint letter can be written to an editor of a newspaper. Following is the sample for complaint letter:

E-17

Ashok Vihar,

Phase- IV

Delhi-110052

The Editor,

The Times of India

J.P. Road

Delhi

5 July 2019

Sub: Problem of eve-teasing is increasing at an alarming rate in our city.

Sir,

I am writing this letter to express my deep concern regarding the problem of eve-teasing in our city. While commuting school girls and college going girls feel very insecure. Rowdy boys often pass indecent comments due to which girls have to feel embarrassed.

The problem of eve-teasing is not only restricted to some places but this problem is everywhere on roads, on buses, trains, auto-rickshaws etc. After the implementation of so many laws still, girls are not safe in our city. There should be frequent patrolling by the police in the public areas.

An active role should be played by society in order to curb the evil of eve-teasing. If any eve teaser tries to tease a girl then people should immediately come forward and help her. With the help of people, this problem can be solved easily and efficiently. I hereby request the concerned authority to look into this matter and do the needful. 

Thanking You.

Yours truly,

Shivani Verma.

Eve-teasing case

In the case of State of Kerala vs. Hamsa[3], the accused was winking his eyes at a woman and it was noticed by other people present there. This act by insulted her modesty. The court held that even if those gestures were not noticed by other people except the woman, those acts would also amount to insult to her modesty as she had no intention to reciprocate these actions. The accused had committed an offence under this section. The accused was also held liable under section 354 IPC as he caught holding the arms of the woman which was an obvious act of assault to outrage her modesty.

In the case of Rupan Deol Bajaj vs. KPS Gill[4], the Supreme Court held that to ascertain that whether the modesty of a woman was outraged or not will depend solely upon the action of the offender. This is the ultimate test to establish an offence under this act. The action should be capable of shocking the sense of decency of a woman. Keeping this view in mind the act of Mr Gill by slapping Mrs Bajaj on her posterior amounted to outrage her modesty because this act was not only abused to the normal sense of feminine decency but also an insult to the dignity of a woman.

In Santha vs. State of Kerala[5], the court held that if a man exposes his private organs to a woman in an indecent way, use obscene words with an intention that the words should be heard by the woman or tries to show her his obscene drawings then he will be held liable under this section.

In Tarak Das Gupta vs. State[6], the accused posted a letter to an English nurse with whom he was not acquainted. The letter contained indecent overtures. The court held that the accused intended to insult the modesty of the nurse and is liable under this section.

Eve-teasing punishment

Punishment for all kinds of offences under eve-teasing are:

1. Obscene acts and songs– Maximum 3 months or fine or both
2. Outraging the modesty of a woman– Minimum 1 year but can extend up to 5 years and fine
3. Insulting the modesty of a woman–  Maximum 3 years and fine
4. Sexual harassment– Maximum 3 years or fine or both and in case of sexually coloured remarks than punishment is 1 year of imprisonment or fine or both.
5. Disrobing– Minimum 3 years but can extend to 7 years and fine
6. Voyeurism– Minimum 1 year but can extend to 3 years and fine.[Subsequent conviction- A minimum of 3 years but can extend to 7 years and fine].
7. Stalking– Maximum 3 years and fine [subsequent offence- non-bailable]

Eve-teasing statistics

National Crime Record Bureau (NCRB) provides us with crime statistics for 2016. In 2015, a total of crime against women recorded were 3,29,000 and in 2016 it increased to 3,38,000.

Conclusion

Eve-teasing is a problem that needs to be addressed as soon as possible. eve-teasing should be treated as an independent crime. Better enforcement mechanism and stricter laws are needed against eve-teasing. Law-makers should make a law addressing this issue because it can help in lowering the number of cases of eve-teasing. Police should pay more attention towards this crime and should focus on the issue as soon as the complaint is lodged. eve-teasing might sound less harmful crime but it can turn into a grievous one if not stopped at an early stage.

References 

1. Vishakha vs. State of Rajasthan, AIR 1997 SC 3011
2. Deputy Inspector General of Police and Anr. vs. S. Samuthiram, CIVIL APPEAL NO. 8513 OF 2012
3. State of Kerala vs. Hamsa, 1988 9 Crimes 161
4. Rupan Deol Bajaj vs. KPS Gill, AIR 1996 SC 309
5. Santha vs. State of Kerala, (2006) 1 KLT 249
6. Tarak Das Gupta vs. State, (1925) 28 Bom LR 99 

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This article is written by Anshul Chauhan, pursuing a Certificate Course in Advanced Criminal Litigation & Trial Advocacy from LawSikho.com. Here he discusses “Procedure to make a Complaint against a Government Officials asking for a Bribe”.

What is Corruption? 

Corruption is an evil that strikes at the heart of a healthy democracy. It creates inequality and is a major impediment in achieving inclusive development. In other words, corruption is related to the abuse of power or authority to receive illegal benefits for oneself or others. 

In the present world, there is hardly any sector where corruption has not raised its ugly head. From criminal-bureaucratic-political nexus at highest levels to corruption in catching a corrupt person, corruption exists everywhere.

What is a Bribe

A bribe is a quid-pro-quo to perform one’s duty improperly or dishonestly.

What are the different levels of Corruption 

Broadly speaking corruption exists at following levels

• Criminal-Bureaucratic-Political nexus

This is a high-level corruption and many times it goes unpunished either due to the complex nature of the evidence or lack of political will for prosecution. However, its complex nature does not mean that wrongdoer goes unpunished. Enforcement Directorate enforces the Prevention of Money Laundering Act 2002 and Foreign Exchange Management Act 1999. Central Board of Direct Taxes enforces the Prohibition of Benami Property Transactions Act 1988 and the Serious Fraud Investigation Office is the designated agency to look into the white-collar crimes. Some of the cases that may fall under this category include lobbying by MNC’s for securing a government contract, economic offences like money laundering by shell companies, defaulting on bank loans, influencing a national or international investigation, media manipulation, policy change, mafia connections, etc. An appropriate example is milking of huge infrastructure contracts by politicians and high ranking officials. The bribe is paid by the companies through a series of intermediaries or shell companies to escape detection. Usually, the bribe transactions are clothed as consulting fees to create a smokescreen around the transactions and persons involved in such transactions.

• Corruption at the Grassroots level

Corruption at the grassroots level may include a variety of illegal acts.  Adulteration in construction material and food industry, allocation of resources, job appointments, delivery of basic services like ration card, certificates, health, electricity, water, compromise in ethical standards, use of influence, neglect in performing one’s duties, regularization of illegal property, etc.

What are the various legislations under which a person is punishable for corruption?

For the offences pertaining to the Prevention of Corruption Act 1988 and Indian Penal Code, a person can approach directly to CBI, CVC, Police, State Vigilance or Court to make a complaint against a public servant asking for a bribe. Under the Lokpal & Lokayukta Act and Whistleblowers Protection Act, a person has to address the complaint to the Lokpal and competent authority respectively.

The various legislations to contain corruption in India are as follows – 

The Prevention of Corruption Act, 1988 and Prevention of Corruption Amendment Act 2018. The aforesaid Act is supplementary to the other existing laws against corruption. The scope of bribery under POCA revolves around the term “undue advantage”, which is defined as “any gratification whatever, other than legal remuneration”. The explanation attached to Section 2 (d) defines gratification as “not limited to pecuniary gratifications or to gratifications estimable in money.” Thus, gratification can be related to cash or kind.

What is the Procedure to file a complaint under the Prevention of Corruption Act?

Following government agencies are empowered to investigate and make an arrest under the Act

1. CBI  – Inspector of Police 
2. In Metropolitan Areas under CrPC – Assistant Commissioner of Police
3. Elsewhere – Deputy Superintendent of Police or a Police Officer of equivalent rank
4. Any other person other than above can investigate or arrest for the offences under POCA under two situations – 

First – When a Metropolitan Magistrate or First Class Magistrate orders such other person from aforesaid agencies to make such arrest.

Two – When a State Government authorizes Police officer below the rank of Inspector of Police to make an arrest or investigate the matter under POCA.

Also, if any Public Servant is guilty of Criminal Misconduct as per Section 13 (1) (b) then to continue with investigation authorization of Superintendent of Police is required as per Act.

Who gives sanction for conducting the Investigation under the POCA 

The Investigating agency has to obtain the previous sanction for an investigation into the complaint from the State or Union Government as the case may be. A sanction is not required when a person or Public Servant is caught red-handed. The time period for granting sanction under the Act is 3 months, which may be extended by one month.

Which Court is authorized to try offences under the POCA

Under the Act, Central or State Government is authorized to appoint a person who is a Sessions Judge or Additional Sessions Judge or Assistant Sessions Judge under CrPC as a Special Judge or Judges to try the cases. The time period to conclude the trial is two years, if the trial is not concluded within two years then the trial Judge has to record reasons in writing for delay in conclusion of a trial. This time period is extendable by 6 months at a time but the extension given to conclude the trial cannot exceed beyond four years. The trial Judge follows the procedure laid down under CrPC for the trial of warrant cases. Also, a Special Judge can try any offence under the Essential Commodities Act summarily.

Who can obtain sanction for prosecuting Public Servant under the Act? 

A previous sanction for prosecution from the authority (State or Central Government) under which the Public Servant is working is required for the following offences – 

1. Public Servant being bribed (section 7), 
2. Public Servant obtaining undue advantage (section 11), 
3. Criminal misconduct by Public Servant (section 15) and 
4. Attempt by Public Servant to commit criminal misconduct. 

Under the Act, two kinds of a person can apply for sanction to prosecute a Public Servant, namely – 

1. A Person who is part of investigating agency, such as CBI or Police, and
2. Any other person. As per section 19 of the POCA, any other person can ask the previous sanction of concerned government for taking cognizance by the court for the offence mentioned under sections 7, 11, 13 and 15.

The procedure to obtain sanction to prosecute Public Servant is as follows – 

Firstly – Person files the complaint along with reasonable materials before a Court of Special Judge about the alleged offence for which the Public Servant is sought to be prosecuted

Secondly – The Court has not dismissed such complaint u/s 203 of CrPC.

Thirdly – After receiving the complaint, the Court directs the complainant to obtain the sanction for prosecution against the Public Servant. 

Fourthly – A person has to apply to the concerned government seeking sanction to prosecute the Public Servant.

Fifthly – The concerned government agency has to give ‘opportunity to be heard’ to the accused Public Servant as to why sanction to prosecute him should not be given, and

Lastly – The time period under which the concerned government may try to grant sanction is 3 months, extendable by a period of one month.

Indian Penal Code 

Chapter IX of the IPC deals with offences by or relating to Public Servants and Chapter IX A deals with offences relating to elections. Also, a complaint can be filed against the Public Servant u/s 409 for the Criminal Breach of Trust. The aforesaid offences fall under cognizable as well as non-cognizable offence.

A complaint against the Public Servant for an offence of bribery or relating to bribery, under the IPC, can be registered in the following ways – 

One – For the cognizable offence one can go to Police Station with the material evidence and lodge an FIR u/s 154 of the CrPC. The complaint can be oral or in writing.

If the Police Station refused to lodge an FIR, the aggrieved complainant can send his complaint to the Superintendent of Police u/s 154(3) of the CrPC to investigate the case.

Two – For non-cognizable offence, a person can give the information to the Police Officer, who may record the information in a book, but section 155 (2) of the CrPC divests the Police Officer of any investigating power in such a case. The Police Officer can refer the informant to the Magistrate empowered to try the case or commit the case to trial.

Three – Under section 200 of the CrPC, a person may make the complaint, orally or in writing, to the Magistrate.

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The Lokpal and Lokayuktas Act, 2013 (L&L Act, 2013)

Recently, former SC Judge was appointed as the first Lokpal.

Jurisdiction of the Lokpal – The Lokpal can inquire into offences under the Prevention of Corruption Act by anyone who is or has been –  

1. Prime Minister
2. Union Minister 
3. Chief Minister
4. Member of Parliament
5. Group A, B, C and D officers
6. Officers of Central Government
7. Chairperson, Member, Officer, Employee of any organization established by an Act of Parliament, financed (wholly or partly) or Controlled by the Central Government, including any society or trust or anybody receiving foreign contributions above ₹10 lakh.

Procedure to make a complaint and conduct of preliminary inquiry and investigation by the Lokpal – 

1. Any person can make a complaint to the Lokpal, however, the alleged offence must fall under the offences mentioned under the Prevention of Corruption Act, 1988. Till now there is no prescribed form for making a complaint to the Lokpal, therefore, Lokpal scrutinizes the complaints in whatever form they are sent by the complainant. Upon receipt of a complaint, an Inquiry Wing of the Lokpal conducts preliminary inquiry and investigation.  
2. Upon the receipt of a complaint by the Lokpal, Lokpal decides whether to proceed with the complaint or not.
3. If it decides to proceed with the inquiry, Lokpal can direct any of the following agencies to conduct the investigation for ascertaining the existence of prima-facie case – 

One – Internal Inquiry Wing headed by the Director of Inquiry u/s 11 of the L&L Act, 2013 or

Two – Any other agency including CVC and Delhi Special Police Establishment a.k.a CBI, the L&L Act 2013 mandates Lokpal to seek an explanation of the Public Servant in respect to complaint before referring the case for investigation to any other agency. 

Three – Preliminary inquiry of Group A, B, C, D Public Servant is referred to the Central Vigilance Commission. The preliminary inquiry report of Group A and B Public Servant is submitted to the Lokpal whereas in respect of Group C and D Public  Servants the CVC proceeds as per the CVC Act.

Before ordering, a prelim inquiry by any other agency the Lokpal asks explanation from the Public Servant to ascertain the existence of prima facie case for conducting a preliminary inquiry.

CrPC, DPSE Act and PoCA require the sanction of Central Government or State Government, as the case may be for the purpose of prosecuting a Public Servant for an offence committed during the discharge of his or her duty, however when the case is referred by the Lokpal to any investigating agencies only a Lokpal can grant sanction for prosecution, notwithstanding anything contained in the  aforementioned Acts. In other words, for cases referred by the Lokpal, an investigating agency works under the superintendence and control of the Lokpal and not under the State or Central Government. However, sanction from Lokpal is not required where provisions of removal from office are provided under the Constitution of India. Also, this power of Lokpal does not interfere with the procedure in respect to “Dismissal, removal, or reduction in rank of persons employed in civil capacities under the Union or State” and disciplinary action by the Public Service Commission’s under Art 311 and 320 (3) (c) of the CoI respectively.

Lokpal can punish complainants for false, vexatious and frivolous complaints under the L&L Act, 2013 

Except for the complaints made in good faith, the Lokpal is empowered to initiate proceedings against the complainant u/s 46 of the Act for making a false, vexatious and frivolous complaints.

What is the procedure to initiate proceedings against the Complainant

1. Public Servant against whom such false complaint was made makes a complaint to the Special Court or an officer authorized by the Lokpal makes a complaint to the Special Court
2. Only a Special Court designated under the Act are authorized to take cognizance of section 46 
3. Such a complainant on being found guilty is liable for up to one-year imprisonment or fine up to ₹10 lakhs, also the Court can order the complainant to pay compensation and legal expenses to the Public Servant.

The Whistleblowers Protection Act, 2014

Can the identity of the complainant be revealed by the competent authority under the provisions of the Whistleblowers Protection Act, 2014?

No, and yes, as per the provisions of the Act, the competent authority to whom the complaint is made cannot reveal the identity of a complainant. However, there is an exception to the non-disclosure of identity provision. Under certain circumstances, the competent authority can reveal complainants identity only with complainants consent. Such circumstances usually include seeking comments and material for completion of the preliminary inquiry. In case a complainant objects to the revelation of his identity then as per the Act, the complainant has to provide all documentary evidence to sustain its complaint. Also as per section 13 of the Act, a competent authority or an order of the Court can decide to reveal the identity of the complainant when the circumstances demand so.

What protection is available to the complainant under the Act

1. Central Government cannot initiate any proceedings against the complainant for making a complaint or assisting in any inquiry under the Act.
2. If any complainant is victimized, an application can be made to the competent authority for seeking redress against victimization. The competent authority then issues a direction to the concerned public authority to stop victimization or protect the person from any such victimization. The competent authority can issue directions to police for protecting a witness as well as the complainant
3. Any public authority defaulting in obeying the instructions of the competent authority is liable to a penalty which may extend to 30,000.

What is the punishment for offences under the Act?

A complainant cannot make a complaint directly to the Court for the offences punishable under the WhistleBlowers Protection Act. A Court can take cognizance only on a complaint made by the competent authority to the Court. As per the Act, only CJM or CMM can try the offences punishable under the Act.

