The article is written by Raj Shekhar, who is a 1st Year Student pursuing his BA LL.B from
National University of Study and Research in Law, Ranchi. The article speaks about Sham
Contracts and Zero Hour Contracts.

Abstract

The Indian Contract Act 1872, incorporates various types of contracts like indemnity,     bailment and pledge. It also deals with representative contracts such as agency and partnership. But, despite being so exhaustive there are certain barricades to a contract. Such as, it fails to deal with sham contracts and zero hour contracts. The Indian Contract Act was enforced in 1872, from there on the situations have changed drastically. Law being dynamic in nature, it has to evolve accordingly, as said in “The Doctrine of Living Tree”. Thus, it is the dire need of the hour to discuss and check the viability of these contracts. This research paper objects to make the concepts of these contracts clearer. It aims to show the intricacies and deal with all the nuances of the contract. The paper tries to contemplate the sham contracts and give a critical analysis while adhering to the present scenario of our country.

Introduction

There is always a tussle that whether the person employed is an employee or a contractor. The reason behind this is that there is no hard and fast rule to test this. The issue mainly arises where there is an unfair dismissal or the dismay of the wages, it is also seen in the case of compensation, where a person is entitled to receive compensation. The very purpose of such contracts is to protect the vulnerable workers from economic duress and the collection of taxes.To understand this, we must understand the fact that, a contract of employment is radically different from a purchase of a chocolate. There is a heated argument that to what extent the validity should apply in the contract of employment, particularly in “Sham” self employment.

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What is a Sham Contract

The Sham Contracts was defined in the leading case of “Snook v. London & West Riding Investment Ltd[1]” as the contracts whose as those agreements whose terms were ‘not quite the same as the real legitimate rights and obligations (assuming any) which the parties expect to make. If interpreted the other way the sham agreements are those in which the written agreement does not reflect the de facto agreement made by the parties. The employer treats the party as an independent contractor when his relationship is actually that of an employee.

In the famous case of “Autoclenz v. Benchler” [2]where the claimants worked as the car attendant for the Autobenz company, which stated that they were independent contractors. They had to pay their own taxes and the national insurance. They signed a contract for substitution that allowed them to engage other people on their behalf. The court decided that the clause didn’t reflect the true nature of their agreement and it was a Sham agreement.

Sham Contracts are usually to place the employer in advantageous situation. It shifts the responsibility and cost to employees. It also provides the employers an undue advantage over the legitimate workers and those making the use of bona fide contracting. The main benefits of the Sham Contract are as follows:

• Less tax
• No work cover levies
• No employment liabilities such as
• Long service leave
• Superannuation
• Flexibility

It is needless to say but there are certain benefits that are enjoyed by the employee as well while entering into the sham agreements, like charging an excessive hourly rate to compensate the losses like superannuation and other benefits.

To know the differences between an employee and an independent contractor the table has been annexed at the end of the research paper.

The intention in Sham Contract

To constitute a Sham Contract there must be a valid intention. As said by Justice Diplock in “Yorkshire Railway Wagon Co v. Maclure and Stoneleigh Finance Ltd. v Phillips”[3], that for acts or documents to be a “sham”, with whatever legal consequences follow from this, all the parties thereto must have a common intention that the acts or documentsdo not create the legal rights and obligations which they appear to create. No unexpressed intentions of a “shammer” affect the rights of a party whom he deceived.

The same principle was taken into consideration in the case of “Midland Bank Plc v. Wyatt”[4], also seen as rainy day agreement case. In this it was held that the declaration of trust was not what it purported to be but pretence or, as it is sometimes referred to, a “sham”.

There are certain guidelines to check whether the contract is a sham contract or not:

• Though transaction of sham can be considered as a serious allegation, but, it is not necessary to prove a fraudulent motive.
• ‘Sham’ exchange influences the privileges of a third party the ‘shammer’ can’t depend on the sham exchange unless the outsider is likewise a party to the sham. The ‘shammer’ is generally estopped by his lead from so depending on the sham exchange.
• In like manner, it isn’t fundamental in each case that every one of the parties to the sham must have a typical intrigue; a sham exchange will at present remain a sham transaction regardless of whether one of the parties to it only obliged the ‘shammer’ not either knowing or thinking about what he or she was signing.
• In deciding the idea of the exchange being referred to, the ensuing history of the respondent’s dealings with the property is applicable; the court’s thought isn’t kept to lead at the season of making the understanding or instantly from there on. At the end of the day, the court is qualified for take a gander at the way the property has been managed after the indicated exchange.

Instances of Sham Contracts

• Property (house or business share) transferred to the relative by the debtor, which was never followed upon but kept in hand for a rainy day.[5]
• To improve the condition of the insolvent on insolvency enabling the insolvent to continue to occupy; “Vooght v. Hoath”[6]

Some instances that is not proof of sham

• Ulterior purposes
• Dishonesty
• Artificially
• Sloppiness of the execution
• General Disapproval of the court

As it was contended in the case of “Miles v. Bull”[7], that an agreement doesn’t turns out to be a sham, just for the sake that it had a specific purpose behind it. The thing done genuinely holds well, even if it has an ulterior motive behind it.

The court cannot dismiss the legal and actual intention as shams just because they are not liked. Besides, the court cannot compare a license to a sham just for the reason that the court think the parties ought to have a tenancy.[8]

Burden of Proof

As it was seen in the case of “National Westminster Bank plc v. Jones”[9] it was held that sham is accompanied by dishonesty, and the fact that there is an involvement of the third party who may rely on the smartness of a provision. There is a strong presumption against holding a contract as a Sham.

A sham is a falsification; it includes a finding that the genuine agreement between the parties is an option that is other than that which shows up on the substance of the reports. Sham isn’t the same as fraud (eg the fabrication of an exchange report) however it will regularly include a component of dishonesty. In the case of “Vooght v. Hoath”[10]the court said that the agreement was not fraud but a sham contract.

For all intents and purposes the greater part of the evidence was altogether reliable with the record not being honest to goodness and conflicting with it being bona fide. In the event that it were in any case held that fraud had not been set up in those conditions, it would put a deplorable burden on the party charging that the record was along these lines fabricated and back dated, since the Court would not find that a report with a particular date was in certainty executed a while later unless it could be set up through the evidence of one of the parties to the archive or a witness

Thus, in a nutshell it can be said that the burden of proof lies on the party who alleges the contract to be sham.