There are three types of punishments prescribed under the Act. They are – 

• A complainant can be imprisoned up to two years along with a fine up to ` 30,000 for making a false, frivolous disclosure except when made under the good faith 
• A Head of Department or a Public Servant is made liable for furnishing incomplete, incorrect or misleading report  – 

1. For not furnishing the report – `250 per day till the report is furnished but not exceeding beyond `50,000, and
2. A penalty up to `50,000 for submitting a misleading, incomplete or incorrect report

• Any person who reveals the identity of the complainant can be imprisoned for up to three years along with fines up to `50,000.
• A Head of Department can be punished as per the offence committed where the commission of an offence is established under the Act
• A company can be punished as per the offence committed 

What are the agencies involved in inquiry, investigation, and prosecution?

• Central Bureau of Investigation (CBI)

A person can send complaint relating to corruption in Central Government departments or Central Public Sector Undertakings directly to the CBI through email, post, fax, or in person. CBI maintains a presence in all States and Union Territories of India, the state branch of CBI being headed by the Superintendent of Police.CBI derives its power to investigate crime from the Delhi Special Police Establishment (DSPE) Act, 1946.  The contact information of CBI for the purpose of reporting a crime can be accessed at http://cbi.gov.in/contact.php.

Any person reporting corruption to CBI must not make an anonymous or pseudonymous complaint, however, a complainant or informant can always ask CBI to keep his identity concealed at the time of making a complaint. To report corruption by any Central Government Public Servant, a person can approach the Anti-Corruption Branch of the CBI in the State. It is not necessary to visit CBI office, a complaint can be sent by telephone, SMS, email, post, or by posting it in CBI Website. An oral complaint can also be made to CBI. CBI needs prior approval of the State Government for taking up investigation inside State. Even a Central Government needs prior approval from the State Government before assigning any case to the CBI where State Government machinery is involved. Only HC and SC can assign CBI to conduct investigation anywhere inside the country without the consent of the State.  

CBI also lays a trap to catch a public servant asking a bribe red-handed. The money used in the trap has to be provided by the complainant. The money used in the trapping process is returned to the complainant at the conclusion of the trial.

• Central Vigilance Commission (CVC)

CVC is a designated vigilance agency under the CVC Act, 2003, exercising superintendence over inquiries into the offences alleged to be committed by the Public Servants under the POCA, 1988. CVC can make an inquiry by its own Officer or Chief Vigilance Officer of the organization/department or ask any other investigative agency to probe into the matter including police and CBI. When CVC refers to the inquiry to any other agency, it exercises complete control over that agency or officers with respect to the referred matter. CVC is not a uniform inquiry making a body for all Public Servants but complaints related to only certain categories of the Public Servants can be made to CVC. Private individuals and State government organizations are kept outside of the purview of CVC.

How to Register a Complaint with CVC

There are two ways in which a complaint can be filed with CVC –  

1. By addressing a letter/email with relevant facts and materials directly to the CVC. Any complaint made via email must contain the postal address or contact number of the complainant otherwise the CVC will treat the complaint as anonymous or pseudonymous. 
2. By registering a complaint directly on CVC’s website.
3. If the CVC refers the case to CVO or CBI, a complaint number is provided to the complainant. The complainant can then check the complaint status on CVC’s website. 
4. As per the Complaint handling Policy of the CVC, a complainant must refrain from making anonymous and pseudonymous complaints.
5. Complaints failing to meet the above criteria are referred to the concerned CVO and complainant has to seek the status directly from the CVO.

How to make WhistleBlower Complaints (Public Interest Disclosure and Protection of Informers Resolution (PIDPIR) to CVC

It is simply the case when the complainant does not want to reveal his identity. When a complainant exercises PIDPIR option then CVC is mandated to not only conceal his identity but also provide protection from any harassment, physical threat or victimization. However, a complainant has to make sure to not reveal his identity to any other Government office or department by sending the same complaint to other offices under his name. Where confidentiality of complainant’s identity is not possible to maintain, then commission usually obtains the consent of the complainant before proceeding to take action on it. 

Procedure for making complaints under PIDPIR

1. 1. 1. Unlike normal complaints, the whistleblower’s complaints cannot be made on CVC’s website or via email. A PIDPIR complaint has to be made strictly by post only.
      2. A complainant must be cautious to not write his name or address on the complaint letter. Name and address must be separately sent in another paper or given at the top end or such part of the letter so that it can be easily blocked out or cut off from the letter.
      3. Finally, the complainant must superscribe the envelope as “PIDPI” or “WHISTLEBLOWER”. And address the envelope to “Secretary, Central Vigilance Commission”
      4. If after performing the aforesaid steps, a complainant is victimized then he or she can file an application seeking commission’s intervention to provide protection from victimization.

• Anti Corruption Bureau or State Vigilance

Complaints regarding corruption by State Government employees can be reported to the States Anti- Corruption Bureau or State Vigilance Commission. State Vigilance Commissions or ACB are usually empowered to register corruption cases under POCA, 1988 or Essential Commodities Act, 1955, etc. Information regarding any Public Servant accepting or demanding bribe can be given to the respective State Vigilance in person or by post, email, phone or fax.

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

The post Procedure to make a Complaint against Government Officials asking for a Bribe appeared first on iPleaders.

This article is written by Ashish Sharma of Rajiv Gandhi National University of Law, Patiala. The author discusses the future and prospects of Artificial Intelligence.

Introduction

In today’s progressing technology savvy world, artificial intelligence (AI) has been gaining intense and widespread momentum. The artificial intelligence systems with the incorporation of complex technologies are capable of making astounding inventions in a matter of time. AI-enabled software systems have transgressed their ability to perform simple calculations to creating complex creative works such as poetry, art etc. This poses the question that whether these works are also capable of affording special status under Intellectual Property Rights Law like any other work produced by a human being.

What is Artificial Intelligence

In our common saying, AI is the ability of a computer system to take the decision on its own. According to Mr. John McCarthy, artificial intelligence basically is the notion of a program, processing and acting on information, such that the results are parallel to how an intelligent reasonable man would respond in response to similar input. However a few years later of the introduction of AI technology, the question arises whether the output rendered is the result of its own intelligence or of its creator. Artificial intelligence systems gathered the attention of the legal authorities when computer work was denied copyright by Registrar of Copyrights on grounds of indeterminate legal status.

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Artificial Intelligence and Copyright

Copyright is a legal right or an intellectual property right granted to creator of original work, allowing him or her exclusive rights for distribution and use. Generally, two essentials features are to be fulfilled by the work to come under the ambit of copyrights. They are:

• Work should be in tangible form; and 
• It should be original.

Copyrights are generally given for the artistic and literary works. Since creation of literary works is one of the contemporary areas of AI’s applicability, so the study of copyright in light of Artificial intelligence becomes relevant. The understanding of the same can be done through the following case laws:

• Burrow Giles Lithographic Co. v Sarony

In this case, the essential question of the matter was that can copyright protection be granted to a photograph. This case was of importance as in this case the court addressed the dichotomy between the mechanical and creative labour. The Court, in this case, discussed the possibilities of granting copyright protection to the product which is the output of the machine and held that purely mechanical output is by itself not creative. Thus, if such a strict approach like this is to be applied to AI systems then it would be difficult to grant copyright protection to the work created by them.

• Bleistein v Donaldson Lithographing Co.

The court in this case clearly differentiated between the work of the human and something artificial. Justice Holmes in this case, with the majority explained the uniqueness of human personality and demanded the same as the important thing to be eligible for a copyright. The court in this made its stand clear by using the word “something irreducible” which meant that there was no scope for anything to be granted copyright which was not a product of human’s creativity.

• Alfred Bell & Co. v Catalda Fine Arts

In this case, the court witnessed a softer approach towards giving the copyrights. The Court held that for the work to be original, it must not be fully copied or plagiarized from other artistic works. The court even held that any accidental variation may be claimed by an author as own. Therefore this judgement gave the right to claim copyright of the output generated through the AI system as they are not copied. This clears down the ambiguity of stance that prevails around the grant of protection to works of AI systems. However, the lack of definitive stance also affects the right of holders.

Copyright Protection and AI

The debate regarding the ambiguity of stance continues even after the various judgements. The National Commission on New Technological uses of Copyrighted Works in its report stated that, “the capacity of AI with capacity to create independent work is not practical it is theoretical. The Office of technology Assessment had a completely different stance and suggested that, “AI works can be considered as legitimate co-authors of copyrighted works”.

Lovelace one of the sharp critics against grant of copyright propounded that machine lacks creativity because of bounded behaviour. The logic of her argument that creativity is something which does not follows the usual routine. In one of the case the Court was faced with a question whether the work can be registered in the name of Jesus and held that non-human nature of the source of a work cannot be a bar to copyright. The judgement favoured granting protection to the work done by AIs as they are non-human in nature. 

Even if the countries allows to grant copyright to AIs works then to whom the copyright should be granted as current law requires legal personhood to be a right holder. However, there exists a loophole as if the AIs system is sold or purchased then copyright should be granted to the buyer or creator.

Countries like England, New Zealand favoured the creator in such a case. The major problem in the present system is that who would bear the criminal liability of AIs. According to the current stance, the criminal liability falls upon the creator or programmer despite his actus reus and mens rea. Therefore the present law requires some immediate consideration for removing the loopholes.

Artificial Intelligence and Patent Laws

As previously illustrated, AI systems are often used in every field to simply and executed the basic functions and reduce human effort which increases the interaction between AI and patent laws in the technological world. The huge development of AI systems from a technological viewpoint poses a new and challenging question from a legal point. 

A patent is an especial right granted to an invention. The invention can be understood as any process or product, which provides novel way to the users of performing any action, including something which offers new way of solving technical problem. Anyone holding such an exclusive right is entitled by law to exclude others from selling, making or even using the invention patented for a limited term.

Therefore such right leads to the guaranteed monopoly to the benefit of the original inventor. The result and functions which are performed by the AI-enabled systems are ultimately the outcome of the human cognitive application process. 

Under United State current law, an inventor is an individual or group of individuals who discovered the subject matter. This definition eliminates the inferences which support the premise that the U.S. sought to include inventions or possibility of inventions being made by anyone besides humans. However, the increasing AI systems involved in the invention process demands legal perusal. European Union attempt to encourage the nations to expand their national laws to accommodate the copyrightable work produced by computer and other devices under the category of intellectual creation can be witnessed as a faint perusal.

The European Parliamentary Committee noted that attention to patent rights is required particularly speaking of AI systems as it can be easily forecasted that in times to come AI systems could surpass the human intelligence in terms of performing functions and can pose challenges to the present system. 

The autonomy enjoyed by such systems allows them to perform functions without any human intervention and allow these machines to be employed at an early stage which can help in making a new discovery. 

The three factors an invention should hold to be eligibility to grant patent are:

• Possess novelty (should be different from the existing one);
• Should be capable of industrial application; and 
• It should involve an inventive step.

The artificial intelligence technology must advance to equip systems with human-like intelligence so that judgement on new situations can be easily made them. Furthermore, the Court in Bilski v Kappos denied patents to program simply because what they perform is mechanical and not inventive.  This is important because AI primarily runs on computer programs devised to perform certain functions.

However in countries like India where rigid requirement of computer programs in addition with novel hardware being eligible for patent can be removed, if AI-enabled systems create software which entails practical utility but perhaps it should be capable of industrial application to pass the patent test. Current laws and guidelines on a general note to be streamlined in a manner which allows invention by AI to be granted patents. 

Invention and Inventor New Dimensions

Inventions consist of many important elements in determining whether patent should be granted or not and also certain requirements are to be fulfilled when one is to be classified as an inventor. In United States for something to be understood as an outcome of invention, it must go through the stage of conception. According to which a permanent idea has to be conceived in the inventor’s mind before putting a thing into practice. If something is developed not based on conception then such a thing cannot be termed as an ‘invention’ and as a result, also a person cannot be termed as an ‘inventor’.

The most persuasive reason argument behind the inclusion of AI’s in ’inventor’ category is the abolition of ‘flash of the genius test. Even there can be a collaborative invention which would acknowledge both the computers and human parts as inventors. But this cannot be applied because of the lack of legal personality of the computers under the present law. As patents are provided to attach honour to the invention and protect the rights of the inventor.

The opponent of the idea of providing patents to the invention of AI’s systems put forward that computer lack of such attachment makes them incapable of having strong opinions regarding the use of their invention which defeats the purpose of granting patent protection.

Suggestions

• Uniform Recognition: There should be uniform recognition of the artificial intelligence system. Artificial intelligence systems carry recognition only in few selected countries such as New Zealand, United States of America and England. All nations must come forward and carry on an initiative and take a positive step towards recognition of AIs.
• Lacunae in Criminal liability: According to the present system of law, acts of AI are copyrighted by its creator. So if any criminal act is done by the system then the creator is held liable for the actions sometimes of which he is not aware of. Such a big fault in the law should be fixed as it would have a great impact upon the life of the creator and provide a specific action on the AIs in such cases. For example destruction of the artificial intelligence system.
• Passage of different Act: Nations should take positive initiate and pass a different Artificial Intelligence Data Protection Act as in today’s world AIs are performing human-like functioning in every sphere. It would not be astonishing in future if they perform better functions then human. To have a track of the same, separate legislation of AIs should be drafted. The act framed can provide proper remedies for both the civil and criminal offences as it would help in removing the unnecessary liability of the creator.
• Clearance of Ambiguity: The confusion regarding the application of patent laws should be removed by legislators with the advent of AI-enabled systems. With widespread expanse of the solutions generated by artificial intelligence, protection of the sources becomes an integral question for the countries.

Conclusion

The current phase of law regarding artificial intelligence is problematic where recognition of work generated by AIs is under ambiguity. So there is a need of some rigid, proper, structured and clear legislative rules to ameliorate the problem. With the widespread usage of artificial intelligence techniques in every day to day life there arises an immense need of implementing the proper guidelines urgently in the country.

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This article is written by Akash R. Goswami, student of the faculty of law, Aligarh Muslim University. In this article, he has discussed the Parliament Privileges in India, its types, freedom of speech with respect to Parliament and other aspects of Parliamentary privilege in Indian Parliament.

Introduction

The privilege may be defined as an exceptional right and exemption. The expression “Privilege and Immunity”, under the Constitution of India and in the arena of Parliament, donates certain special and exceptional rights of Lok Sabha and Rajya Sabha or its individual members who are generally accepted as a necessity for the implementation of constitutional functions.

In the case of Raja Ram Pal vs. The Hon’ble Speaker Lok Sabha[1]. Supreme Court in their own view defines the word “privilege” that it is immunity or a right provided to the specific person. In another way around what a person can not do in general, now he/she eligible to do a certain act.

For example, being an Attorney General you have the right to watch any proceeding of any house, but not in the case of an ordinary person. Privilege consists of the known laws, customs and usage of Parliament. Thus, the term privilege is referred to as the special rights that are available to a different extent and in various forms for the members of Parliament throughout the world. However, the term applies to certain immunities enjoyed by both the houses of the Parliament collectively, and members of each house individually.

It is the privilege conferred on any member of parliament that he is immune from whatever he will say on the floor of the house, and in case of detention whether in civil or criminal, no member shall be made liable and detained 40 days before and 40 days after the session of the house. But there is a condition to comply with the availment of these privileges. If a person ceased to be a member of Parliament, then the privileges are called off. So in order to enjoy immunities, one should have to be a member of any house of Parliament.

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Who Enjoys Parliamentary Privileges

Sir Thomas Erskine define the expression “Parliamentary Privilege” as the total sum of the specific rights enjoyed by each House of Parliament collectively is a constituent part of Parliament,  and by the members of every house of Parliament one by one, without which they could not proceed with their functions, and which exceed those possessed by different bodies and people.

The privileges only given to the members of the Parliament, and also conferred on the person who actively participates in any of the committee and in the function of the parliament, just like it incorporates on Attorney General and union ministers but in case of President, even though he is a part of Parliament, does not entrust with parliamentary privileges.

Article 105

Privileges, power, right etc for the two houses of Parliament individually and of the members and committees thereof-

1. Comes under the concern in the provisions of the constitution and the rules, regulations and standing circulations which mandates procedure and conduct of Parliament, and it shall be necessary that freedom of speech in every house of parliament provided without any checks and balances. As if there is restriction then the representative will hesitate to express their feelings, which is not the aim of the Democratic form of Government. 
2. No member of the Parliament should be made liable for any proceeding initiated against him in the court in respect of anything said, vote which was given by him or any committee thereof, and no person should be made liable in context to the publication by him or under any authority empowered by either house of Parliament of any report, vote, proceeding or paper.
3. In another sense, the privileges immunity and power of each of the two houses of Parliament and of its members and committees thereof, shall be such as may define time to time and provide by the Parliament itself and through established procedure by law, and, until so defined shall be a matter of concern for those of that house and of members of that house and for its committees immediately before the date of initiation of section 15 of the constitution by the (forty four amendment) act, 1978.
4. The above mentioned constitutional provisions of clauses (1),(2) and (3) shall apply in relation to the person who by virtue has the right to freedom of speech, and otherwise to take part in proceedings of the Parliament of any of its committee thereof, the clauses will apply in relation to the Parliament.