Misrepresentation and Sham Contracts

Section 357 of the Fair Work Act forbids an employer from misrepresenting that an employment contract under which an employee is or would be utilized is a contract for administrations. However sub-section (2) gives that if the employer can demonstrate that they ‘did not know or were not rash in the matter of whether’ the contract was a contract of employment, the preclusion does not have any significant bearing. Under this arrangement evidence with regards to the employer’s perspective turns into a basic factor in deciding if a break has happened. The extent of this guard and its hugeness was uncovered for a situation taken by the CFMEU under the equal arrangements of the Workplace Relations Act. In spite of the fact that the wording has modified somewhat under the FW Act, the choice in that issue made it clear that the special case in the FW Act is so wide as to make the arrangements relatively useless. In CFMEU v Nubrick Pty Ltd43 the employer, an extensive and very much resourced company, effectively depended on the protection by demonstrating that at the season of the portrayals, they didn’t know or were not foolhardy with respect to whether the contracts being referred to were contracts of employment. It appears that based on this choice and the present wording of the FW Act, if an employer can demonstrate for instance that they didn’t turn their brain to the lawful qualification between a contractor and employee, they can’t be observed to be in break of the sections. This implies the less information of the lawful refinements between contractor and employee and the less consideration given to the issue, the more likely the employer is able to raise a successful defence.

Sham Contracts in India

Though not discussed much in India there have been several cases where it was contended that the contract is a sham or not. The basic understanding that we can derive out from the sham contracts is that; if the employer is employing and handling the Contract Labour through its own employee posing as a contractor, then the employer, without increasing the actual number of employees is controlling the contract labour

The validity of Sham Contract was laid down in the case of “Indian Petrochemicals Ltd.v. Sharmika Sena”[11]. It says that these contracts are void, bogus and therefore needs to be set aside.

In the famous case of “The Management of Bokaro Steel v. Workmen, Represented by Bokaro”[12].It was contended that whether the contract between the management and the worker association is a sham contract or not. It was held that there was no prior invites by the management for carrying out the maintenance of machines, appears to be misconceived and the same cannot be accepted as a reason to declare the contract as Sham.

In another case “Haryana State Electricity Boardv. Suresh & others”[13]it was held that since there was a considerable control over the control of the workers, the contract between them was a sham contract. Thu, the board was supposed to pay money to the respondents.

As we can see there aren’t plethoras of cases, when it comes to the context of Sham contracts, in India.

Conclusion

The main objectives of research paper have been successfully dealt with. The concept of sham contract is much prevalent in the other countries than our country. The reason behind is the efficiency of labor law, which protect the rights of the labors. When we come to the context of India, the rate of unemployment is quite high. So, in the case of sham contracts where an employee is treated as an Independent Contractor, it does results in the hike of unemployment. It is the need of the hour to be a bit stringent over these laws as, a better place for employee will result in the economical development of our country.

Endnotes

[1] [1967] 2 QB 786

[2] [2011] UKSC 41

[3] [1967] 2 QB 786

[4] [1997] 1 BCLC 242

[5]  Footnote 4, supra

[6] [2001] EWCA Civ 1136

[7] [1969] 1 QB 258

[8] Donald v Baldwyn [1953] NZLR 313

[9] [2000] BPIR 1092

[10] Footnote 6, Supra

[11] [1999 (6) SCC 439]

[12] 2010 Indlaw JHKD 128 

[13]  1999 LLR 924 (SC)

The post Sham contracts: Employment under the veil appeared first on iPleaders.

This article is written by Gaurav Raj Grover.

Sedition meaning

Sedition simply means to encourage people to oppose the government or authority. When a person promotes hatred towards the government which results in people creating public disorder or violence is sedition. When an act promotes disaffection towards the government, the act is referred to be seditious. Sedition in its simplest meaning is any act or speech that leads to insurrection against the State. 

There are different ways of sedition:

• Words (spoken or written)
• Visual representations such as signs, videos, pictures or cartoons. 

A person causes violence or he encourages other people to create violence are the essentials of sedition. An attempt to make people disobey or resist the government in any way through acts of public disorder or violence can be an act of sedition. 

For example, the owner of an industry can commit sedition by conducting a meeting with the employees to spread public nuisance to oppose the government or the laws or actions of the government.

History of Sedition Law in India

It all started when Macaulay, a famous British historian and Whig politician drafted Penal Code, 1837 of which Section 113 which is similar to Section 124A of IPC. The punishment was life imprisonment.

Afterwards, Sir John Romilly who was the Chairman of Second Pre-Independence Law Commission suggested to change the punishment for sedition as maximum punishment for sedition in England is 3 years and he proposed that in India, it should not be more than five years. Surprisingly, sedition was not included in IPC at first, it was later included as an offence under Section 124A through Special Act XVII of 1870. It was implemented to protect freedom of speech and expression from the strict common law of England. People were allowed to criticize the government until they show their willingness to obey the law, people showing an exciting feeling of disaffection and creating problems towards the government must be punished. 

An amendment in 1898 changed Section 124A by adding “bringing or attempting to bring in hatred or contempt towards the government established by law is punishable” which was later amended by Act no. 26 of 1955 which substitutes the punishment as ‘imprisonment for life and/or with fine or imprisonment for three years and/or with fine’. 

In order to prevent public meetings against the British Government, the Westminster Parliament started the Prevention of Seditious Meetings Act, 1907 to reduce the disturbance created by people because of the public meetings. 

Pre-Constitutional Era

Before the Constitution, Section 124A was used to forcibly put an end to any political argument even if it’s right. Under the sedition provision, the British Government tortured many Nationalist Politicians, journalists and press owners as well as writers and poets.

• In the case of Journalist Jogendra Chandra Bose, he was charged with sedition for criticising the Age of Consent Bill and negative economic impact of British Colonialism. During the case, the Court acknowledged that there is a difference between English Law and Section 124A of IPC. Section 124A of IPC was milder than that of sedition in English Law. The seditious feeling was penalised in English Law. 

It was concluded that Section 124A of IPC only penalised disaffection but not disapprobation. There was no verdict as the jury did not come with a unanimous decision. Further, the case was withdrawn when Bose apologised.

• In the case of Queen-Empress v. Bal Gangadhar Tilak, Tilak was accused of sedition for publishing an article in the newspaper about the Maratha warrior Shivaji encouraging his move against the British Government. Interpretation of ‘disaffection’ was given through this case. 

Disaffection means hatred, dislike, hostility, contempt and every form of ill will to the government. ‘Disloyalty’ can be the most related term collecting every possible form of bad feelings for the government. 

The judgement of the case leads to the 1989 amendment to Section 124A of IPC and the interpretation gave disloyalty and feelings of enmity to sedition.

• Queen-Empress v. Ramchandra Narayan and Queen-Empress v. Amba Prasad followed the steps of the Tilak judgement.

In the case of Ramchandra Narayan, it was justified that any attempt to excite feelings of disaffection to the government is equal to an attempt to spread hatred towards the government established by law by creating political discomfort and making the people not to show their compliance towards the government. 

Amba Prasad was in a similar situation when she published an article in a newspaper called ‘Jamu-ul-ulam’. With the help of the precious judgements and interpretation of disaffection, the Court concluded that any disapprobation will only be protected as free speech if it did not lead to disloyalty or not opposing the power of the authority of the state. 

Disapprobation is acceptable when the person respects the lawful authority of the government and doesn’t undermine or resists the lawful nature of the government. The Court said that it is not compulsory that every action starts an actual rebellion or creates disturbance towards the government. So there must be a proper hearing to find out about the act that it actually induces any course of forcible resistance towards the government.

The second interpretation helped in protecting the fair and honest criticism of the policies of the government. After these cases and different interpretation of disaffection, the legislature introduced a third explanation of Section 124A to make the law more precise and also to remove any further misconceptions in interpreting the Section. While the British Government didn’t want to grant freedom of expression to the people and they didn’t want to limit the scope of sedition.

British Government started declaring the Communist Party of India, other trade unions and labour organisations illegal and seditious to completely end freedom of speech and expression in India.

• In the case of Kamal Krishna Sircar v. Emperor, the Court refused to conclude the speech given by him against the Government as sedition.

The Court held that suggesting some other form of government is not equal to bringing the present government into hatred or contempt. They both are completely different things. Which means writing speeches of this kind are not seditious. This case showed that the British Government were using sedition to suppress any kind of criticism towards them.

• In the case of Niharendu Dutt Majumdar v. King-Emperor, the Court shifted from the interpretation of Section 124A in Tilak’s case, the Court concluded that sedition is directly concerned with disturbance in public order and unless the speech creates a disturbance, it can not be called seditious. The Court held Majumdar not guilty and stated that all unpleasant words can not be considered as ‘actionable’. 
• In the case of King-Emperor v. Sadashiv Narayan Bhalerao, the definition of sedition was overruled. The meaning of ‘public order’ was not considered while the literal interpretation from Tilak and later from Ramchandra and Amba Prasad was upheld. 

Constituent Assembly Debates

Sedition provides a restriction on the freedom of speech and expression, which was Article 13 of the first draft of the Indian Constitution. So, sedition was seriously opposed by the Constituent Assembly. Sedition was a reminder of the British Rule which should not be present in Independent India. The complete Constituent Assembly agreed together to delete ‘sedition’ from the Constitution. There were many discussions during the debate.

• Shri M. Ananthasayanam Ayyangar said that it is a fundamental right of every citizen in the country to overthrow the government without violence, it can be achieved by persuading people, exposing their faults in the administration, their method of working and so on. Due to these reasons, the assembly agreed to remove the word ‘sedition’ but in situations when an entire state is about to get thrown or undermined through any force which causes public disorder is an offence.
• Shri K M Munshi said that sedition is an offence because government and law must be respected and obeyed, to avoid chaos and lawlessness. Public disorder or the willingness to create public disorder is the soul of the offence. 

Intense debates and unanimous decision of the Constituent Assembly removed the word ‘sedition’ from the constitution. 

Post Constitutional Development

Sedition was unacceptable to the drafters of the Constitution as a restriction on the freedom of speech and expression but it was present in Section 124A of IPC. There were many conflicts and decisions on sedition after Independence.

• In the case of Romesh Thapar v. the State of Madras, the Supreme Court declared that there is no restriction fall under Article 19(2) on freedom of speech and expression unless there are chances of public disorder or trying to overthrow the government. 
• In the case of Tara Singh Gopi Chand v. The State, the Punjab High Court stated that Section 124A is unconstitutional as it violates the freedom of speech and expression mentioned under Article 19 (1) (a) of the Constitution.
• In the case of Ram Nandan v. State of Uttar Pradesh, the Court mentioned that Section 124A is extremely questionable and unpleasant for both practical and historical reasons. It must be removed as soon as possible. 

Two restrictions were added in Article 19 (2) after the first Constitutional Amendment, ‘friendly relations with foreign state’ and ‘public order’. 

• In the case of Brij Bhushan v. the State of Delhi, Justice Fazl Ali said that severe public disorder and disturbance in the peace might affect the security of the public as well as the state. So, the reason the term ‘sedition’ is absent from the Constitution because it has terms with wider meaning which includes the feel of sedition and other activities which are harmful to the security of the state. 
• In the case of Raghubir Singh v. the State of Bihar and Dr Vinayak Binayak Sen v. the State of Chhattisgarh, the Supreme Court and Chhattisgarh High Court held that in order to commit sedition, it is not mandatory that the accused provides the seditious material or should have actually attempted hatred or disaffection. 
• In the case of V. A. Pugalenthi v. State, the Madras High Court held that reaching out to the public to gain support against the Central and State Governments on the issue of NEET examination is not sedition as every citizen of the country has the fundamental right to register protest peacefully without violence and public nuisance. 

This is the journey of sedition after Independence, so any words or actions used against the government which do not threaten the security of the state and people or doesn’t lead to any sort of public disorder would not fall under Section 124A of IPC.

Constitutionality of Sedition

Ram Nandan v. State of Uttar Pradesh was the first case to attack the constitutionality of Section 124A of IPC. Freedom of speech and expression is the soul of our constitution and Section 124A violates that. The Allahabad High Court held that it is beyond the legal authority of the Section to restrict freedom of speech and expression. 

Kedar Nath Singh v. the State of Bihar challenged the constitutionality of Section 124A, the judgement of the case Ram Nandan v. State of Uttar Pradesh was overruled through this case. The Court held that there must be boundaries to the Section, as only acts which tend to cause public disorder or violence should fall under the Section and the Court also distinguished between ‘The Government established by law’ and ‘the persons for the time being engaged in carrying on the administration’. 

The government established by law is the symbol of the State, undermining the power of the state can harm the security of the state and the people living in it. Which means respecting the existence of the government is required for the stability of the state. Sedition is an offence against the state. This justifies that every act that comes in the boundaries of Section 124A is an offence against the state. However, the wrong use of this Section is a violation of freedom of speech and expression, Article 19.

Sedition Law

Section 124A of IPC

Sedition is covered under Section 124A of IPC. However, the word ‘sedition’ doesn’t appear in the section as the section only gives a brief understanding of the law of sedition. Section 124A states that:

“Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in India, shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.”