Article 194

1. This subject comes under the provisions of the constitution and rules, regulations and standing orders which regulates the procedure of the State Legislature, and there shall be freedom of speech for the member of the legislature in every state.
2. No member of the state legislature shall be compelled for any proceeding initiated against him in any court of law in regards to anything utter or any vote given by him or her in the state legislature and any of its committee thereof, and no person shall be made liable to prosecute in the context of the publication by him or under any authority of a house of state legislature of any paper, vote, report, or proceedings.
3. In another sense, the privileges and immunities of the house of the state legislature, and of its members and the committees of the house os state legislature shall be such as may be defined by the state legislature from time to time through established procedure of law, and, until so define, shall be the subject matter to those of that house and of its member and its committee thereof, immediately before the section of 26 of the constitution by the (forty four amendment) act,1978.
4. Above given constitutional provisions of clauses 1,2 and 3 shall apply in relation to the person who by virtue of this constitution has the right to freedom of speech, and the other way around to take part in the proceedings of the house of the state legislature and any of its committee thereof as they pertain in relation to members of the state legislature.

It was observed from the above two articles of the Indian Constitution that the position of the house of the Parliament is identical to the position of the state legislature. Therefore, Article 105 apply, mutatis mutandis, to the state legislate as well.

Types of Parliament Privileges

Collectively enjoyed by the member of Parliament

• No person whether a member or a stranger can be arrested and no legal proceedings can be initiated against him either criminal or civil, within the premises of the house of the Parliament and without the approval of the proceedings officer of that particular house.
• No court shall have the right to investigate the proceedings of any house of the parliament and any of its committees.
• Parliament shall have the power to exclude guests or visitors from the meeting of the house or also have the power to conduct a secret meeting if the matters of national importance or any matter of public importance.
• Parliament shall have the right to penalize its member or an outsider for committing the breach of its privileges. And for contempt by reprimand, admonition or imprisonment and also have the right to expel and suspend in case of a member.

Individually enjoyed by the member of Parliament 

• When a parliament is in session, a member of Parliament or a person on whom this right and immunities conferred may refuse to appear in the court of law or to present any evidence in court.
• Members of the Parliament cannot be arrested when the sitting of the Parliament in session and 40 days before the commencement and 40days after the end of the session.
• No member shall be made liable to any proceeding in any court for whatever he or she said or any vote was given by him or her during the session in the Parliament or its committees.

Freedom of Speech

The spirit of the parliamentary form of democracy is frank free and valiant discussions in the house of the parliament. For the authority like parliament freedom of speech plays a very indispensable role that provides opportunities to the members of the houses to express their feelings without any sort of fear, hesitation, being penalized for offences such as defamation, innuendo, etc.. The recognition of the right to freedom of speech in parliament came to known in the seventeenth century in the case of SirJohn Elito.

The council of state i.e. Rajya Sabha in its XII report provides that a Parliament can be asked a question in any court of law or any place outside the parliament for making any disclosure or for any information display since it will amount to inference with the right to freedom of speech of that member. Subsequently, Lok Sabha has also propounded that it will amount to contempt of house or breach of privilege if any suit is initiated against any member in a court of law for what he/she spoke on the floor of the house.

The Supreme court case of Tej Kiran Jain V. Sanjeeva Reddy held that “once it is recognised that the parliament was in session and its business being transacted, anything said during the clause of that transaction was completely immune from any proceeding in any court of law”.

Article 105, clause (1), expressly protects the right to freedom of speech in Parliament. It provides that there shall be complete freedom of speech in Parliament. Clause (2), further states that no member of each house of the Parliament shall be made liable for any proceedings in any court of law in regards to anything said or any vote given by him or her in parliament or any committee of parliament.

No action is initiated against the member, for the offence of defamation or in the context of words said in Parliament or its committees, neither civil nor criminal. No imprisonment is there for the mere spoken words by the immunity, it extends to votes, as clause (2) specifically provides that any vote given by him/her in parliament or committee thereof. Though it can be concluded that, the freedom of speech shall extend to other conducts which are done and having a nexus with proceedings of each house, such as, for notice of questions, motions, reports of committee and the resolutions.

It is important to consider that clause (1) of article 105 comes under the subject to the provisions of the constitution and to the standing orders and rules for the regulation and procedures of the Parliament. The word regulation for the procedure of Parliament comes in clause (1) should be read in that manner so that it applies to provisions of both i.e constitution and the rules and standing orders and circulations.

Freedom of speech in parliament becomes concern matter with provisions of the constitution relating to the procedure and regulation of the Parliament i.e subject to the article envisaged in part V contain article 107 and 121. Thus, for instance, freedom of speech in Parliament would not allow a member to talk about conduct and manner of any judge of the high court or Supreme Court. Likewise, the freedom of speech comes under the subject to the procedure or rules of the house, such as the use of unparliamentary conduct and unparliamentary language.

The freedom of speech described under article 105 (1) having a peculiar interest and different from that right which a citizen enjoys as a fundamental right provided under Article 19 (1) (a). The fundamental right, freedom of speech, does have the power to protect an individual completely for what he says. The right has come under clause (2) which is subject to reasonable restrictions of article 19 of the constitution. The term freedom of speech which used for article 105(1) provides that no member of Parliament shall be made liable to any proceedings initiated against him, whether civil or criminal, in any court of law and for the statement made in house while debating in either house of Parliament or any committee thereof.

The freedom of speech provided under article 105 cannot, therefore subject to reasonable restriction likewise it is imposed in article 19 (2). Clause (1) and (2) of Article 105 gives protection to the member of Parliament for what is said within the boundaries of Parliament and not what a member of Parliament may say outside. Similarly, if a member publishes his speech outside the boundaries of Parliament, he will be made liable if the speech found to be defamatory in regards to some person.

The freedom of speech given under article 105 (1) and (2) refers, shall be only available to the member of the Parliament when the session of the Parliament is going on. Therefore, if an order of detention, which refrains a member from attending a session of the Parliament (no occasion shall be raised to said that the right has been invalidly annexed. 

Article 105 (2) confers privileges, in respect of anything said on the floor of the Parliament. The word “anything” is considered as the widest concept and it is parallel to as a whole. The only restriction arises from the word in the Parliament, which means during the session of Parliament and in the course in the transaction of the Parliament. Once it was proved that Parliament was in session and its business was carried out, anything uttered during the course of that business was completely immune from proceedings initiated against the member in any court. This immunity is not absolute but works with respect to the Parliament.

It is one of the alluring features of the parliamentary form of government that the people’s chosen representative should be free to express themselves and their views without any fear of intimidation or any legal consequences. What they said comes only under the purview of the discipline and regulation of the Parliament, the good conduct of the members and the control of the proceedings by the presiding officer. The court has no right to say and interfere in the matter of the Parliament and should really have none.

In a controversial case involving former Prime Minister, several union ministers, members of parliament and others, the court held in the case P.V. Narsimha Rao V. state JMM Bribery[] that the privilege of immunity to exempt the member from the court proceedings in article 105 (2) should be extended to cover the scope of bribes considered by the member of parliament for the purpose of voting in the parliament in a particular form.

The three judges of supreme court did not consider the decision to be right which was given by two judges and explained the expression “in the context of” regarding article 105(2) shall be provided a wide meaning so as to understand an act having a series of chain or connection with the speech or a vote submitted by a member in the parliament or any committee thereof. If interpreted, it would cover within its core, acceptance of a bribe by the member of parliament, further extending to make a speech or to cast his/her vote in parliament or any committee in a particular way.

In this manner, the fix taker MPs, who had cast their vote in parliament against no-confidence motion were held qualified for the security of Article 105(2) and were not answerable in court for supposed conspiracy and agreement. The Court additionally held that the bribe-taker MP, who did not decide on the no-confidence motion was not qualified for protection under Article 105(2).

To the pay off supplier MPs, it was held, the protection under Article 105(2) was not accessible. The court additionally decided that the Lok Sabha could make a move for breach of benefits or disdain against the alleged bribe providers and against the bribe-takers, regardless of whether they were a member of parliament.

The court was anonymously said that the member of parliament who takes a bribe, or who gives bribe but he/she does not have to participate in the voting could not claim the privileges conferred upon them from court proceedings under Article 105 (2). The decision of the Apex court has imploded so much attention of the general public and dissatisfaction among that the review petition is pending in the court.  

Some limitations are also there which should be followed in relation to claim privileges

• Freedom of speech should be according to the constitutional provisions and subject to the procedures and rules of the parliament, provided under article 118 of the Indian constitution.
• Article 121 of the Indian constitution confers that, the member of the Parliament is not allowed to discuss the manner and the judgement given by the judges of the supreme court and the high court. But, even if this occurs, it is an internal matter of the parliament and the court has no right to interfere in it.
• No immunity and right could be claimed and held back by the members for anything which is said outside the proceedings and premises of the parliament.

Right of Publication of Proceedings

Clause (2) of Article 105 (and article 194) expressly provides that “no person shall be compelled to made liable in regards to the publication by him or by under the authority of either house of the parliament for any report, paper, journal, vote or proceedings”.

Therefore, the protection did not address the scope of publication made by the person without the authority of any house of the parliament, however, Common law renders the defence of qualified privilege for fare and exact official reports of proceedings of the parliament, published in a newspaper or as here.

In Wason v. Walter C.J. Cockburn, observed that it was of public sovereignty and comes under the subject to national importance that parliamentary proceedings should be communicated and displayed to the general public, which has an immense interest in knowing was happening in parliament. But to provide an incomplete report or a detach report which contain disconnected part and partial information of proceedings published with the intention to injure individual character will be disentitled to protection. A similar law is also applicable in India.

The Parliamentary Proceedings (protection of publication) Act, 1956 provides that “not a single person shall be compelled for any proceedings initiated against him, either civil or criminal, regarding the publication of the proceedings, in any court of law, for a substantially true journal and report of the proceedings of either house of the parliament until or unless it has been proven that the publication was made with malice intention”. Later the act was deleted during the time of emergency in 1975.

Article 361-A provides that “protection of publication of proceedings of parliament and state legislature” under clause (1) of this article empowers that no person shall be made liable to any proceedings initiated against him, either civil or criminal in any court in regards to the publication made by him in any newspaper of a substantially true report of any proceedings of any house of parliament or the state legislature assembly, or as the case may be, unless the publication made by the member is proven to have been made with the malafide intention.

Moreover, it is also provided that notwithstanding under this clause shall be complied with the publication of any report, paper, vote or proceedings and securely held session of the parliament or as same as the case in the state legislature. Clause (2) provides that clause (1) will apply in relation to the right of publication of reports and protects it broadcast, not detached part of any proceeding of parliament through wireless technology, and part or any service which will broadcast by the member in any platform or station. And insense of agency, it should be viewed as the agency who have reported material to be published. It is further stated in this article, the newspaper includes a news agency which contains report material to be published in a newspaper.

Other privileges 

Clause (3) of article 105, after some constitutional amendment declares that the immunity and right of every house of the parliament, its members and committees shall be such as furnished by parliament from time to time and until it is done by the parliament, which it has not yet been done, shall be dated back on 20th June 1979 i.e from date of initiation of section 15 of the (44th constitutional amendment) act, 1978.

Before this amendment, clause (3) provided that the parliament gives the immunity of each house and its members shall be similar as the house of commons in England at the time of commencement of the constitution. This position till 20th June 1979 was in use and apply in relation to the earlier provision, it is still relevant to depend on the laws as it has been denoted to the English laws. A form that views it may be concluded that there are some privileges that may not be claimed by the parliament of India.

For example, the immunities for access to the sovereign, which is carried by the House of Commons trough it presiding officer to have all the time access for that particular right to the sovereign through their chosen representative can have no value in India. Similarly, a general warrant of arrest given by the parliament of India can not subject to be regarded as a court of record at all in any sense.

Also, the right of the two houses of the parliament, unlike the immunities of the house of commons and house of lords in England are completely identical. To every house of parliament, accordingly, entrusted the right, which is empowered by the House of Commons in the United Kingdom.

Freedom from arrest

It given under this right, no member of parliament or state legislative assembly shall be arrested or detained for civil proceedings initiated against him during a period of 40 days before and 40day after the session of the house. If a member is imprisoned during this period, he should be set free so that he may be able to attend the session of the house.

This immunity does not cover the circumference of arrest or imprisonment on a criminal charge or contempt of court or in preventive detention act. However, in case if a member is arrested, rule 261 of Lok sabha set forth the duties of the detaining body to provide information to the house to which the member belongs to, also provide the reason for his/her arrest or detention, also specified the time of his/her arrest, the place where he will be confined or imprisoned and the period how long that particular member will be detained or arrested.

It has been observed in case of K. Anandan Nambiar V. chief secretary governor of madras that the matter of the parliament does not enjoy any special or specific status as compared to an ordinary citizen of this country in regards to legally fair orders issued for detention purposes.

Freedom from appearing like a witness

The member of the parliament has the special right conferred on them which enables them to not attending court as a witness. They are provided complete right to attend the meetings of the house and perform their duties without any interference while exercising their duties from the court.

Right to regulate internal affairs

The house has the special right to manage and control its own proceedings. The governor has entrusted with the power to call the session of the legislature of the state. But the governor does not have any constitutional right to give orders to the presiding officer about the manner and conduct in which the proceedings of the house should be carried out.

The transaction of the business carried out in the house should be followed according to the rules of the parliament, which are provided by the house itself. In order to strengthen this right, Article 122 (in case of state legislative assembly) expressly provides that the constitutional value or any proceedings shall not be called in question on the ground of any alleged irregularity of procedure or no officer or member of parliament in whom these powers are conferred by virtue of the constitution for mandating the procedure or the conduct for the business transacted out in the parliament or for maintaining orders in parliament shall become under the subject to the jurisdiction of any court in respect of the power empowered by him.

Right to exclude strangers

The right to exclude visitors or strangers or non-members and held a secret session was a tradition of the house. The objective behind this to avoid the act of threatening the member as the visitor may attempt from galleries to interfere in the debate going on.

Rule 248 of the Lok sabha grant the power to the presiding officer, whenever he deems fit, of order to exclude strangers from any part of the house and when the house conducts the secret meeting no guest or non-member is allowed to present the house, lobby or galleries of the house. The only exception and the member of the council of states and the person authorized by the presiding officer should be present.

Parliamentary privileges and fundamental right

In the case Gunupati Keshavram Reddy V. Nafisul Hasan, the home minister was detained at his Bombay residence under the warrant directed by the presiding officer of the U.P legislative assembly for the contempt of the house of the state legislature and was fled to Lucknow and was house arrest in a hotel under the supervision of the presiding officer. While filling for a writ of habeas corpus on that very that his detention was infringed and violates the article 22(2), the Apex court quashed the detention and gave orders for his release as he had not been produced before a magistrate within 24 hours of his arrest as given under Article 22.

This decision, therefore, provides that article 194 (or 105) came under the subject to the fundamental right guaranteed under Article 22(2) in part III in the constitution of India. 

However, in case M.S.M. Sharma V. S.K. Sinah[], it was struggled by the appellant that the immunities conferred on the house under article 194 are subject to the provision of a fundamental right which is envisaged in part III of the constitution. In favour of his allegation, the petitioner relied on the supreme court’s decision given in the case Ganapati Keshavram reddy V. Nafisul Hassan.

But, in M.S.M. Sharam’s case, the Supreme Court held that in case of dispute between Fundamental right under Article 19(1)(a) and the immunities conferred under article 194(3), in that situation fundamental right always occupy the place of superiority and will prevail over the privileges conferred on the parliament and its members, committee thereof. As in the context of article 21, on the facts, the court did not find any infringement of fundamental rights.

Under article 143, the supreme court enlarged the proposition laid down in the M.S.M. Sharma case held that:

We are not in the opinion that it would be correct to read the majority judgment as laying down the general idea that whenever there condition of imbalance between the provision of part V of article 194(3) and any provision of the fundamental right conferred by the part III, the fundamental right will also remain supreme over the other. The unanimous decision, therefore, has to be taken to settle only that article 19(1)(a) would not apply and article 21 would prevail.

There is a rule that every house provides for a committee of privileges. In case of breach of privilege or contempt of the house is in the question, is referred to the committee of privileges. The committee shall have the power to summon or gives direction to call the members or stranger before it. Refusal to present in front of the house or to answer or knowingly gives the misleading statements is itself considered as the contempt of the house. The committee’s recommendations are given to the house which discusses them and their conduct and regarding to this give their decision.