• Explanation 1 – The expression ‘disaffection’ includes disloyalty and all feelings of enmity.
• Explanation 2 – Comments expressing disapprobation of the measures of the Government with a view to obtaining their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.
• Explanation 3 – Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section. 

Sedition focuses to bring hatred or contempt towards the Government or to excite disaffection and disloyalty towards the Government while the comments expressing criticism of the Government or any work of the Government without spreading hatred or disaffection is not sedition. 

Two Essentials of the Section

This section requires two essentials:

1. Bringing or attempting to bring into hatred or contempt or exciting or attempting to excite disaffection towards, the Government of India.
2. Such act or attempt may be done (i) by words, either spoken or written or (ii) by signs, (iii) by visible representation. 

Any act which undermines the government through hatred, contempt and disaffection and causing public disorder or violence is a seditious act and is an offence under Section 124A of IPC. 

• In the case of Balwant Singh v. the State of Punjab, the Court held that criticism through raising slogans once or twice by individuals can not excite or attempt to excite hatred or disaffection towards the government. 

So, to actually support a conviction under Section 124A of IPC, some points must be proven:

1. The accused actually spoke the words.
2. The accused brought or attempted to bring hatred or excite or attempted to excite disloyalty against the Government. 
3. It must create public disorder or violence.

Growth of Sedition

There are many factors which are responsible for the birth and growth of sedition:

1. Education – Education of the people in a society can be a factor responsible for the growth of sedition. Education means complete education of our culture, history, social norms and it must also include psychological, spiritual or any other study which could benefit society by building a strong nation by making future citizens with progressive minds and strong potential. 
2. Socio-Economic Status – The socio-economic status of a person or a group is a factor which helped sedition, as the people with lower economic status wants to earn money by any means possible for their survival, due to which they can convict sedition without having any idea what they are up to. These people unknowingly commit the offences like fake currency distribution, illegal arms dealing and many more. 
3. Degradation of moral values – Cultural influence and reduction in moral values can promote the growth in sedition. Currently, we are trying hard to copy western culture, which leads to losing the rich Indian Culture and heritage. Copying helps in adapting both sides of western culture, good as well as bad. 
4. Religious Fundamentalism – Religious fundamentalism is not only a problem of our country but it has roots globally. Hatred is used as a tool to spread violence in the name of religion and encouraged by a few individuals and some places. Political organizations use this difference for their benefit by provoking individuals or communities to take part in seditious activities. This hatred is damaging our nation at large and communities must be trained to overcome these issues. 

Is Sedition a crime?

Sedition is considered as a crime against the state in the Indian Penal Code. Sedition is considered as disloyalty in action. Sedition can also be considered as a crime against society as it causes or spreads public disorder or violence in the state. 

It is the duty of a police officer to take action against any reliable information lodged by the complainant about sedition. It is an offence which permits arrest without a warrant and also police can start the investigation without the permission of the Court. Procedures, when police can arrest without warrant, are:

1. When the seditious act is taking place in front of a police officer, District Magistrate or Executive Magistrate, then they are allowed to arrest such person without any warrant. 
2. When any classified details are provided by another police officer, then they are allowed to arrest such person without any warrant.
3. When F.I.R. is lodged for sedition.
4. When a police officer has a suspicion on another person, then they are allowed to arrest such a person for further investigation.

Freedom of Speech and Sedition 

Freedom of speech and sedition are like two sides of the same coin. Mahatma Gandhi quoted ‘speech is silver, but silence is gold’, but the silence of the people in the present situation is harming the integrity and sovereignty of the nation. John Stuart Mill said freedom of speech is necessary for a stable society, as it helps the citizens to provide their views about the system, both positive and negative. Napoleon Bonaparte said that ‘The world suffers a lot, not because of the violence of bad people but because of the silence of the good people’. 

Speech is a powerful weapon in a democratic society. Speech can be used as a tool to for motivating people, a medium to promote patriotism and a key in developing the minds of the individuals. Freedom of speech not only provide public opinion but it also helps the underprivileged and unheard people of the society who wishes to give their opinions on government and other policies. A government where people are allowed to criticise the government is an excellent form of government. 

Democracy requires active and smart participation of the public. It is their right to have information about political, social, economic and cultural issues and situations happening around them to form suggestions for the administration. 

Democracy counts every person, irrespective of their differences. Not only the opinions of the majority are considered, but the suggestions and issues of the minority are also acknowledged. 

• In the case of S. Khushboo v. Kanniamal & Anr., the Supreme Court suggested that the free flow of thoughts in a society makes the society smart, which helps in good governance. For achieving this situation, it is necessary that society doesn’t fear the administration for providing opinions. 
• In the case of Tata Press Ltd v. Mahanagar Telephone  Nigam Ltd & Ors, the Supreme Court emphasizes that “Freedom of speech is a basic natural right of an organised society to provide and obtain information on their common interest”. 

Freedom of speech not only helps in balancing the society also provides a feeling of self-satisfaction amongst the people. 

Expression not amounting to Sedition

Expressing strong criticism towards the state or its institutions is not amounting to sedition as both institutions and public make the country. So, criticism over a failed law expressed by the public for the disappointment towards their elected representatives can not amount to sedition because the protests project their disappointment.

The Court has been trying to express that every criticism doesn’t amount to sedition as the intention of the act is extremely important. Its intention must be considered before the conviction towards the act. 

• Like in the case of Balwant Singh v. the State of Punjab, the Court refused to convict casual raising of slogans by two individuals against the State. The Court said that raising slogans to form two people for a couple of times can not create any danger towards the Government established by law, also it can not give rise to hatred among different communities. 
• In the case of Javed Habib v. the State of Delhi, the Court held that criticism of the government is the essence of democracy. Holding an opinion or criticising towards the Prime Minister or his actions can not be considered as sedition under Section 124A of IPC. In the democratic system of government, people choose their government so they also have the right to criticise them. 
• In the case of Sanskar Marathe v. State of Maharashtra & Anr., a cartoonist Aseem Trivedi was convicted under 124A of IPC for defaming the National Emblem, the Parliament and the Constitution of India by disrespecting the Government through his cartoons. 

Through this case, the Court differentiated between disloyalty and criticism. 

Criticism is commenting on measures or acts of the Government or it’s agencies to improve the situation or to protest against those acts or measures by lawful means while disloyalty leads to public disorder and uses violence as the key. 

Criticism never undermines the Government, it is merely a difference in opinion while any act which uses hatred against the Government as a primary tool to cause public disorder is an offence. 

Private Member’s Bill suggesting Amendment

In 2011, Mr D. Raja introduced a Private Member’s Bill to amend Section 124A of IPC, he claimed that the British Government used this law to put down our every view, speech and criticism towards their rule. Today, there are different specialised laws to deal with internal and external threats against the state. So, to control the misuse of this section and to promote freedom of speech and expression, the law must be removed. 

In 2015, Mr Shashi Tharoor another Private Member’s Bill to amend Section 124A of IPC. The Bill proposed that only those actions or words which results in violence or provocation to violence are seditious. This suggested amendment started the discussion on interpretation on sedition once again. 

Reasonable Restrictions

No right can be absolute in nature as the right of one person will conflict with the right of another person. Every right has its own reasonable restrictions to stabilize society and to protect the public from harm. For example, freedom of speech doesn’t allow anyone to defame any other person. There are certain grounds on which reasonable restrictions of freedom of speech are based: 

(i) Sovereignty and Integrity of India

The Constitution Sixteenth Amendment Bill, 1963 also known as Anti-Secession Bill introduced the words ‘the sovereignty and integrity of India’ to Article 19(2), creating another exception towards the right to free speech. This amendment was made to prevent freedom of speech and expression from exploiting the territorial integrity and sovereignty of the State. This amendment restricts everyone to challenge the sovereignty and integrity of the state. It is essential for all the communities to remove all anti-national statements which can cause any sort of violence.

(ii) Security of the State

The term ‘Security of the State’ means the safety of the country against spying, theft, or other danger. Anything which can compromise the security of the state is an offence. The term security of the state majorly deals with serious forms of public disorder, such as rebellion, waging war against the state, riots, unlawful assembly. It protects the economy as well. So, the speeches or expressions which creates violence to overthrow the Government compromises the security of the state. 

(iii) Friendly Relations with the Foreign States

In today’s world, it is important for a country to have good relations with other countries. So, reasonable restrictions must be imposed against the statements which can harm the relations with other friendly foreign states. Anything which can affect these relations must be examined by the authorities first.

(iv) Public Order

This restriction was added through the first amendment of the Constitution of India in 1951. The term ‘in the interest of public order’ not only includes the actions which directly leads to public disorder also those actions which can bend in the directions of public disorder. Public order is not only the maintenance of law and order but it also includes peace, safety and stability of the society. Anything which harms public peace is offences against public order. Criticising Government doesn’t come under public order. 

(v) Decency or Morality

Another boundary of freedom of speech is decency and morality. Anything which affects the morality of the society is indecent. Decency or morality is described under Section 292-294 of IPC. The concept of morality changes from person to person which means an action which doesn’t hurt the morals of a person might be immoral for another person. So, there is no universal definition of morality and decency. In the case of Ranjit D. Udeshi v. the State of Maharashtra, the Supreme Court used the Hicklin’s test to decide the morality. Hicklin’s test sees whether the tendency of the matter charged as obscene tends to deprave and corrupt the minds which are open to such immoral influences’.

(vi) Contempt of Court

The term ‘contempt of Court’ is defined under Section 2 of the Contempt of Courts Act, 1971. Judiciary plays a very important role in a democratic country. So, it is necessary to respect the institution and its orders. It refers to both criminal and civil contempt. A person can be punished for any statement against the Court unless it is for the public interest. While judges don’t have any protection from criticism on their judicial conduct for the statements in good faith or genuine criticism and not in harming the administration of justice. Article 129 and 215 of the Constitution of India provides powers to the Supreme Court and High Courts to punish for contempt. Even a judge can be punished under contempt of Court for raising allegations against the judges of higher Courts.

(vii) Defamation 

Defamation means harming or damaging the reputation of a person through a false statement. Defamation can either be libel which means defamation through writing, printing or any other permanent medium or it can be slander which means defamation through spoken words or imitated gestures. Any individual is known by its reputation more than anything else. So, any right of a person can not affect the reputation of another person. This restriction protects people from losing their reputation. 

The law of defamation is described under Section 499 of IPC and its punishment is given in Section 500 of IPC. Defamation protects private individual interests other than public interest, due to which many petitions were filed in the Supreme Court challenging the constitutional validity of the law. Politicians and corporations misused this section to silence media, activists and criticism.

(viii) Incitement to an Offence

This restriction was also added through the Constitution First Amendment Act, 1951. This ground means that no can must encourage or provoke anyone through statements to commit an offence. Offence means any act which is punishable by law. Right to Freedom of Speech can not protect anyone from encouraging other individuals to commit an offence. Law of sedition is the perfect example of this ground.

So, these grounds are necessary for the betterment of both national interests as well as the interest of society. So, freedom of speech is the basic right but it must not public order.

The Need for Freedom of Speech

1. It helps people to feel accomplished
2. It helps in realising the actual situation of the society
3. It helps in improving the decision making the power of an individual
4. It helps in balancing stability and social change.

• In the case of Union of India & Ors. v. The Motion Picture Association & Ors., the Supreme Court established that free speech is the foundation of a democratic society. Free exchange of ideas, sharing of information without foundation, sharing knowledge, collecting different point of views, discussing and expressing views are the basic feature of a free society. 

The other side is imposing reasonable restrictions from the state on freedom of speech and expression to prevent society from ‘harm’. “Harm principle” states that ‘until and unless a speech doesn’t result in some sort of harm, it can not be suppressed’. It implies that sometimes free speech can cause distress or harm to society, which can be prevented by some reasonable restrictions. 

Supreme Court through many judgements justified that the right to free speech and expression is not absolute in nature, as a person wants to do many things, but in a civilised society, all the desires can’t be achieved. So, the desires must be controlled and improvised for the betterment of other individuals as well as society. It means liberty must be limited for the proper functioning of the society because speech is powerful as it can make people both happy and sad and sometimes angry. So, it must be conducted properly. 

• In the case of S. Rangarajan v. P. Jagjivan Ram, the Court held that the right of freedom and speech can not be restricted until and unless there is a danger to the society or public disorder. The danger must be directly connected to the expression, it must not be hypothetical or unlikely to occur. 
• In the case of Indramani v. the State of Manipur, the Court stated that Section 124A is both void and valid. Restriction on spreading disaffection or attempting to do so is violating freedom of speech while the restriction on exciting hatred or contempt against the Government established by law is valid. 

The law of sedition can be considered as a tool against any person who raises the voice against the state, either right or wrong. So, it must be constantly updated according to the situations and cases. 

The Law Commission of India suggested that Section 124A and Article 19(2) must go hand in hand and there must be a careful inspection of facts and circumstances of the cases related to them. 