Parliamentary privileges and law courts   

There is one more cornerstone to be achieved by the judiciary. The dispute between the legislative privileges of the houses and the court of the law came to be resolved by the supreme court of India  in the reference case, which is popularly known as the Keshav Singh’s case[] or U.P. Assembly case.

In this case, one person named Keshav Singh who was not a member of U.P. Assembly, published, circulate and printed a pamphlet. The presiding officer of the U.P. Legislative Assembly admonish him for the contempt of the house and committing the breach of the privilege of the member Mr Narsingh Narain Panday. On the same day, Mr Keshav Singh, who was present in the house, by his delinquent act, committed another contempt in the house. The speaker after that, given an order that Mr Keshav Singh should be detained and put behind the bars. A warrant was issued in this regard for his detention in jail for a period of 7 days and he was confined. 

Mr. Soloman, his council, filed a writ petition under section 491 of Cr.P.C. along with article 226, a Habeas Corpus petition coupled and alleged that his detention in jail was illegal, unjust and lack of legal merit because he was not given an opportunity to defend himself and there was an infringement of natural justice in other word is was an ex-parte decision. The petition was taken under consideration by two judges of Allahabad high court which gave the order to grant the interim bail to Keshav Singh and after that he was released. But the decision of the case was pending and would be decided on the merits and evidence provided in the case.

On the judgement given by Allahabad high court, the state assembly, by a resolution took the decision that the two judges, Mr Keshav Singh, and Mr Soloman have committed contempt of the house and order that the Keshav Singh must be immediately taken back into the jail and the two judges and the council of Mr Keshav also brought into custody before the house.

At this, the two judges and the advocate, by means of separate petitions lodged and move to the high court, under article 226 (which empowers the High Court to issue writ) contended that the resolution appeared to be the content of court at the very first sight and it should be set aside and its implementation would be stayed by temporary order.

The petition was considered by the full bench of all the 28 judges of the Allahabad high court. Later court gives the order to grant the stay for the implementation of that resolution. The Assembly after that brings some modification in its order and the warrant against the two judges which was initiated by the house was withdrawn, but the house asked the judges to summon before it and explain their conduct. The judges on that write an application and moved before the court against the modify order of house and the court again granted the stay for the implementation of the order.

At this point, the President refer this matter to the supreme court, invoking the provisions of Article 143(1), for using its advisory power, which provides that in the matter of law if any question is unanswered and he needs to seek advice then in that case he can rely on the judges of article supreme court and the high court. The main questions arose to be were-

1. Whether the state legislature is the sole and exclusive judge of its privileges and whether the legislature is competent enough to punish a person for its contempt even outside of the legislature?
2. Another question was whether the high court who consider the petition of habeas corpus challenging the validity of the detention of a person given by the legislative assembly under a general or unspeaking warrant has committed contempt of the house?

The supreme court given the judgment and express their support with a great sense of majority as in ration of 6:1 and held said that two judges did not commit contempt of house, as under article 226, which empower every high court of India to issue the and adjudicating the writ petitions. And the court has the power to investigate and have a preview of judicial review to check whether the detention of that particular person is legal or not.

The Judges further said that in India The Court shall have the power to check the detention and in that context, they have an option for judicial review to determine the question of the detention valid or order of detention by state legislative assembly, under the general or unspeaking warrant. 

When we refer to Courts in England, in their case Court are not allowed to reconsider the judgement moreover, they don’t have judicial review power to check the validity and legality about the general warrant issued by the House of Commons. On this condition Court further said “ in that manner such a right will not be entrusted with legislature of India, as house of commons is an internal part of High Court, and parliament being superior there and also due to its influential nature, the general warrant issued by the house will not become under the subject of judicial review, By the other courts.

But in India the condition was different, the history and background of the legislature of India had no significance of judicial function and does not claim to be regarded as a Court of record at all”. There it can be concluded that the privilege enjoyed by the House of Commons is not applicable in the context of Indian legislature.  

Article 226 entrusted every High Court of India, in the matter of issuing the writ petition of habeas corpus against any State authority or institution which under Article 12 included the Legislature.

Article 121 of the Indian constitution provides that, the member of the state legislative assembly is not allowed to talk about the manner and conduct of any judge of the Supreme Court and the High Court, but if they do then, in that case, the Court has no right in there matter to interfere.

The court also provides that there is hardly any doubt about, that Parliament is the sole and exclusive judge in the matter of privilege and this fact will not be distorted and not be in dispute, also it could found in Article 194(3). But the main question is in the concern and had implored great attention that whether the privilege claimed by the house of Parliament was provided by Article 194(3) or not, this question was still to be determined by the Court.

The question whether the immunities enjoyed by the Legislature provided under the part of Article 194(3) was subject some restriction in respect of Part III relating to fundamental rights, was left unanswered, however, the tussle is going to resolve. And the Court observed that such privileges were necessarily subject to Article 21 and 22 regarded as fundamental right provided in the Indian Constitution.

Breach of privileges

When any individual or authority does not recognize and attacks on any of the privileges, rights, and immunities, either of the Members individually or of the House in its collective capacity the offence is called the breach of privileges and is punishable by as per the House rules and regulations. Besides breaches of particular privileges, actions must be taken in regards to the nature of offences against the authority or dignity of the House or in other words contempt of the house, such as disrespect to its legitimate orders upon itself, its members or officers, are also subject to punishment as it regarded as contempt of the House. 

Contempt of the House shall be defined generally as “any conduct or negligence which obstructs or bring inconvenience either House of Parliament in the performance of its functions, or which obstructs or impedes any member or officer of such House in the exercise of his duty, or which has a capacity, directly or indirectly, to produce such results.” It may be stated that it is not possible to describe exhaustively every act which might be considered by the House as contempt of the House. The House may punish a person who is found to be indulged in breach of privilege or contempt of the House either by reprimand or admonition or by imprisonment for a specified period of time.

In the case of its own members, two types of punishment can be given by the House, namely, suspension from the duties of the House and expulsion. The penal jurisdiction of the House is neither confined to its own members nor to its officers, but enlarged to all contempts of the House, whether committed by members or by persons who are not members, irrespective of the fact that the offence is committed within the House or beyond its premises. The power of the House to punish any person who commits a contempt of the House or a breach of any of its members privileges is the “keystone” of Parliamentary privilege.

It is the power that gives effect to the privileges of Parliament and pertain its supreme character so far as the protection of its rights and the maintenance of its dignity and authority are concerned. The power exercised by each House of Parliament and the House of the State Legislature to punish the person for contempt or breach of privilege is a general power of committing for contempt analogous to that likewise by the Superior Courts and is in its discretionary nature. It flows from the provisions given under Article 105(3) of the Constitution as affirmed by the Supreme Court in the case of Rajaram Pal & Ors. Vs. UOI & Ors[10].

Norms of punishment for breach of privilege or contempt of the House may impose the following punishments on a person found to be guilty of breach of privilege or contempt of the House. 

(1) Imprisonment: The period for which the House can direct an offender to prison for contempt or breach of its privileges is limited by the duration of the session of the House. As soon as the House discontinues its session the prisoner is set free. There are a number of cases where the audience shouted slogans and threw leaflets from the visitor’s gallery on the floor of the House, the offenders were sent to prison for committing contempt of the House by creating disorder in the public Galleries.

(2) Admonition or reprimand: In cases where the offence of breach of privilege or contempt is not so serious like petty the warrant for the imprisonment of the offender by way of punishment the person concerned may be summoned to the Bar of the House and admonished or reprimanded by the presiding officer by order of the House. The admonition is the mildest form of punishment, whereas reprimand is the more serious remark of the displeasure of the House.

(3) In the case of its own members, two other punishments are also available to the House by which it can express its displeasure more strongly rather by admonition or reprimand, namely: 

             (i) Suspension from the service.

             (ii) Expulsion from the House

 The penalization powers of the House for committing a breach of privilege or contempt of the House are, however, exercised only in extreme cases where a deliberate attempt is made to disturb the house of Parliament to show disrespect and further in order to depict the institution has lost the public confidence. It is also a tradition of the House that unqualified and unconditional regrets sincerely expressed by the persons guilty of breach of privilege and contempt of the House can be accepted by the House. And the House normally decides in such cases to best consult its own dignity by providing no further notice of the matter. 

Contempt of court

There are no codified rules which clearly state what action constitutes a breach and what punishment is granted. Although, there are several acts which are considered by the house as the contempt. It is generally viewed as the actions which intended to obstruct the proceedings of the house and produce a disturbance for the members. 

Some of them are briefly discussed.

Giving misleading statement in the house

The acts which are done only with the purpose to mislead and intended to deceive are considered as a contempt of the house. If the statement is uttered by a person who believes the information to be true then there is no breach violated. It has to be proven that the statement recorded by him/her deliberately with the intention to mislead the house.

Disturbance by outsiders

Any conduct of disturbance created by chanting slogans or throwing leaflets etc. with the purpose of disturbing the procedure and functioning of the house are regarded as the major contempt of the house. The person who commits shall be confined by the house for a specific period of time or an alert is given depending on the sincerity of the case.

Assault on members

The privilege is provided when the member is performing his duties. An assault was done by any person on the member of parliament when he discharged his responsibilities is dealt as contempt of the house.

Writings or speeches defining the personality of members

Any speech published, advertised or libel made against the character of any member also regarded as the contempt of the house. These are ascertained to be necessary because it affects the confidence of people for their representative and role of the member by diminishing the respect for him.

It is, clearly inferred that any attack on the immunity of the members by any intend is considered as a violation of the rights and the parliament can take action concerning the same

Punishment

1. Imprisonment – If the breach of immunities committed is of a heinous nature, punishment can be given in the form of detention or imprisonment to any of the member or the person liable to it.
2. Enforcing fine – If in the perspective of the house, the violation or contempt committed is of economic misdeed and any pecuniary profit has been made from that breach then, the parliament can impose fines on the person.
3. Prosecuting the offenders – The parliament has the power to prosecute the member or an outsider if anyone committing the breach.
4. The punishments are given to its own members – If any contempt is committed by the members of the parliament then he has to face penal consequences initiated by the house itself which could also affect in the interruption of the privileges of the member from the house.

Freedom of the press and the parliamentary privileges

The parliamentary privileges restrict the freedom of the press, which is a fundamental right. Degree of higher care and Caution has to be taken by the press while publishing any report, paper of the proceedings of the parliament or the conduct of any member. There are some instances where the press can be held liable for the contempt of the house-

1. Publishing any sort of news vandalizing the character of any member of the parliament.
2. Any premature or incomplete information published.
3. Misrepresenting or Misreporting the proceedings of the house.
4. Publishing the obliterate section of the proceedings.

Indeed of the truth that the freedom of the media comes under the protection of parliamentary privileges, certain amendments have been made in respect to the indemnity of the freedom of the press. If the elementary rights are being violated, there is no sign of democracy. The freedom of the press has to be defended because in India there is an indispensable need to inform everyone about the acts of our representatives Parliamentary Proceedings (Protection of the publication) Act, 1977 [10] protects the rights of the press under given circumstances-

1. The report is made for the Publicam Bonum i.e for the public good
2. The report should not reveal any secret meeting of the house.
3. The reports of the proceedings somehow to be true and real.
4. The report is made without malice intention.

Codification of the parliamentary privileges 

Parliament member enjoys supreme powers by virtue of being a member of the parliament. But there is always a doubt of misuse of the privileges conferred on them because they do not have any sort of restrictions and checks and balances on their privileges. They have the right to be the judge in their own case, regulate their proceedings, and also to decide what was considered the breach and what punishment should be given for the committed of that breach, are solely decided by them.

The power vested in their hands are too wide in scope as compared to the fundamental rights vested in the hands of citizens. Having a no codification of the privileges, they have gained omnipotent power because there is no expressed provision to put a bar on their immunities. The privilege from any civil arrest for 40 days before and after the session and during the session of the house results that they are free from arrest for even more than 365 days. No law has been till date enacted by the parliament for the codification of the parliamentary privileges.

It is mostly resisted by the members because the enactment of the law will be made privileges subject to the fundamental rights and would be entitled to judicial analysis. Justice M.N. Venkatachaliah is the head of the Constitution Review Commission suggest to define and confine the privileges for the free and independently functioning of the legislature. This raised the presumption that codification will involve interference of the court as if the matters would be presented in a court of law. Non-codification of privileges has provided the immense opportunity of greater powers vested and being enjoyed by the members of the house. But, now the time has come to confine and define the privileges and actions must be taken in case of misuse, for smooth and accordingly functioning of the parliament without any conflict.

Judicial review of the parliamentary privileges

The Indian judiciary has been entrusted to take care of and vested with the responsibility for the protection of the fundamental rights conferred by the Constitution. Parliament members claim absolute sovereignty over their privileges and also have the privilege that if in any case they do not want the judiciary to interfere in that. But, the judiciary is considered as the guardian and exclusive protector of our Constitution and it cannot stood firmly if any of the fundamental right of the citizen is violated due to privileges conferred or when there is an escape from any criminal liability.

The judiciary has to take a step on the wrongs committed by the members of the house who are taking the benefit of the privileges. The Supreme Court in Keshav Singh’s case held that the privileges conferred on the members are subject to the fundamental rights and in case of conflict fundamental right will prevail.

The Supreme Court has also observed that any conflict arising between the privileges and the fundamental rights would be resolved by adopting the harmonious methodology. The judiciary is aware enough about the fact that it does not have jurisdiction over parliamentary matters but Judicial body should have the power to decide, for the betterment of the community that any offence should be resolved by the court as it considered fit.

Parliamentary immunities and the principle of natural justice

In a judgment which was by the Apex Court judges in the case of Algaapural R. Mohanraj v Tamil Nadu[11]. it was held that the principle of natural justice cannot be taken for granted by the members of the Parliament and its immunity committee.

Facts regarding the case

On the date 19-02-2015, some of the members of the Tamil Nadu State Legislative Assembly was suspended on the grounds of misbehaving charge. In furtherance of this, a privilege committee came into existence to investigate the conduct and acts of the members of the Assembly, and further proceedings related to breach of immunity. It was found and proposed that the necessary action must be taken against six members, who are alleged for the breach of immunity.

By a decision dated 31-03-2015, the members were dispersed for a period of ten days. Further, it was extended and cover the scope to reduce their salaries and giving any other benefit or perk till the dispersion period. A writ petition was filed by the members of the Assembly in the Apex Court under Article 32 of the Indian Constitution.

Arguments raised by the members

The argument was raised by the appellant that their elementary rights (fundamental rights) under Article 19(1)(a), 19(1)(g), 14 and 21 of the Indian Constitution have been infringed by the resolution passed by the Parliament of India.

Judgment by the court

The Court does not entertain the argument of the petitioners that the decision offended Article 19(1)(a) and 19(1)(g). It further accepted the argument that the rights were violated under Article 14 of the Constitution in the context of the right to equality. The court noticed that the video recording which showed the act of the members of the legislature, amounting to the breach was not adjacent before the appellants.

If it would have been available then they may have had the chance to explain their actions or why they behave like this. It was further decided and ordered by the Court to Backed the salary and other benefits of the petitioners.

Misuse of Parliamentary Privileges

There is hardly any doubt, that a member of Parliament accepts the bribe to influence the conduct done by him/her as a member is a contempt of house, there is uncertainty whether the Parliamentary Privileges is a bar to the prosecution of the members for law offences of bribery and corruption. Salmon report commission on the standard of code and conduct of parliament stated that the statutory offence of corruption and bribery do not apply to the members of either house of the parliament. The question of whether the legislation is needed in the area of corruption in public life is not solved yet, how Parliamentary privileges affect the criminal liability deemed to be a big issue before the various committees.

In 1972 the question raised whether the court has jurisdiction over MPs in respect of the misuse of parliament privileges as indulging in taking bribes and increasing corruption. A Conservative MP, Mr. Harry Greenway, had been accused of taking bribe jointly with an executive engineering company, which had its contacts with British rail and was an employer in his constituency.

In order to curb the problems, the parliamentary privilege committee decided to codified its privileges so that the member will have some checks and balances over them. As we generally see that the level of debate proceeds in parliament is nothing more than mud-slinging over each other, and after that member take the protection that they exercise their privilege in order to show the general public the truth about their representative.

This act not meant to show the truth but to defame the other member and influence their performance while exercising his/her duties through character assassination.

Privileges give numerous perks and facilities to the members of the house and the member will start misusing it. They use the privileges for their personal means and for monetary profit

These all are the issue can be put in the heading of misuse of parliamentary privileges. And these issues are not new they have they root since so long, but there is a hope which we can rely upon and that is judicial system, which is exclusively deemed as the sole guardian of our constitution, as the constitution is the supreme law, and all laws contradicting the provisions of our constitution shall be declared as null and void.

However, Buckley J ruled that Parliamentary privileges were no bar for prosecution initiated on members of parliament found to be alleged in common law offences. Unfortunately, the case never proceeds to full trial.

Conclusion

It has been shown that there is an unmistakable division about what all rights and benefits are supreme and what isn’t. In India Legislative Assemblies and Parliament never release any legal capacity and their verifiable and protected foundation does not bolster their case to be viewed as courts of record in any sense. No insusceptibility from an investigation by courts of general warrants issued by House in India can, in this way, be asserted. 

Both the Parliament and State Legislatures have an obligation to look cautiously under the steady gaze of making any law so it doesn’t hurt different rights. It is likewise an obligation of the individuals to appropriately utilize these benefits and not abuse them for substitute purposes that are not in the support of general enthusiasm of the country and open on the loose. 

The Court has developed the correct convention to decide the benefits of the parliament that the Indian Parliament can receive. The Doctrine of Pen, Ink and Indian elastic hypothesis.

As to obtaining models and instances of benefits from the Constitution of different nations, the Supreme Court in case M.P.V. Sundaramier and Co. v. Territory of Andhra Pradesh[12]. advised: “The strings of our Constitution were no uncertainty taken from other Federal Constitution yet when they were woven into the texture of our Constitution their compass and their composition experienced changes. In this manner, significant as the American choices are as indicating how the inquiry is managed in the Federal Constitution extraordinary consideration ought to be taken in applying them in the understanding of our Indian Constitution.” 

The National Commission to Review the Working of the Constitution (NCRWC) has additionally prescribed in the report, that “The benefits of lawmaking bodies ought to be characterized and delimited for the free and autonomous working of Parliament and State Legislatures.”

It might in this way be expressed that the codification of benefits would reinforce the standard of law. Along these lines, it may be effectively reasoned so as to decide the benefits, the house can’t aimlessly embrace a similar that exists in Britain however needs to choose and examine whether it suits the Indian Democracy and does not outrage the Republic for the country.

To know more about parliamentary privileges and immunities, please Click Here.

References

1. https://indiankanoon.org/doc/1757390/
2. https://www.5rb.com/case/john-v-associated-newspapers-ltd/
3. 1970 AIR 1573, 1971 SCR (1) 612
4. https://www.indiatoday.in/magazine/cover-story/story/20051226-jharkhand-mukti-morcha-bribery-scandal-in-1993-corruption-got-institutionalised-in-india-786386-2005-12-26
5. https://trove.nla.gov.au/newspaper/article/13189722
6.  1966 AIR 657, 1966 SCR (2) 406
7. https://indiankanoon.org/doc/528695/
8. 1959 AIR 395, 1959 SCR Supl. (1) 806
9.  AIR 1965 All 349, 1965 CriLJ 170
10. https://indiankanoon.org/doc/544981/
11. https://indiankanoon.org/doc/38086329/
12. 1958 AIR 468, 1958 SCR 1422

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A student of faculty of law, Aligarh Muslim University, Amanat Raza, has written this article. In this article, he discusses the concept of Government of India, its features and why some of its features have been taken by our Constitution. 

Introduction 

This legislation was the longest Act passed by the British Parliament after its domination over India. It was the result of a very long process that started when the Simon Commission was appointed to look into the matter which was not satisfied by the Indian politicians. Dyarchy system that was introduced by the Government of India Act, 1919 (the “1919 Act”) did not prove to be a satisfactory experiment by the British Parliament. 

Indian politicians were frustrated at that time because they thought that the area they had officially control over was still in the hands of the British officials with full control over it. Because of this reason, these politicians wanted a check of India’s constitutional arrangements and it could be fixed. So, to review this matter and to make changes this had been given to the Simon Commission. 

The report of the Simon Commission[1] proposed to scrap the dyarchy system and instead of that, ‘responsible government in the province’ was sought to be introduced. This report brought us one step closer to the establishment of the Government of India Act, 1935 (the “1935 Act”). The material derived from the 1935 Act not only came from the Simon Commission Report but also different sources as well. These sources were the Third Round Table Conference,[2] reports of the Joint Select Committee [3] and the White Paper of 1933.

Features

This Act gives many salient features out of which some has been considered as the major ones and some as the minor ones. These salient features are given below:

1. This Act shows the dominance power of the British Parliament or its superiority.
2. This Act had proposed to establish an All India Federation and this federation should consist of provinces and Princely states considering both as one unit. 
3. This Act introduced a system of Provincial Autonomy into the provinces in place of the dyarchy system. This time dyarchy was not introduced at the state level it only introduced at the central level.
4. A federal court was established after the recommendation of this Act. This court was introduced after two years of the passing of this Act, i.e., 1937.[4]
5. This Act provides the recommendation for the establishment of the Reserve Bank of India to control the regulation of currencies and credits of this country.
6. After the establishment of this Act, the Council of India that was established by the Government of India Act, 1858 was abolished.
7. Muslims, Sikhs, and others except depressed classes were provided separate electorates after the implementation of this Act.
8. This Act proposed the expansion of Universal Adult Franchise from 3% of the population to 14% of the population.
9. This Act gave Governor the Critical emergency powers that were only enjoyed by him.

All India Federation

This Act having a proposal to establish an All India Federation which would comprise British India Provinces and princely States. The terms on which a state could join the federation were mentioned in the Instrument of Accession. It was at the discretion of the state whether it wanted to join the federation that was given by the Government of India Act, 1935. 6 Chief Commissioner’s provinces, 11 Governor’s provinces and some states who agreed to merge in the stated federation were constituent units of that federation [5].

It had been proposed through this Act that if princely states were entitled to half of the state’s seats in the upper house of the federal legislature then the federation of India would come into existence. The part of the legislation that had not been implemented earlier was implemented after the first election under this Act was held. This legislation came into force in 1937 two years after the establishment of the Government of India Act, 1935.

The approach to form the federation and implement provincial autonomy paved the way for the division of subjects between the Centre and the Provinces. The division of subjects that were given by the Government of India Act, 1919 was revised and added some more subjects in it by this Act of 1935 and included three lists. These were:

1. Federal list
2. Provincial list
3. Concurrent list

Division of powers

This Act centralized all the ruling power in one body, i.e., the Centre. Although the Center possessed a lot of power, it could not interfere in the laws made on the subjects mentioned in the provincial list by the Provinces. This is because this Act gives the province the power of autonomy i.e., they can make laws on the subject matter of the provincial list and centre will not interfere in that particular law that is made. This is the power of ‘provincial autonomy’.

The Governor-General on behalf of Majesty utilises its power either directly or through the appointment of subordinate officer(s). But this power did not prevent the federal legislature from functioning upon subordinate authorities. This Act proposed that a Finance Bill could not be placed in the Central Legislature unless the Governor-General gives his assent or his consent.

Dyarchy at centre

By this Act, dyarchy system was adopted at the central level. There were two categories of federal subjects:

• Reserved subjects 
• Transferred subjects.

Reserved Subjects– The subjects that are mentioned in this category of federal subjects were to be administered by the Governor-General on the advice of the Executive Councillors and the Executive Council could not exceed its limit of three members. Religious affairs, defense, administration of tribal areas and external affairs were included in the reserved subjects.

Transferred Subjects– This subject was to be administered on the advice of ministers and the number of ministers could not exceed 10. Subjects other than reserved were dealt with under the Transferred Subjects. The Governor-General had the power to dominate the ministers.

Federal legislature

This Act proposed that there should be a Federal Legislature consisting of His Majesty, and this legislature would be represented by Governor-General and two chambers, namely the Council of States and the House of Assembly (also known as the Federal Assembly in this Act). The chamber of the Federal Legislature would be summoned to meet at least once in a year.

The chamber of the federal legislature could be summoned, adjourned or dissolved by the Governor-General only who had got these powers through the Government of India Act, 1935. The language that was to be taken into consideration for the proceedings of Federal Legislature could be only in English. 

No discussion was to take place in the Federal Legislature concerning the conduct of any judge of the Federal Court or a High Court in the discharge of his duties. The Governor-General possessed extra legislative powers under this Act but was not allowed to do anything without the permission of His Majesty. 

Council of States

This legislation proposed that there should be a Council of State which consisted of representatives from British India as well as from the Princely States. It also stated that the Council of State could not be dissolved as it got the recognition of permanent body through this Act. First Schedule of this Act gives the provision on which a member can retire or in how much amount they could be retired. It talks that one-third members of the council will retire as per this provision.

Initially, the Council of State had to choose two members of the council respectively as President and Vice President thereof, and in case the post of President and the Vice President becomes vacant, the Council would have to choose another member for the same post. If the post of the President was vacant, then Deputy President could perform his function and in the absence of Deputy President, any member of the council could exercise those functions and also it was at the discretion of the Governor-General whom to give that power.

The President, Deputy President and any person who was appointed to the post of President and Vice President at the time of vacancy, did not possess the right the assembly but at the time of equality of votes in the assembly, they exercised a ‘casting vote’. 

• Representative of British India

In the Council of State, there were one hundred and fifty-six representatives of British India 

• Representatives of Princely States

The Council of State consisted of one hundred and four representatives from the princely states.

Federal Assembly

This Act gave this assembly another name and that was called the House of Assembly. There were two hundred and fifty representatives from British India and not more than one hundred and twenty-five representatives of Princely States in this assembly. Each Federal Assembly was to continue for five years and the assembly could dissolve only after the completion period of these five years.

• Provincial Autonomy

The introduction of Provincial Autonomy was one of the reclaiming features of this Act. Simon Commission recommends to add this part in the Government of India Act, 1935. Provinces were not having an Executive Council and Reserved Subjects earlier but this legislation had added these subjects. This Act discontinued the system of dyarchy or the system of division of subjects in ‘Reserved’ and ‘Transferred’.

The Council of Ministers has got the right of administering on provincial subjects except for law and order. The power to administer on the subject of law and order was in the hands of the government who was having powers superior to that of the Council of Ministers.

After the commencement or the starting of this Act, the Centre’s hold over provincial subjects was reduced. The ministers could not freely exercise their power of running their departments. The dominating power of Governor through which it dominates over the ministers was rarely used by him. The governor on the advice of Viceroy took total control over the provincial government at the time of political breakdown.

• Safeguard and Reservation

Another characteristic of this Act was that it sought to safeguard and to provide reservation to minorities. The reason to add this characteristic feature was the dominance of the majority upon a minority. The power to make changes in the Act was solely to the British government. The Indian legislature could only pray for constitutional change after giving a resolution to Majesty’s Government. This demonstrates how this Act was not an Indian Act, but a mere imposition of rules and regulations on Indians by the British government.

• Establishment of a federal court

This Act also proposed the establishment of a federal court to resolve disputes arising between two states or between state and federal government and also in the case where disputes arose in matters concerning the interpretation of the Constitution. It was empowered to interpret the clauses that were controversial in the Act. Although, the Federal Court was not the final court of appeal. The appeal could be made to the Privy Council in some circumstances.

• Abolition of Indian Council

The Indian Council that was established by the Government of India Act, 1858 was abolished by this Act and in place of that council, it proposed the appointment of Secretary of State and his team which could not be more than six members and could not comprise of members less than three. The power of Secretary of State got diminished and the Governor-General became more powerful than him after the establishment of provincial autonomy through this Act.

• Extension of franchise 

This Act introduced the extension of the franchise. Approximately 10% of the total population had the right to vote to appoint representatives to this legislature. The Act did not hold its hand over the communal electorates but it had extended it holds. For the first time, the direct election was introduced in India with the help of this Act.

• Federal railway authority

This Act had given the command of the railway in the hands of a new authority called Federal Railway authority. The member in this authority was seven in numbers and these members were free from the control of councilors and ministers. The authority directly reported to the Governor-General. The main idea behind the establishment of this authority was to confirm the British stakeholder that the investment they have done in the railway was safe.

• Reorganization of provinces

This Act also did some kind of restructuring or reorganization of the provinces. A province was separated from Bombay and named as Sindh. Another thing that has done was split of Bihar and Orissa to become separate individual provinces of Bihar and Orissa. So this Act formed the two new provinces and these are Sindh and Orissa.

• Separation of Burma

Simon Commission proposed to the Government of India to separate Burma from India and this proposal was accepted by this Act. In 1935, the Burma Act was passed and its separation from India was done after two years of this Act i.e., in 1937. The Burma Act proposed for a new Burma office which had the power to establish Burma as a separate colony. 

The department of Burma and India was headed by the Secretary of State of India and Burma as he was appointed to look into the matter of both the countries and also he headed the department of both the colonies. Lord Dundas was the first person to become Secretary of State of both the colonies i.e., India and Burma.

Importance of the Act

Government of India Act 1935 curtailed the power concentrated in the hands of the Central Government and distributed it among the decentralized form of government. Separate electorates for women, although they had not asked for it, was quite good for the advancement of women in the decision making process. Even the workers had their separate representation which helped in the advancement of the workers class. This Act was the first attempt to give the provinces an autonomous status by freeing them from external interference. 

Therefore, if the province is making any decision then nobody has got the right to interfere that decision-making and also no one could assist the provinces what to do and what not to do for its subjects. Britishers have introduced this Act because through this Act they can win the support of modern nationalist and they could rule over the dominion of India.

Another reason was that this Act provides voting rights to more people than were given under the Government of India Act, 1919. This Act also proposed to form the federal government that allowed princes to participate in political affairs of India.

Although this Act was not liked by many Indians, its importance was that it paved the way for the independence of India. This Act provided the basis for negotiation between Britishers and Indians for getting independence.

Government of India Act, 1935 and the Indian Constitution 

Constitution of India was the residue of the legacy started by the Government of India Act, 1935. Some features of the Government of India Act that suited well for free India was taken into consideration by the drafters of the Indian Constitution. Features of Federal Legislature and Provincial autonomy was taken from the Government of India Act, 1935. The 1935 Act divided powers between the Centre and the Province which was better for the administration at ground level as well. 

Another feature that had been taken was provincial autonomy. This autonomy worked better for regulating the states or provinces without the interference of external authorities. Also, the states or the provinces knew their people’s condition better than any other external authority.

A Federal Court that was established in 1937 through the Government of India Act, 1935 was considered as the Supreme Court by independent India. The Constitution of India also borrowed the feature that every state should have a Governor who would be elected by the Central Government. Public Service Commission that we see in Article 315 of the Indian Constitution had also been taken from the Government of India Act, 1935.

Conclusion

The Government of India Act, 1935 was the lengthiest Act that was made before the year 1935. It consisted of 321 Sections, 14 Parts, and 10 Schedules. This Act proposed many salient features such as the creation of All India Federation, Provincial Autonomy, provision for safeguards and reservation, etc. 

These features were important for the Britishers but Indian politicians were not happy with these features although some features were adopted by the drafters of the Indian Constitution in free India. The Act of 1935 was a rigid one. It could not be amended or modified by any Indian legislature, either he was Federal or Provincial Legislature. This Act gave nearly 10% of voters the right to vote.

Providing separate electorate to Hindus, Muslims, Sikhs, etc, later on, turned out to be the tools for disintegrating India. Hence, this Act, in reality, did not help in curbing out the difficulties that had arisen in the Government of India Act, 1919. It only showed the dominion of the British Government over the Indians. Only for their benefit, they had introduced this Act. But some of its features benefitted the Indians also.

References 

1. https://dspace.gipe.ac.in/xmlui/bitstream/handle/10973/39712/GIPE-010124-05.pdf?sequence=3&isAllowed=y
2. http://www.open.ac.uk/researchprojects/makingbritain/content/round-table-conferences-1930-1932
3. http://www.open.ac.uk/researchprojects/makingbritain/content/round-table-conferences-1930-1932
4. https://shodhganga.inflibnet.ac.in/bitstream/10603/174777/10/10_chapter%204.pdf
5. https://cadindia.clpr.org.in/historical_constitutions/government_of_india_act_1935_2nd%20August%201935

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This article is written by Dhruv Bhardwaj, a student of Amity Law School, Delhi. In this article, he talks about the Doctrine of Post-Decisional Hearing which comes under the Principles of Natural Justice under Administrative Law.

Introduction

The standards of natural justice have been developed by the Courts to control the activity of the regulation of power with the goal that it doesn’t prompt the discretion of the despot’s ruthless use of power. One of such standards is the guideline of audi alteram partem which necessitates that nobody will be censured unheard and it has gotten its best blossoming in the acknowledgment and implementation of the concept of post-decisional hearing. In the event that in a given case, an earlier hearing would defeat the purpose and reason of the exercise of power, it tends to be abstained from yet should be substituted by post-decisional hearing. 