Treason

Treason is the crime of betrayal against the country by harming the government. There is no particular law of treason in India because India was ruled by Britishers as a colony, the laws were copied from British Law but for the British people living in the country. The law of treason thus opposes the interests of the Britishers. That is, all the people who were working for the Britishers were actually committing treason against the country and the freedom fighters were not committing treason. This would create troubles for the British Rule. 

Absence of law of treason allows people performing all anti-national activities like demanding a separate sovereign state and can live without fear. 

Sedition and Treason

Sedition and Treason are quite similar as they both act in opposing the government. While treason is a more serious offence than sedition. Sedition is an act which encourages hatred against the government by creating public disorder while treason refers to acts which harm one’s own country. But they are the same in meaning according to a dictionary. 

So, Sedition is against the government in power while treason is a violation against the country. Sedition threatens the government or individuals as an authority while treason threatens the entire country including all the people living in the country. 

Famous Cases of Sedition in India

There have been changes in the law regarding freedom of speech. Suhrith Parthasarathy who is an advocate at Madras High Court wrote that sedition is any action which brings or attempts to bring hatred or disaffection towards the Government established by law in India. The law of sedition helped the country’s ruler in controlling the crowd. Mahatma Gandhi said that the Britishers used their political power to suppress the liberty of the citizens. There are some important cases which helped in the reconstruction of Section 124A through the years:

(i) The Queen-Empress v. Bal Gangadhar Tilak (1897)

This case is one of the most famous cases in the history of the law of sedition in our country. Bal Gangadhar Tilak, who was an advocate was charged twice for sedition. 

• First in 1897, when his speeches encouraged other individuals to spread violence against the Britishers which ended with the death of two British officers. This was the first time when Section 124A of IPC was defined and applied. 
• Second in 1990, when he wrote an article in his newspaper ‘Kesari’ about the Maratha Warrior Shivaji which was considered seditious by the government. Interpretation of ‘Disaffection’ was given through this case.

(ii) Kedar Nath Singh v. the State of Bihar (1962)

This was the first case of sedition in the Court of Independent India. This case challenged the constitutionality of Section 124A. The Supreme Court distinguished between disloyalty towards the government and criticising the government without creating public order or genuine criticism in good faith. He was a member of a Forward Communist Party in Bihar and was charged for a serious speech disapproving the government and trying to create a rebellion against the government. The Supreme Court justified that only those actions which can create public disorder are legally seditious. 

(iii) Dr. Binayak Sen v. the State of Chhattisgarh (2007)

Dr. Binayal Sen was accused of sedition for helping the Naxalites and was sentenced to life imprisonment at the Session’s Court in Raipur. He was charged for helping active Naxalites by passing notes from a prisoner to someone outside the jail. He states that he was always under the supervision of prisoner official and doing something like that was not possible rather it was his criticisms against Salwa Judum on their killings lead him to this situation. He told this group was supported by the state government to clear village land and extract iron ore, bauxite and diamonds from it. 

Dr. Sen is a paediatrician and also a human rights activist who has won the Jonathan Mann Award, 2008 for global health and human rights in recognition of his services to poor and underprivileged communities in India. Later on, the Indian Government was criticised by 22 Nobel Prize winners for the imprisonment of Dr. Sen and requested them to release him to accept the award in person. 

(iv) Aseem Trivedi v. the State of Maharashtra (2012)

Aseem Trivedi was a cartoonist and an activist who was best known for his anti-corruption campaign. He was accused of sedition for posting ‘insulting and derogatory’ sketches of parliament and the National  Emblem on the social networking sites. Through this case, the Court differentiated between disloyalty and criticism. 

Mayank Gandhi of India Against Corruption (IAC) told that Trivedi took part in the protest started by Anna Hazare and he also raised voice against corruption. Due to which the government is trying to end his project. According to him, some people may find his cartoons offensive but sentencing life imprisonment for this act was too extreme.

(v) Shreya Singhal v. Union of India (2012-15)

This case plays a very important role in the Indian Legal System as it challenged the constitutionality of the Section 66A of the IT Act, 2000 and finally removing it proving it as a violation of Article 19 (1)(a) of the Constitution of India.

Two girls were arrested by the Mumbai Police for expressing their discomfort by posting comments on Facebook on a protest called by Shiv Sena after Bal Thackery’s death. In 2012, Shreya Sehgal who was a student of law filed a petition to amend Section 66A of the IT Act, 2000 as it violates Article 19(1) of the Constitution of India. 

In 2015, the judgement of the case came after three years which distinguished between ‘advocacy’ and ‘incitement’ and only incitement is punishable by law. The Court said that no person can be tried for sedition unless there is an active connection with causing any violence or public disorder. 

(vi) Kanhaiya Kumar v. the State of Delhi (2016)

On 12 February 2016, Kanhaiya Kumar was arrested by the Delhi Police under Section 124A and 120B of the IPC. He was charged for shouting slogans decreasing the integrity of the country at an event organised by the students of JNU on the hanging of Afzal Guru. Kanhaiya Kumar all the accusations and said that he did not say anything that was seditious. His arrest triggered a political storm between left-wingers and right-wingers.

The University investigated the event and took disciplinary actions against the people involved and imposing a fine of Rs. 10,000 on Kumar. Later, the Delhi High Court removed the fine and termed the committee’s decision as ‘illegal, irregular and irrational’. The arrest gave rise to a strike paralyzing the administration of the university. 

O.P. Sharma, MLA of BJP was involved in attacking Kumar’s parents, JNU students and professors and even journalists and later he denied that. Kumar’s parents said that their son was victimized for having a different opinion than the Hindutva politics. 

After his release, Kumar faced many threats including life threat. 

(vii) Kedarnath v. the State of Bihar (1962)

This case overruled the judgement of Ram Nandan v. the State of Uttar Pradesh, the Court held that this Section is constitutional but it must be interpreted widely.  It meant that for the conviction of sedition the act must create chaos or disturbance of law and order or incitement of violence. The supreme also differentiated between unfaithfulness to the government and criticising the government without creating any public disorder by violence.

(viii) Balwant Singh and Anr v. the State of Punjab (1995)

Balwant Singh and Bhupinder Singh who worked as an assistant in an office in Punjab and as a senior clerk in school were arrested from Neelam Cinema because they were shouting slogans on the day, Indira Gandhi, Prime Minister at that time was assassinated. The slogans were:

• Khalistan Zindabad
• Raj Karega Khalsa 
• Hindustan Nun Punjab Chon Kadh Ke Chhadange, Hun Mauka Aaya Raj Kayam Karan Da

The Court said, raising slogans couple of times by two individuals can not excite or attempt to excite hatred or disaffection towards the government. They can not create any threat against the government established by law and can not create hatred among different communities. They neither get any reaction from the public nor can attract provisions of Section 124A and 153A. Some serious act was required to convict them of sedition. 