Right to Hearing

Natural Justice is an ethico-legal idea which depends on natural sentiment of individual. Rules of natural justice have been created with the development of civilisation and the content thereof is often considered as an appropriate proportion of the degree of civilisation and Rule of Law which is predominant in the network. 

It is a very much settled law and there is no contest that the principles of natural justice are relevant to judicial and quasi-judicial capacities however the most significant inquiry is whether these principles are material to administrative activity. Some time ago, courts had taken the view that the principles of natural justice were inapplicable to administrative requests.

In Kishan Chand v. Commissioner of Police, representing the Supreme Court, it was seen that the impulse of hearing before passing the order suggested in the legal saying audi alteram partem applies just to judicial or quasi-judicial procedures however as of late on account of A.K. Kraipak v. Union of India, it was held that up to this point, the Courts were of the supposition that the utilization of the principles of Natural Justice was anything but a statutory obligation except if the body was legally necessary to act as indicated by it. It was additionally held that if the sole reason for the Rules of Natural Justice was to prevent injustice, it did not make a lot of sense about why these principles shouldn’t be connected to Administrative Decisions.

Natural Justice also encompasses Right to Hearing. The purpose behind this is that the right to hearing is a Code of Procedure, and subsequently covers each phase through which an administrative order passes. Right to hearing is a significant defence against maltreatment of administrative power.

Natural Justice is the peer of American “due process.” Notice and opportunity to be heard are essentials of due process of law. In India likewise, significance is spread out to the benchmarks of natural justice under the Constitution. Article 311 of the Constitution stresses on ‘Right to Hearing’ being a basic standard of Natural Justice. In deciding the legitimacy of sensible limitations, Courts have alluded to the guideline of natural justice. The procedural reasonable restriction is equated with the American due process of law.

Principles of Natural Justice are exemplified under Articles 14 and 21 of the Constitution. With the incorporation of ‘due process’ in Article 21 of the Constitution, all that reasonableness which is revered in the principles of natural justice can be seen into Article 21 when an individual is denied of his life and individual freedom. As regarding the other areas, Article 14 embodies the principles of natural justice. 

The position is that Article 14 applies not exclusively to unfair class enactment yet additionally to State activity which is despotic or prejudicial. The reason is that infringement of natural justice brings about arbitrary conduct and all things considered infringement of natural justice is an infringement of the postulate of uniformity consolidated in Article 14. 

In this manner, principles of natural justice are grounded in the Constitution of India. At last, it very well may be said that the skyline of right hearing, regardless of whether as a feature of natural justice, or fairness are continually widening. Procedural fairness coupled with natural justice is to be suggested at whatever point an action affecting the rights of the parties has taken place. 

Audi Alteram Partem

This rule underlines the fact that nobody ought to be censured unheard. In a cultured society it is expected that an individual against whom any action is looked to be taken, or whose privilege and right is at stake, will be given a  chance to defend himself. 

An essential standard of natural justice is that before any move is made, the person affected must be given notice to show cause against the proposed activity and look for his clarification. It is a sine qua non of reasonable hearing. Any order which is passed without a notice goes strictly in contravention of the principles of natural justice and is declared to be void ab initio.

Regardless of whether there is no mention in the enactment about giving of notice, if the request affects negatively, the privileges of an individual, the notice is required to be given. Further it is important that the notice must be clear, explicit and unambiguous and the charges ought not be unclear and questionable. It isn’t sufficient that notice in a given case be given, it must be satisfactory too. The question of sufficiency of notice relies on the certainties and conditions of each case.Moreover, the notice must give a sensible timeframe to agree to the directions referenced in it. Along these lines, to give 24 hours time to disassemble a structure affirmed to be in a broken down condition isn’t appropriate and the notice isn’t substantial. 

The second prerequisite of the audi alteram partem maxim is that the party concerned must be given a chance of being heard before any negative move is made against him.

Meaning of the term Post-Decisional Hearing

Pre-decisional hearing is a hearing managed before making a choice or sanctioning an order. Post-decisional hearing, as opposed to its counterpart, is a hearing given by the adjudicating authority subsequent to making a choice or a decision. 

As a general rule, a hearing should be afforded before a decision is taken by an authority.

In the leading case law Ridge v. Baldwin which is sometimes referred as the be all and end all of Natural Justice, a Constable was accused of conspiracy followed by the prosecution by the authorities but in the end he was held not guilty and was acquitted of blame. While the judge was deciding the matter, certain remarks were made by the judge against the character of the Constable based on which he was expelled from his service. The Court of Appeal held that the committee which had expelled the Constable from his job as a result of the remarks made by the judge against his character, was exercising Administrative and Judicial or Quasi-Judicial power and therefore the Principles of Natural Justice did not fit here. Soon, this decision was reversed by the House of Lords by a 4:1 majority and the order of dismissal was therefore, not upheld. 

Post-Decisional Hearing

The principle of the post-decisional hearing was propounded by the Supreme Court in Maneka Gandhi v. Union of lndia. For this situation, the Supreme Court set out the rule that if in the interest of the general public, quick action was fundamental and it is impractical to manage the cost of a hearing before the decision, it ought to be managed after the decision. The passport of the petitioner who also happened to be a journalist was seized by the Government of India in light of a legitimate concern for public wellbeing. 

The petitioner was not given any chance before making the impugned move. At the point when the legitimacy of the impoundment request was checked, the Government battled that the use of the audi alteram partem rule would have gone against the very reason for seizing the passport. 

Despite the fact that the Supreme Court dismissed the conflict, it acknowledged the principle of post-decisional hearing in instances of outstanding nature. lt set out the recommendation that wherein an emergent circumstance, requiring prompt activity, it is not possible to give prior notice of hearing the preliminary action should be soon followed by a full remedial hearing.

A similar methodology was employed by the Supreme Court in Swadeshi Cotton Mills v. Union of lndia where a void administrative choice was approved by post-decisional hearing. An order assuming control over the administration of an organization by the Government without earlier notice or hearing was held to be bad as it abused the audi alteram partem rule. Be that as it may, the Court approved the impugned order on the grounds that the Government had consented to give post-decisional hearing.

In Liberty Oil Mills v. Union of lndia a request for examination was tested on the ground of contravention with the principles of natural justice. The Supreme Court saw that maybe that the chance to be heard may not be pre-decisional, it might essentially be post-decisional where the danger to be averted is imminent, or the action to be taken can brook no delay. 

In Shepherd v. Union of India, a request was issued to amalgamate certain banks with some Nationalized Banks. Certain representatives of Private Banks were prohibited from working in the Nationalized Banks. Thus, their service was ended without allowing them a chance to be heard. Dismissing the proposition for post-amalgamation hearing, the Supreme Court felt that, “there was no reason to think about a post-decisional hearing.”   

In Trehan V. Union of lndia, a governmental organization issued a circular adjusting prejudicially the terms and conditions of its employees without giving a chance of hearing. The legitimacy of the circular was tested on the ground of infringement of the principles of natural justice. The organization contended that after the censured circular was issued, an open door was given to the employees with respect to the modification made by the circular. Along these lines, a plea of post-decisional hearing was advanced. Dismissing the contention, the Supreme Court noted: “As we would see it, the post-decisional chance of hearing does not buy in to the rules of natural justice. 

The authority who sets out on a post-decisional hearing will ordinarily continue with a shut mind and there is not really any possibility of getting a proper consideration of the representation at such post-decisional hearing.” In Bari Doab Bank V. Union of lndia, the legislature passed the request for bank under Banking Regulations Act, 1949 of the petitioner Bank. It was held by the Supreme Court that applicants were not qualified for pre-decisional hearing before passing a request as post-decisional at the phase of filing issues with the draft plan would be adequate.

The teaching of post-decisional hearing has been given an exceptionally legitimate exposition in Charan Lal v. Union of lndia, which is a case identifying with the Bhopal Gas Disaster (Processing of Claims) Act, 1985. The Supreme Court held that a general rule unique in relation to an absolute rule applying consistently is that where the statute does not reject the rule of pre-decisional hearing but rather ponders over post-decisional hearing which adds up to full review of the benefits of original order, at that point such a resolution would be interpreted so that it bars audi alteram partem rule at the phase of pre-decisional hearing. On the off chance that the rule is quiet on the purpose of giving pre-decisional hearing, at that point administrative activity after post-decisional hearing is legitimate.

It is presented that the below mentioned observations of Sarkaria J in Swadeshi Cotton Mills in regards to pre-decisional and post-decisional hearing must consistently be recollected by each adjudicating. The core of this case was that post-decisional hearing can’t go about as a substitute for pre-decisional hearing. This demonstrates post-decisional hearing is acknowledged and consented to, however it simply should be applied in the appropriate circumstances.

Conclusion

The application of this doctrine does not come with a strait jacketed formula but is rather based on the facts and the situation of the case. In the event where pre-decisional hearing cannot be applied, post-decisional hearing can come to the rescue.

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This article is written by Soma-Mohanty of KIIT School of Law, Bhubaneswar. In this article, she has mentioned the provision of paternity leave in India. She has stated the procedure and eligibility for applying for paternity leave in India. Provisions and benefits of paternity leave in other countries are also mentioned here.

To maintain a healthy work environment, it is the duty of the employers to look after the needs of their employees. In our countrymen and women are treated equally and their equal involvement in building up a family is required. Thus it becomes mandatory for an employee to take leave from the workplace.

This helps them in the execution of their duty towards the family. When the policies for maternal leave is more emphasized than the paternal leave, the question of gender discrimination arises. Both of the parents should have equal rights to spend time with their newborn baby. Thus, many countries are taking steps to improve the policy of paternity leave.

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Paternity leave in India

• In 1961, the Government of India made provisions for working pregnant women known as the Maternity Benefits Act
• Women under this Act are entitled to various benefits, facilities, and incentives.
• But no provision has been laid down in legislation for paternity benefits.
• But the necessity of laying down of provision for paternity leave to maintain a healthy family was seen.
• Thus in 1999, the Central Government of India made provision of paternity leave for Central Government employee under Central Civil Services (Leave) Rule 551 (A). It provides 15 days of leave as paternity leave.
• It is to be provided to employees who have less than two surviving children.
• This leave can be availed for 15 days either before or within 6 months from the date of delivery of the child.
• These provisions are only made for Government servants.
• There is no provision for employees under private sector in this Act.
• Thus the private sectors are free to incorporate their policy of paternity leave and there have been no rules under this Act which would enforce them to work accordingly.

Paternity leave meaning

It is the mentioned period of time, where a father working as an employee under the sector is granted leave from work to take care of the child and spend time with the newborn child.

Paternity leave rules

• According to Paternity Benefit Bill in 2017, all the workers working in both unorganized as well as the private sector, have the right to avail paternity leave of fifteen days. And this period can be extended until a period of three months.
• This bill cited the equal parental benefit to be provided to both mothers as well as father.
• According to the 7th Central Pay Commission provision of leave to be granted to a government employee, during the adoption of a child below the age of 1 year. 

Paternity leave for central employees

According to the provisions laid down by the Central Government in 1999, under Central Civil Services (Leave) Rule 551 (A) are as follows:

• The period to avail leave is 15 days.
• He should be having less than two surviving children.
• The leave for 15days for parental care should be availed within 6months from the date of birth of the child or before.
• If the leave is not availed according to the provision, then there would be the lapse of time and it would be regarded invalid.
• In case of leave, there would be payment of leave salary which is equal to the pay

Paternity leave sanction proceedings

• In India, all the proceeding regarding the sanctions of paternity leave is to be held  before the Metropolitan Magistrate or a Magistrate of the first class 
• They have jurisdiction to try any offence under this Act. 
• But courts lower to them do not have jurisdiction to proceed with the trial.

Paternity leave rules in India for private companies

• There is no law, which enforces the private sectors to provide the said term of paternity leave as stated by the Government for employees working under Government.
• Thus they are free to frame the time period according to their convenience

Paternity leave policy

The leave policy in the following countries are:

The leave policy in the following companies:

Paternity leave policy in India

According to THE PATERNITY BENEFIT BILL, 2017

Applicability

• According to sub-clause 1 of clause 1 of the bill stated above, it applies to each and every part of India
• It can be availed by any employee working in a factory, mine or plantation which is under the Government 
• It can be availed by any person who is self-employed or working for an unorganized organization.
• Any person working in establishments consisting of less than ten employees also can avail leave.
• It also applies to every establishment or shop which in association with shops and establishment in a State comes under the meaning of any law for the time being in force.

Eligibility

• Every man can avail the benefits only if he has worked under the organization for a period of eighty days out of the twelve months and not less than that.
• It can be availed during the delivery of his wife to whom he is legally married or commissioning mother.
• A person who adopts a child can is also eligible for the benefit.

Exemptions

According to The Paternity Benefit  Bill, 2017 rule clause 24

“ If the appropriate Government is satisfied that having regard to an establishment or a class of establishments providing for the grant of benefits which are not less favourable than those provided in this Act, it is necessary so to do, it may, by notification in the Official Gazette, exempt, subject to such conditions and restrictions, if any, as may be specified in the notification, the establishment or class of establishments from the operation of all or any of the provisions of this Act or of any rule made thereunder.”

Exceptions

• When a man has immigrated to the State of Assam, the maximum period of eighty days to avail the benefits is not applied.
• During the period of leave if the man dies, then the employer is bound to provide the benefit of paternity leave for the stated period
• The employee can also be permitted to work from home if there is mutual consent.

Violations and penalties

• If the organization puts forward the notice of dismissal to a man during the period of his leave then it becomes an unlawful act, and it violates the provisions of the bill passed.
• When a person is deprived of the benefits that he is entitled to  under the rules by his employer, then the employer would be penalized with the imprisonment which shall not be less than three months, it can be extended to one year and fine not less than fifty thousand can be imposed and it may exceed to fifty thousand.
• If there is any contravention in the provision laid down in the rules by the employer, then he would be punished with imprisonment which may be more than one year, or fine of at least fifty thousand rupees or both can be imposed
• When the Inspector requires any document in the execution of this Act and the person conceals it and prevent the person to appear for the examination, then he would be punished with imprisonment of one year or it may exceed. He would also be liable to pay the fine that is fifty thousand rupee
• When a person is granted leave under the provision of the rule and works for another establishment during the course of the period, then he would be denied the right to claim the paternity benefit

Complaint

• Any person who is discontented can file a complaint against offense under this rule before any court with competent jurisdiction.
• But after the expiry of one year from the date of commencement of offense, the complaint can not be filed.
• The trial of the offence under this rule can only be tried before the Metropolitan Magistrate or a Magistrate of the first class.

Benefits of universal paid parental leave 

Benefits for family

• Maternal leave allows the mother to spend time with their newborn baby. This helps in building up a healthy family.
• Because of the leave, the mother can feed the baby in time. This helps in the growth of the baby.
• Paternal leave allows the father to connect well with their babies.
• Mother also gets a helping hand, thus it reduces disturbance in the family.
• And in paid leave, both the parents are not worried about their financial position and it reduces depression.

Benefits for organization

• When paid parental leave is provided to the employees, the possibility of their turnover decreases and they tend to work in the company longer.
• The more the facility is provided, the more is the outcome from the employees.
• Their efficiency in work increases, which helps in the development of the company.
• Profit is always mutual, the more you provide the more to get back.
• It reduces absenteeism.
• It helps in maintaining a good work environment
• Leaving a newborn baby back home increases the mental pressure of a mother, thus it would reduce her efficiency in work

Benefits for economy

• When there is paid parental leave, the request for public assistance reduces.
• This induces women to get involved in work-force thus contributing to the development of the economy.
• It reduces the percentile of unemployment
• When people are happy, they contribute more to work. Lesser the family pressure more concentrated they are. Thus it helps them to execute their duty efficiently and thus increase in the economy

Capabilities approach

• This model based on the principles to handle the issue of care as well as equality between the sexes was given by Jeremiah Carter and Martha Nussbaum.
• For maintenance of a decent society, eleven central capabilities are required as proposed by Nussbaum
• According to the model paid paternal leave is one of the resources to be provided to people to start their family.

Income and workforce

• When parental leave is paid, it enhances the labor market with the participation of both men and women before and after the birth of the child.
• It increases the rate of GDP as well as increases national productivity.
• It increases the income of the citizens.
• It puts an effect on the rate of birth, thus helping in future development to be contributed by youngsters.

Challenges

Statistical discrimination

• It is predicted that the cost of hiring women who are pregnant would increase which would amount to a decrease in demand for women in the labor market.
• This was the prediction according to the theory of the neoclassical model of labor markets.
• This model predicts the statistical discrimination against hiring a pregnant woman. Despite of the fact that gender discrimination is illegal.
• Thus to curb this inequality some countries have introduced policies that would increase the rate of paternity leave.

Cost

• The universal paid parental leave can be funded in two different ways. One is publicly funded and the other is private;y funded.
• When the fund is transferred directly to workers on leave in the form of unemployment insurance is said to be publicly funded.
• When is transferred by the corporation in the form of employee benefits is said to be privately funded.
• Private funding arises the problem of statistical discrimination and it increases the cost for the smaller business.
• Public funding is very expensive in nature and it is not that cost-effective in nature.

Criticism

• The reservation of part of parental leave as well as family leave for father by some countries.
• This was implemented on the provision of “Father’s quota”.
• According to this if the father does not avail of those leave, then it can not be transferred to the mother.
• The leave would lapse at the end of the period of time.
• As the rate of participation of women in labor force is increasing, the interest of social scientist, as well as policymakers in providing a hand in an equal division of labor, is also increasing.
• This has been criticized by the critics
• Various research has shown that paternity helps in building a stronger bond between father and child.
• It helps in reducing the wage gap faced by the women during her maternity leave.
• Father also plays an equal role like the mother in the development of the child.
• Some critics have raised the fact that companies do not permit the time of paternity to be allocated to mother instead.
• According to some critics this father,s quota affects the right of a mother. It deprives her of the time needed to be spent with the baby.

Effects

Effects on health and development

• Maternity leave provides time for the mother to breastfeed her child, thus it reduces the chances of infection.
• The mortality rate is lower in the countries where there is effective paternal leave provision.
• Parental leave reduces the frequency of leave as well as decreased regular medical check-ups.
• The mortality rate is directly proportional to the leave rate according to the statistics.
• On the basis of Harvard report on the bonding of children with parents, it was seen that the parents who were on paid parental leave had a strong bonding with their children.

Effects on the economy

• The effect of paid paternal leave on the economy was variable with different views.
• According to the report of Norway in 2016, it was seen that 
• The retention of employees is higher in paid paternal leave.
• Paid paternal leave enhances the income of the family.
• According to the statistics of Western Europe, the mother who is granted maternal leave comes back to work again and they are more focused. Thus, it helps in the economic development of the organization as well as the country.

Effects on gender equality

• Gender equality is promoted in most of the countries through paternal leave provision.
• In terms of unpaid paternity leave, gender inequality arises because it restricts the father to bond with the baby.
• Thus most of the countries provide paid paternal leave to both the parents to eliminate gender inequality.
• While amending parental policies, more focus is shifted towards the improvement of maternal policy rather than paternal policy.
• The difference between gender roles can be eliminated if both parents contribute equally.
• Thus less provision for paternal leave would cause gender equality.
• The Parental Leave Equality Index model was introduced by Carmen Castro-Gracia helped in the prediction of the amount of contribution by both of the parents in paternal care.
• Through this model of Carmen Castro-Gracia, the policies made would stimulate both the parents to put equal effort into taking care of the child

Length of the leave

• There was a change in the policy of France on the parental policy.
• It was done by Joseph, Solaz, Recotillet, and Pailhe.
• It was more focused on long term economy and short term paternal leave that is to be paid.
• In the previous policy back in 2004, it was seen that the working women were granted two months of paternal leave and they can even avail three years of paternal leave which was unpaid.
• Thus most of them preferred taking two months of leave from work.
• But they were granted six months of paid paternal leave with the introduction of the new policy.
• After the implementation of the policy, it was seen that there was an increased efficiency of women in work.
• Most of them joined back to work after the termination of their leave period.
• There was also a change of policy in paternity leave of women in Denmark by Rasmussen.
• He increased the weeks of leave to be granted.
• And the result was fruitful.
• It was found that long term parental leave increased the wages of the women rather than short term leave.

Parental leave policies in united nations

Maternity leave provision

• Every staff is entitled to a leave period of sixteen weeks.
• Pre-delivery leave is granted only after six weeks and 
• It would be granted on the ground of submission of a medical certificate from a qualified practitioner or midwife mentioning the probable date of birth of the baby.
• The staff availing maternity leave would receive full payment for the entire duration of the leave.

Paternity leave provision

• The term of leave granted to every staff is up to four weeks.
• But there is an exception, any staff who is posted internationally then the leave period granted is for eight weeks.
• The staff can avail of leave at his convenience either the whole period or he can divide the period of time.
• The payment to be received during the period is the same.

Countries providing paternity leave

Asia

Which benefits a person gets even when he is on paternity leave 

The situation in case of adoption of a child

• In India, any Government servant can avail paternity leave for a period of 15 days on valid adoption of a child who is below the age of one year from the date of valid adoption.
• In the United Kingdom, when a partner is adopting a child individually then he is granted ordinary paternity leave.
• But when it is done jointly, both of them can not take adoption leave jointly.
• Two or more weeks of continuous leave is provided as paternity leave in adoption.

Latest zomato case

• The CEO of zomato stated that male employees would be entitled to same parental leave as give to female employees i.e. 26 weeks of paid leave.
• It provides an endowment of Rs. 69,000 to both male and female employees on becoming new parents.
• It is also applied in cases of adoption as well as same-sex partners.
• This policy has been introduced to remove the differences between the benefits provided to females as well as an employee.

What to do if you are eligible and you are not getting the benefits?

• When an employee who has been working under the company for a long time and is eligible to take paternity leave in the terms of the period of his employment then he can avail it. 
• But even after the fulfilment of all the criteria he has been prohibited from enjoying the benefits, then he can put the matter forward before the  Grievance Redressal Committee.
• He can even file a suit against the employer if such provisions have been mentioned in the norms of the company and he has been prohibited to avail it.
• In India, the private sectors are free to mandate their provisions for paternal leave. So a person taking the norms of public paternal leave into consideration can not file a suit against the private sectors.
• In Chander Mohan Jain v. N.K Bagrodia Public School case, it was seen that the complainant who was a private school teacher was denied paternity leave and there was a deduction in his salary. Thus, the High Court stated that though there is no legislation against it. But it held that the school being non-aided private school is subjected to entitle paternity leave. Thus it ordered to return the deducted amount to the complainant.

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This article has been written by Shreyas Chandrashekar G. from School of Law, Christ (Deemed to be University), Bangalore, India.

Introduction

An arbitral award refers to the decision of an arbitral tribunal, whether in a domestic or international arbitration, including any interim awards thereunder. In India, enforcement and execution of arbitral awards are governed both by the Arbitration and Conciliation Act, 1996 and the Code of Civil Procedure, 1908. This article aims to look at the manner and procedure by which these arbitral awards, which are passed or laid down outside our territorial limits, are enforced in India. The process for the same is one that is mired in complexities and takes a lot of time to be enforced and as shall be seen below, been muddled by judicial decisions on the matter. 

Frameworks for enforcement of arbitral awards

The primary framework as regards the enforcement of arbitral awards is the 1958 United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, also known as the New York Convention. The Convention facilitates the enforcement of arbitral awards in all the contracting states, that is, those nations which are a party to and are signatories to the Convention, one among which is India. Prior to the New York Convention, enforcement of arbitral awards of another country in the jurisdiction of another State was provided for in the Geneva Protocol on Arbitration Clauses, 1924 as well as the Geneva Convention on the Enforcement of Awards of 1927. 

The laws of India, as a result of India being a signatory to both the New York as well as the Geneva Conventions, have primarily always provided for enforcement, within the local territory of India, of foreign arbitral awards. Examples of these include the laws such as the Arbitration (Protocol and Convention) Act, 1937 and the Foreign Awards (Recognition and Enforcement) Act, 1961 which were in tune with the Geneva and New York Convention, in that they provided for enforcement of foreign arbitral awards in India, provided that the parties have consented to the dispute being settled in the as per the law of the place chosen for the proceeding. However, today, the law that is in force is the Arbitration and Conciliation Act of 1996, enacted both on the UNCITRAL Model Law on Arbitration as well as to revamp and replace the 1937 and 1961 laws on the same. Thus, today, it is the 1996 Act that provides for the enforcement of foreign arbitral awards in India. 

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Further, the Code of Civil Procedure of 1908 does also play in the role in the enforcement of foreign awards in India. The arbitral award has been accorded the status of a decree and thus the procedure that applies to set aside or challenging of a decree applies in equal measure to an arbitral award. 

Enforcement of awards under the Arbitration and Conciliation Act, 1996. 

As the Arbitration and Conciliation Act of 1996 (hereinafter referred to as the ‘Act’), is the prime legislation behind the enforcement of foreign awards, it is essential to understand how the awards are enforced under the Act. One of the declared objectives of the Arbitration and Conciliation Act, 1996 is that every final award is to be enforced in the same manner as the decree of the Indian court would be.

The Act has two parts- Part I and Part II, each of which deal with the enforcement of different type of foreign arbitral awards. Part I, modelled on the UNCITRAL Model Law, provides for the enforcement of arbitral awards that are not covered under the ambit of either the New York or the Geneva Conventions. As laid down by the apex Court, Part I of the Act applies to foreign awards that are governed neither by the New York nor the Geneva Convention. Such enforcement of awards can be challenged in cases wherein the award is contrary to either the fundamental policy or interest of India or is patently illegal. 

Part II of the Act is in tune with the provisions of the New York Convention. As per Section 46 of the Act, the provisions of Part II applies if the arbitral award is in pursuance of arbitration agreement under the Convention and the award is made in those States or in within the territorial limits of such place that has been notified by the Government of India. Such recognition of a foreign State is done through means of a notification by the Government of India that arbitral awards in those places are eligible to be enforced in India with respect to the parties to the agreement. 

However, there are certain circumstances where even if the agreement is one that is valid as per Indian law and meets the requirements, it shall not be enforced on the following grounds if the Court is satisfied that:- 

• Parties to the agreement either are incapable of being parties to the agreement for reasons such as law applicable for the award vis a vis the Indian law.
• Party was not given adequate notice to present his case as regards the arbitration proceedings or the appointment of the arbiter. 
• Award deals with matters beyond the scope of the arbitration agreement. 
• Composition of the Arbitral Authority or Procedure was not in conformity with the agreement of the parties or the law of the land where the arbitration took place.  
• Award is not binding on the parties or has been set aside by a competent authority where the award was made. 

Further, as regards the Geneva Convention. Part II of the Act still contains provisions from the 1937 Act which provide for enforcement of awards under the Geneva Convention, in the same manner, as the New York Convention. 

Procedure for enforcement of awards

 At the outset, it is upon the losing party to object to the arbitral award and file an application for setting it aside. However, if the objections to the award are not sustained or if no objections are filed within the time limit, the award itself becomes enforceable as a decree of the court.

An award can be challenged and set aside only by way of an application under Section 36 of the Act and only the basis of the circumstances listed under it. An application for setting aside an award must be made within three months of receipt of the award by the applicant subject to a further extension of 30 days on sufficient cause being shown. An application beyond this period is time-barred and further delay cannot be condoned. The party, after the expiry of the time for setting aside the arbitral award, as mentioned above, can file an application for execution before the court of the competent jurisdiction for the enforcement of the arbitral award

The different types of awards which are enforceable include Money Award, Award Containing Injunction and a Declaratory Award.  

Jurisdiction 

For the purposes of the Arbitration and Conciliation Act, 1996, ‘court’ means the principal Civil Court having original jurisdiction to decide the question forming the subject matter of the arbitration if the same were a subject matter of a suit. The aggrieved party can, thus, bring its application to set aside the award before the court where the successful party has its office or where the cause of action in whole or in part arose or where the arbitration took place.

Time limit

Any application filed under Section 34 of the Act for setting aside the award must be made within 3 months from receipt of the same. This period can be extended by the court by a further period of 30 days on a sufficient cause being shown, but not thereafter. The court normally allows a wide scope to the meaning of what constitutes ‘sufficient cause’ and if it is convinced of the genuineness of the delay in filing an, the delay is condoned.

Format of application filed before the court

An application is filed before the court of the competent jurisdiction seeking enforceability and execution of the award. The application should state all the important facts and issues framed by the arbitral tribunal and findings of the arbitral tribunal. The claim as awarded should be mentioned and specifically the extent to which the award for enforcement id sought. The documents required for the same, include the original award or authenticated copy of the award as well as an original or duly certified copy of the original arbitration agreement.  

Conclusion

At this juncture, it must be understood that although there exists a procedure for the enforcement of foreign arbitral awards in India, such is not a smooth and efficient one and has come in for severe criticism. One of the main criticisms is the fact that it is not at all possible to be enforced in a quick and speedy manner as the Act stipulates that the award can be enforced only once the time available for the Court to strike down the award has passed. This is extremely inconvenient and one that leads to inordinate delays in the enforcement of arbitration agreements as concerns Indian Parties. Further, the significant role that the Courts play in what is essentially an alternative to the traditional judicial system is also a bone of contention for many.   

To conclude, it can be stated that the Indian Legal System does indeed have a well laid down and established the procedure for the enforcement of foreign awards in India. However, there is a rising need to reform the same in order to make it more business-friendly and lessen the burden on our already overworked judiciary. 

The post Enforcement of Foreign Arbitral Awards in India appeared first on iPleaders.

In this article, Anubhav Pandey, senior editor at iPleaders blog and a regular contributor to various legal websites draws an assertion on how technology is changing the practice of law.

The celebrated writer, Mario Puzo in his book “The Godfather” reiterates the importance of law. A lawyer with a briefcase can steal more than a thousand men with guns. Let me do the much-required addition to the statement made by Puzo.

A lawyer with a briefcase can steal more than a thousand men with guns provided the tools he carries in his briefcase weigh more than bullets in the gun!

The world is an expanding horizon today. Law is expanding with the help of new found technology. Let us understand how technology is changing the practice of law.

Googlite: A new found religion!

Having a legal query? Google it! You might get the answer after few intelligent searches. Google has made things simple and straight. The new found online legal market is gaining popularity. A huge percentage of youth today look for, compare, search, google what they are buying. Not much different is happening in the legal field.

Google has become a source of education, empowerment for many of us. From posting of a legal query to searching on ‘Registration of shops under Shops and Establishment Act(s). How to draft a will, Divorce by mutual consent and what not. Google has made things simple and smooth.

Even legal research. Google has expanded the horizon of online legal research too. Let us keep this discussion under the curtain as this section is dealt in detail in the later part of this article.

Sit back on the couch and file your tax return: Filing services

Gone are the days when ordinary taxpayers solely relied on the lawyer/CA next door for tax or perhaps any filing. Let us dig deeper into this and understand the filing services offered by various online legal platform.

Not one or two but countless service providers providing legal service filing are available today. Few example of filing services are, Registration for Private Limited Company, Limited Liability Partnership, Society Registration, Nidhi Company Registration, Import Export Code Registration and more.

Not only these, making online agreements such as Franchise Agreement, Website Agreement, Rent Agreement, Salee Deed, Will, and many other drafting works requiring legal qualification and knowledge is now done online. These service providers are well equipped with professional and qualified team members.

Want a rent agreement, I might think of using the internet rather than consulting lawyer next door. This is the shift in law brought solely with the help of technology.

Bookshelf with Law Reports: Only for press interview!

I am not changing the fundamental leitmotif or the pet phrase, “Best friend to a lawyer after the judge is his books.” We require books at every platform. Being an active mooter I can assure that many of you will buy this idea. (Personally, I do).

With the advent of technology in the field of law, all the law reports on the shelves are being replaced with online legal databases. SCCONLINE, Manuputra, Westlaw are the change maker in this field. Moreover, now technology has brought a pause to manual fingers licks while turning the pages.

Let us get into a Q&A session. Would you prefer typing the search word instead of turning bulky pages of law reports or not? Do you prefer saving time over everything else (let us keep the purple paper in your wallet out of the discussion’s scope)? Do you want to check twice whether the case you are using is overruled or not?

If the answer to all the above is is affirmation, then yes technology did change the practice of law. Not satisfied with the contention. Let us take an objective look at how the online legal search databases simplified the legal research and made legal research more accessible to all.

Online legal research is more accurate

There was a time once when the veteran lawyers of today relied on Law reports. But we should also understand that the option of using anything else was none. Internship experience of most of us has taught us one fear and this fear is embedded in every practising lawyer. The fear of using an overruled authority (case or statute).

Just a red visible mark, mostly with an exclamation. Sounds more like danger sign, isn’t it? Indeed it is. This is what it looks like, an overruled case or statute. A red sign in online legal research databases. This is just an example. Using a keyword to find relevant cases saves a lot of time.

Time Saver

The first lesson taught in any Legal Research Methods classroom. Online legal research saves time compared to going through law reports. This sounds relevant not only in theory but also in practice.

Cost effective

Buying physical law reporter is anytime more costly than buying subscription for online legal research databases. Moreover, online legal databases not only is restricted to case laws, they have valuable articles, opinions and many extending features which help you all throughout your practical life.