Is Sedition Law necessary in India?

Most of the laws including sedition are the gifts from the Britishers to our country. No fundamental right is absolute as all of them have restrictions. Restrictions are needed to protect the public interest. “A citizen has the right to write and say anything about the government as criticism unless and until it doesn’t invite people to do violence against the government established by law”. 

Mere criticism or difference in opinions doesn’t amount to sedition unless it has the capability to incite people to overthrow the government established by law. The sedition law is misused a lot but the Supreme Court suggested that Section 124A is necessary as it helps in certain cases and must not be removed rather the people who misuse this law must be taken into consideration. 

There have been many incidents where people are termed as ‘anti-national’. The actions can be just sentiments against any government member or project and nothing else. But in these cases, the state files charges of sedition but sedition can not be applied to criticism of the government or its functionaries because only words can not be considered as sedition, incitement to violence is the main key to sedition. 

Criticism of the state is the essence of democracy is nonsense after the case of JNU. India is the largest democracy in the world but it still suppresses the views of the youth and trying to control how and what the youth must think. 

Any sedition cases are filed every year but a few are convicted because the authority misuses their power and wrongly convict other people. Even if the people are not convicted, the government shows people that ‘obey or be ready to face the consequences’. 

Before Independence, the Britishers used this law to suppress the freedom movement and the voices of the people but sadly our government is using this law against its own people. It is using this law to complete end our opinions against them. These are the arguments which are used in removing this law.

In the case of State of Rajasthan v. Union of India, the Court said that ‘mere possibility of misusing the power is no ground for denying the existence of power’. 

The Court said that the arguments for removing sedition are precise in their own way but removing the Section can create more chaos in the public. So, the law of sedition is necessary for its own peculiar way.

Why India does not need a Sedition Law?

In India, people can be convicted with sedition for liking a Facebook post, criticising a yoga guru, cheering a rival cricket team, drawing cartoons or not standing up in cinema when the national anthem is being played. The law is mainly used to produce fear in those people who protest against the authority. Due to delays in disposing of cases, people who are charged with sedition have to surrender their passports, can not apply for government jobs, must be present in the Court whenever summoned and spend money on legal fees. In general, sedition violates the right to freedom of speech and expression. There are some reasons which show that India doesn’t need sedition laws:

1. Colonial Law – The most important reason is that this law was made by the Britishers to suppress the Indians who were fighting for their freedom through actions which are against the rules of British Law. Thus, the law must be removed from this democratic society where the power lies within the citizens.
2. Sedition Law – In the current scenario, the law of sedition is majorly used by the political parties for their own benefits. The ruling party misuses the authority against anyone who questions their policies and criticises their authorities. Even the Supreme Court of India has criticised the law but was unable to amend it.
3. The rules and regulations present in the Indian Penal Code are enough to control all the threats to society and public disorder. 
4. At the time of the first amendment, Pandit Jawaharlal Nehru (Former PM) understood that the offence of sedition was fundamentally unconstitutional and said ‘Section 124A is highly questionable and doubtful and it has no place in Independent India for both practical and historical reasons and we should get rid of it as soon as possible’. 

The misuse of Article19(1)(a) and the Current Scenario

The right to free speech doesn’t mean that people can say anything to anyone. It is an unfortunate but necessary restriction to the right. People who divide people on the basis of religion/caste are the people misusing their freedom of speech. Limitations are important in a democratic society to protect the rights of others.

The paid media shows or speaks in the language of the person whoever pays them. Words, sentences and paragraphs create effects on listeners and readers. Sadly, they are the part and parcel of the politics in the mainstream. The main focus is to increase the viewership of their channel or newspaper. To increase their viewership, they can spread any false news or wrong information to society. This is against the ethics of journalism. Media can sometimes cross the limits in defaming one person without actual proof. In the present situation, people easily accept what is wrong without any information about what is right. Paid news is a perfect example of this situation. 

The right to freedom of speech is not only to speak freely to their full potential but it is also about utilising the rights responsibly. In the current scenario, the right to speech is narrowed down to speak against what is wrong. People are misusing their right by giving out false information. Right to free speech is a necessary tool which helps in initiating the changes and improving the wrong activities of the government. Because of the distribution of wrong information, criticism by the society is often considered an insult or defamation. So, it is necessary to impose limitations on the distribution of such wrong and incorrect statements that can probably influence other people. 

Hate speeches are another way to violate the restrictions imposed on freedom of speech to protect the use of free speech to harm others. Hate speech which is spread by group or on social media can have a negative impact on society. The larger the number of people, the greater the effect. Spreading hate against the particular caste/religion/community can create chaos and permanent damage in the society which leads to an awful impact in the future. 

A way ahead

Constructive criticism of finding loopholes in a policy of the government is considered harsh or insults to some people but it is actually showing their affection towards the country, and it can not be considered as seditious. Section 124A must be applied to only those cases where there is an intention to create public disorder or chaos in society or to overthrow the government established by law by violence or illegal means. 

Every careless use of the right to freedom of speech and expression can not be considered as sedition. Expressing their opinion is the right of every citizen, the opinion can be in favour of or against the government policy. No one can arrest anyone under the difference of opinion. People in India can express their frustration of government affairs, for example, calling India ‘no country for women’ can not be considered as sedition as it doesn’t threaten the government in any way or it doesn’t create chaos in the society. Criticism of any kind can not and should not be considered as sedition. 

Restrictions are necessary to protect national integrity and public interest but it should not be used as a tool to suppress free speech. Criticism and debates are like the basic ingredient of a successful democracy. There are some loopholes which lie between the actual law and the interpretation of the law. Thus the law needs to find them and improvise them. So, every restriction imposed on free speech must be carefully observed under severe conditions to avoid problems and violation of free speech.

Conclusion

So, sedition is an extremely controversial law in our country and the government must balance sedition with freedom of speech and expression as the right to openly criticise the government is essential for a healthy democracy. The Court supports the constitutionality of the Section 124A but it’s a conviction to acts where violence or incitement of violence is found. As the authorities misuse this section, it is the perfect time to improvise or review the section. 

Through the cases, the High Court understood that sedition can not be used to penalise criticisms against the government to improve or change the policies by lawful means. Also, it can not be used to convict comments, no matter how strong they are until it creates violence or encourages to create violence. Advocate General issued guidelines for Police Officers on arresting people for sedition, and not following them will be actionable in front of the Court. These guidelines protect people from being a victim of the misuse of sedition. 