My intention is not to discourage the use of books in the legal profession. The section above is a mere comparison of the two ends, the offline legal research method, and the online legal research method. Knowledge, passion and the love for the law is the connecting bridge of these two ends.

Technology has evolved the very idea of ‘access to justice.’

The client’s of access to justice has moved me since the first day of my law school. Earlier, having proper access to court proceedings was considered to be enough for access to justice. But realising the importance of technology today, the former mentioned is just an important part of the overall mechanism.

Having proper access to legal materials, to know the law at the click of the mouse. This is what constitutes access to justice. Letting the people know of their rights is access to justice. Being up to date with the latest happenings of law is access to justice. This has only been possible through the evolving technology.

Legal blogs

Nowadays, legal blogs are among one of the highest paid specialized blogging niches. The reason for legal blogs acquiring a great spot in Google Adsense list is the interest of the viewers. Cpc or commonly know as the Cost-per-Click (all the learner of law, take a deep breath. Cpc here is not Civil Procedure Code) is the money Google (through the advertisers) will pay you with a single click by a user. Let us not get into the technicality and understand the example by a simple objective fact.

An article on CPC (Civil Procedure Code) might get you an add which is worth INR 36.66 per click. Surprising, isn’t it? Wait, I have got more in store. Does the idea of Murder motivate you? Do not charge me with abetment. I am talking of Section 300 of the Indian Penal Code. Writing an article on Murder can bring you INR 24.85 per click. I hope the statistics given helped you in understanding how technology is shifting the very idea of using law.

I hope the statistics given helped you in understanding how technology is shifting the very idea of using law as a source of online income.  

A prominent player in the field of online legal blogging is iPleaders. Being India’s most read legal blog, we make it a point that law reaches the doorsteps of every ordinary citizen.

Technology has brought pace to court proceeding

Indian Courts are techno savvy now. All the High Court and the Supreme Court functions through their server. Every case update or any other related information is available within a click.

Let us understand this from a clients perspective. Now, the clients are not supposed to make frequent visits to the Court’s premises asking for where to find the appropriate office for case updates. All thanks to technology. This is how technology is changing the practice of law.

Filing of PIL

Do you care for the society? Want to file a case in public interest? Drop a mail at the email id of the High Court or Supreme Court. Although not considered as a good alternative to case filing with proper court procedure, you can file a PIL with any High Courts or the Supreme Court by simply sending an email that reaches the chief justice, or a letter by snail mail addressed to the chief justice, or even by sending postcard.

Law is not the same flavored tea found till the late 90s. Now the pack comes with tea leaves of different flavours served both hot and cold!

Technology has changed the complete practice of law. Law found till the late 90s have evolved to a new sphere today. One can learn about court craft, learn any legal topic law online. The horizon is still expanding and the future is even brighter than what it is today.

From searching of a case to the reading of books. Screen is replacing paper at a speedy rate. This has brought ease to work, saves time, money, energy and resources. From all these perspective one can easily claim that technology is changing the practice of law.

Online Legal Education

Want to learn the intricacies of drafting a contract? Interested in knowing the know-hows of M&A? Enrolling in a full-time law University is not important today for this. There are many occasions where a CA feels he should have the fundamental knowledge of drafting of a contract. Transforming the said words into action, players are already producing results in the field of online legal education.

National University of Juridical Sciences, Kolkata, a premier law university constantly ranked among top three in India, offers cutting edge online courses focussed on practical aspects of law. Courses are pursued by CEOs, Managers, Entrepreneurs, Accountants, General Counsels, Corporate Lawyers, Civil and Criminal Litigators, Government Officials and Students from all disciplines.

Imagine how it would be if you could navigate the usual legal and regulatory mess with ease, and make better decisions as you scale your business or career growth. Regulatory and legal difficulties is a huge hurdle to doing business in India, and very few people have mastery over it. Online legal courses provide an additional touch of magic to your growth.

Let us understand that moving with time is the need for today. The justice sytem of the country is lagging behind. Courts are flodded with pending cases, litigants are struggling hard to achieve the deserved end of justice. Let us utilize the advantage provided to us by the technological advancement in law. Let us increase the weight of files in the briefcase, bullets in the gun will automatically start to weigh down.

The post How is Techology changing the practice of law? appeared first on iPleaders.

This article is written by Asgar Ali, pursuing a Diploma in Industrial and Labour Laws from LawSikho.com. Here he discusses “How to Demonstrate Compliance with the Standing Orders Act in case of an Inquiry or Investigation”.

Introduction

Standing Orders of any establishment describe the condition of recruitment, staffing of workers, discharge of their duties, Attendance, details of leaves and holidays, short leave, etc which express the working conditions. Standing orders also express the disciplinary actions like suspension /dismissal in case of misconduct is observed, thus to minimize conflict between the management and workers in work-related activities, hence a Model Standing order helpful in avoiding certain Industrial disputes. 

The Industrial Employment (Standing Orders) Act in an Industrial establishment entails its employer to define the working conditions of employment clearly by issuing a model standing order which is duly certified by the appropriate government.

Applicability 

This Act is applicable to any industrial establishment in which one hundred or more than one Hundred workers are in employment or were working on any of the days during the previous 12 months.

A Model standing order which is issued under the Act deals with the categorization of workmen as per their trade/work, payment of wages to workers, their leaves detail, holidays, Working shifts, Recruitment and termination procedure, etc.

In a significant judgment on gender justice, the Honorable Supreme Court has ordered that employers should also include in their Standing Orders the strict prohibitions on sexual harassment of employees and appropriate penalties should be imposed against the offending employees as per procedure laid down under Standing order.

The content of a Standing Order after it is finally certified under the Act, shall be displayed by employer at prominent places either in English or in the language understood by the majority of workers working in that establishment (sometimes in English, Hindi and Local language being understood by the majority of workers)  on particular Notice boards which shall be maintained properly. The display area can be any that place in the workplace where the majority of the workmen enter/assemble (like time office/ Main gate area/ Nearby Entry /Exit gate etc.) in that industrial establishment or it may be displayed in all those departments wherein the workers are in work.

Objectives

1. To bring uniformity in the working conditions or conditions of services under different employers in different organization.
2. To bind the employer that he cannot change work conditions of employment (once it is written and approved by an appropriate government) to workers’ detriment or to the prejudice of their basic rights and interests. Hence, cannot be minimized or exaggerated by the employer at his choice.
3. To communicate the conditions of employment in written form which is helpful to get understood to any of workers having interest in that organization and hence it becomes an opportunity to a prospective worker to either accept them or join the industrial establishment or to take a clear decision as per his employment need.
4. Compliance under this act is helpful in this way (i.e. for maintaining work harmony and continuous improvement. Hence, minimize conflict between the management and workers and helpful in avoiding certain Industrial disputes.

An Inquiry or an Investigation

For the uninterrupted execution of any establishment or industry, the defined policies showing Code of Conduct, work discipline, Service contracts, Job agreements, and standing orders must comply 

In case, an employee is not complying with stipulated codes of conduct, he is liable to face disciplinary actions initiated by concerned Management according to their Standing Order.

This procedure is called as Investigation/ Internal Inquiry/ Departmental investigation etc and it is conducted in accordance with the standing order specified by that management.

Inquiry/investigation means

(a) Examination/hearing of the Case

(b) Collecting Evidence and Recording it

(c) Compiling relevant documents on which the finding are based, to reduce in righting the report,

Based on the above description, About an Investigation or an Inquiry, it is understood that the word “Investigation or Inquiry” is mostly the charges of indiscipline and misconduct by an employee. In Simple words, an investigation or an Inquiry means any departmental Inquiry in which the matter is decided by concerned administrative In-charge and not by the courts of law.

There is a limitation for a commercial work that a public servant holds protection provided in Constitution of India as per Article 311, But No such provision available for any industrial worker. Even the Public Servants Enquiries Act 1850 is also silent in such matters. 

Compliance with the Standing Orders Act in case of an Inquiry or Investigation

Investigation or Inquiry is like a trial in a court of law, but whilst any trial in a court is for an offense carried out against society, an Investigation or an Inquiry is conducted for that wrongdoing committed against the establishment and shall be punishable under the standing orders, rules, regulations of that organization.

Under Industrial Disputes Act or other substantive laws for example Factories act 1948, Indian Mines Act, etc, Investigation/Inquiry is not taken as or considered as a legal requirement, but there is a provision under  Standing Orders to frame it in “Industrial Employment (Standing Order ) Act, 1946”. Consequently, now at present, it is well-established that such standing orders contains the Legal Power and thus, constitute the legal terms of services/ employment.

To discharge any employee, to terminate his services without holding a fair Investigation leads to the violation of principles of natural justice and such matters can be taken into notice of Industrial Tribunal or Labour Courts and it can result into punitive actions against the employer for not holding a fair Investigation or fair Inquiry, because, any dismissal without holding an Investigation or a fair Inquiry is considered as illegal in the eyes of labour court.

Click Above

Principles of Investigation or Inquiry

1. There must be a fair investigation and rule of Natural Justice must be complied. 
2. The person charged for allegations must be heard and He should be called for his clarification and presenting evidence in his support.
3. Don’t examine any witness in the absence of the accused employee.
4. Cross-examine shall be done by constituted investigation committee (like ICC in case charge of sexual harassment).
5. The inquiry must be as per Standing order compliance and secrecy must be maintained. 
6. The whole inquiry must be conducted and completed in a stipulated time period. 
7. The Inquiry Officer should be free to allow or disallow any evidence, but shall reduce it in writing, 
8. Decisions must be taken jointly by members of the investigation committee and it shall be written in the prescribed format as per standing order.

Investigation or Inquiry Process

Fact-Finding Inquiry

When concerned management observes that any act of misconduct has been committed by his employee, then they shall do immediate Inquiry into the matter. Such an Inquiry may be termed as Fact-Finding Inquiry. 

In such a situation, the offender/wrongdoer may also be summoned and questioned during the Inquiry. The aim is to reach over a conclusion if a prima facie case exists for taking disciplinary action against that concerned workman or not. If during preliminary Inquiry, the management finds out that an act of misconduct has been committed by concerned, then the charge sheet shall be issued.

Honorable Supreme Court in Case of M/s Powari Tea Estate Vs. M.K. Barktaki ( of 1965 II LLJ 102), held that the accusation should not contain any appearance which may give rise to any sensible apprehension in the mind of the worker against whom the Inquiry is held that the management board has already concluded him guilty.

Charge Sheet

Charge Sheet is a written statement issued to delinquent (accused) with an accusation made against him (an employee) in respect of an offense supposed to have been committed by him. 

The charge sheet is not considered as a record of evidence. The person in charge, who is signing that charge sheet, is not a party (plaintiff, etc.). He is not held responsible for the truthfulness of the facts specified in that charge sheet. He simply can inform to the accused about what are the charges against him (Refer Case law of  Bennet Coleman & Co. LAC page 2 1956)

In the charge sheet, the details of misconduct committed the date and time when it was committed and the relevant section of associated Standing orders under which the misbehavior falls must be clearly mentioned. 

The charge sheet must be specific and it should be asked to the delinquent to present his explanation within a given / reasonable time that is within 24 hours, 48 hours or by so and so date depending on the seriousness of the misconduct. 

Sometimes, there may be a situation when an employee commits an act of misconduct and it does not fall under the mentioned list of misconducts in the standing orders. Even, sometimes, the employer is at authorization to take appropriate disciplinary action for the sake of discipline and proper order in his organization, but the matter requires to be dealt in a sensible manner and in a logical way.

A charge sheet is required to be signed by an officer having authority and should be competent to sign it which may usually be a Disciplinary Authority who has been delegated right impose punishment.

It is important that a charge sheet is required to be carefully drafted and properly provided to a person charged (To whom it is intended to be delivered/ served).

Following particulars are required to be mentioned in a charge sheet

• Full Name of the worker ( to be charged )

• Employee Code

• Address Detail 

• Date / shift, Time, area/ Place of incident 

• Details of event/misconduct charged

• Appropriate sections/ clause and detail of misconduct under the prescribed standing orders. 

• Summon by Management for an explanation by the charged employee within a predetermined time

• Enclosed copy associated to charge sheet, if any.

Where an employee declines to accept a charge sheet, the same can be understood as misconduct and it is optional that another charge sheet is issued and the Inquiry is placed on first as well as on second charge sheet. In most of the organizations, it is specifically mentioned in their standing orders that “refusal to receive the charge sheet or related communication” shall be understood as misconduct.

Evidence: In General, Evidence consists of oral statements of witnesses, written documents and various those other subjects which are perceptible by the senses.

Proof: Proof is the procedure of presenting/ submitting evidence before the court or any judicial body. The intention of proof is to assist the court in facts finding. 

Additional prominent Points

Ex-Parte: Even after reasonable opportunity has been provided to the employee to defend himself, but he shows his no availability and procrastinate to be presented himself before Inquiry committee, the Presenting Officer, then will present his case by presenting witnesses and presenting documents in the normal manner.

However, there will be no cross-examination, because the defense is not in attendance. Then the Inquiry Officer shall record all such proceedings as mentioned above and shall proceed on the merits of the case.

Appeal: A worker can appeal to the Appellate authority against the judgment of the Disciplinary  Committee, but it is required to be done within the prescribed time period. Then Appellate Authority may give a personal hearing to the employee if it is required by him in case of his dismissal/removal from office. The punishment awarded by the Disciplinary Authority can be retained or reduced but cannot be enhanced by the Appellate Authority. The appellate authority must settle the appeal request within a stipulated time.

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

The post How to Demonstrate Compliance with the Standing Orders Act in case of an Inquiry or Investigation appeared first on iPleaders.

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

A book can change your life. But not all books.

One book that changed my life was Harry Potter and Goblet of Fire. How is that possible? I will tell you.

I was a voracious reader as a child. The word bookworm was created for me. Why book, I would even read what is written behind every shampoo bottle, food packet or even a wrapper I could pick up from the road. 

I wanted to read everything and know everything.

Most of the books I bought as a kid would cost Rs 20 or 30. The stores near my school started stocking up on story books because I will come and buy. Also my classmates influenced by me started buying story books. 

Those books built a reading habit. I read a lot of translations of classical European literature. I now realise that a lot of my character was built thanks to reading those books.

But still those books didn’t change my life.

At the age of 14, I read in a Bengali newspaper about Harry Potter and the Goblet of Fire. Apparently, it was the highest selling book in the world at the time, and I decided I had to read it.

I convinced my dad to buy it. He asked me how much it would cost. I had no idea. We decided to go to college street, a famous place in Kolkata where there are thousands of bookshops and you can get any book you want. 

Once we arrived there, at our standard shop, they told us they don’t have the book but will get in a jiffy. And when it came, the price was Rs. 800 and something.

We were shocked. How can a book cost this much? 

I was crestfallen. I looked at my father to see what he will do.

He took out his wallet and bought it. He just bought it.

My father used to earn about 10,000 per month if I am right. But he bought me a book worth 800 because I really wanted it.

I don’t always give enough credit to my father for who I have become.

But anyway, once I got home, I started reading the book. It was very difficult to read. I could not understand most of the words. A lot of sentences I could only guess the meaning of. However, I could get a part of the story. But by the time I finished reading the first chapter, I wanted to read more.

It took me hours to read the first chapter though, and that was about 30 pages from what I remember. 

Next day I bunked school to read more. It took me a week to finish the book because I had to read really slowly, guessing words and their meaning.

Say the word yell. I didn’t know it. But when I read it many times in the book, I began to pick up what it could possibly mean. Same for grin. Or gritting one’s teeth.

In the next two years, I read this same book a total of 30 times. It was a very rewarding experience. Every time I read it, I could learn new words and understand new parts of the story that I didn’t understand earlier.

And my English drastically improved. I became the guy in school (vernacular medium – Bengali) who had apparently formidable knowledge of English.

The first breakthrough in my English knowledge was because my dad bought me a very expensive book he wasn’t even sure I will read. And I created a world out of it.

Would I make it into an NLU if he didn’t buy me a Harry Potter book that day? I am not sure. That step was a critical turning point.

Could he predict that I will squeeze so much juice out of that investment? I don’t think so.

But he trusted me.

I hope you trust your loved ones, or yourself, when it comes to making such investments. Your destiny is beckoning. Don’t hesitate.

Here are some courses I want you to consider, which have had far reaching impact on the careers of thousands of lawyers: 

Diploma 

Diploma in Companies Act, Corporate Governance and SEBI Regulations 

Executive Certificate Courses

Certificate Course in Real Estate Laws 

Certificate Course in Arbitration: Strategy, Procedure and Drafting 

Certificate Course in Legal Practice Development and Management 

Test Preparation

Judgment Writing and Drafting Course for Judicial Services

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