According to the Sociological school of Jurisprudence, helps in creating a balance between the different interests of society. Therefore, we need to create effective provisions to cure sedition, in order to maintain the integrity and sovereignty of the country. Our education system must help the students to have clarity of thoughts and ideas to build a progressive nation and the Judiciary with the huge responsibility to judge precisely every case of sedition to help the victims. 

The post What is Sedition? appeared first on iPleaders.

This article is written by Shruti Singh, a student at Lloyd Law College, Greater Noida. In this article, she discusses the Constitution of India, Article 21. 

Introduction 

The article prohibits the deprivation of rights according to procedures established by law. Article 21 is the heart of the Indian Constitution. It is the most organic and progressive provision in our Indian Constitution. Fundamental rights are protected under the charter of rights in the Constitution of India. Article 21 talks about equality before the law, freedom of speech and expression, religious and cultural freedom, etc. Article 21 is valid for every citizen of India. It is also valid for foreign citizens. 

Article 21 of the Indian Constitution 

Article 21 has two types of rights: 

1. Right to life 
2. Right to personal liberty

Right to life

Every citizen has the right to life, liberty, and security of person. The right to life is the fundamental right in the Indian constitution. Human rights are only attached to living beings.  The right to life is the most valuable rights to citizens. There would have been no Fundamental Rights, worth mentioning if Article 21 had been interpreted in its original sense. This article examines the right to life which is interpreted by the Supreme Court of India in numerous cases.

Right to life is a fundamental aspect of life without which we cannot live as a human being and it includes all those aspects of life which go to make a human being’s life meaningful, complete, and worth living. It is only the article in the constitution that has received the widest possible interpretation. Under Article 21 of the Indian Constitution, the right to shelter, growth, and nourishment are mentioned. Because it is the bare necessity, minimum and basic requirements that are essential and unavoidable for a person for the right to life and other rights.  

Case law

Kharak Singh vs State of Uttar Pradesh

Facts of the case

By the terms of the life, the existence of animals is more important. The inhibition against deprivation extends to all those limbs and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body by amputation of an armored leg or pulling out of an eye, or the destruction of any other organ of the body through which the soul of our body communicates with the outer world. 

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The Judgment of the case:

The apex court held that the right to privacy is not a fundamental right in the Constitution of India

Right to personal liberty

“No person shall be deprived of personal liberty according to the procedure established by law”.

 The protection of our liberty is the mere responsibility of our law as our Constitution of India quoted. As we see the Supreme Court is the guardian of the Constitution of India. So according to this Supreme Court has the mere responsibility to protect and guarantee fundamental rights. As a citizen of India, we have all the fundamental rights which are established by law. So we can enforce it through the Supreme Court whenever our fundamental rights get violated.

Right to constitutional remedy is the part of fundamental rights so it is the responsibility of the Supreme Court to exercise the Judicial Review through writs or orders for the enforcement of fundamental rights. The Supreme court has made the judicial process as a bulwark of personal liberties. 

“The Article 32 of the Constitution is the soul of the constitution of India and it is also considered as the heart of the Indian Constitution because in case of Right to life or any right which belongs to human beings we only refer Article 32 of the Indian Constitution”.

 The Constitution of India is the most valuable law. Personal liberty is developed from the Magna Carta. Personal liberty is not subjected to imprisonment, arrest, or other physical coercion in any manner. Positivity is the basic element of personal liberty. 

Case law

Maneka Gandhi vs Union of India

Facts of the case

In this case, Manenka Gandhi issued a passport for the foreign tour from the passport office. But the Regional Passport officer Delhi has informed the petitioner about the passport that this decision is taken by the Government of India for the acceptance of passport. Because of this reason the petitioner had to surrender her passport within 7 days. After some time the Government rejected the passport saying it is against the interest of the general public. Then the petitioner filed a writ petition challenging the government for impounding the passport and declining from doing so.  

The Judgment of the case:

In the case of Maneka Gandhi the Supreme Court gave a new direction to Article 21 and said that the right to live is not merely a physical right but includes the ambit of the right to live with human dignity.

Right to Equality

Right to equality is also the part of Article 21 of the Indian Constitution which is the fundamental right. This right includes equality before the law, the prohibition of discrimination, etc.  No citizen can be discriminated against based on sex, caste, colour, creed or religion. And it is a fundamental right which cannot be violated by anyone. If this right is violated then it is the dishonour of Article 21. 

Equality before law: 

The state shall not deny to any person equality before the law or the equal protection of laws within the territory of India. 

The rule of law is governed by the State Government or the people who are appointed by the law. Equality before the law means every person has to follow the rules and regulations of law that are implemented under the Constitution of India. No law should be violated by any person. If anyone violates the rule of law they are punishable by a court of law. Rule of law also confers that every person is protected within the territory of India. No person can be discriminated against related to sex, gender, caste or religion. Every citizen of India has the right to life under Article 21. The person who came from other countries to India is also guaranteed the right under Article 21.

Supremacy of law

It is a fundamental concept of Rule of Law which requires both citizens as well as governments to understand the concept of law. It gives generality in the concept of law. In past days, it is the principle of Equality before the Law. No person can make their law because the law is governed by the established laws. The rule of law is not easily changeable. Rule of law is the stable laws that are an essential part of individual freedom and security.

Equality before law

The principle of supremacy of law is used in cheques and balances which is under government for making and administering the law. The law does not discriminate between people about sex, religion, race, etc. this concept is codified in the Indian Constitution under Article 14 and the Universal Declaration of Human Rights under the preamble and article 7.  

The Predominance of a legal spirit

This is a requirement for the rule of law because it was insufficient to simply include the above two principles in the Constitution of the country or in its other laws for the state to be one in which the principles of rule of law are being followed. There must be an enforcing authority and it is believed that this authority could be found in the courts. The courts are the enforcers of the rule of law and they must be both impartial and free from all external influences. Thus the freedom of the judicial becomes an important pillar to the rule of law. 

Right against discrimination: This is defined under Article 15 of the Indian Constitution. No person can be discriminated based on:

1. Religion, race or caste
2. Sex 
3. Place of birth 
4. Creed
5. colour

Every citizen has the right to life, education, work, speech, and expression, etc. even the weaker section of the society has the right to education or work in the reputed institution with higher caste people. They have full right to get marks based on merit, not based on caste or religion.

Every person has the right to respect. No one can be humiliated or tortured based on caste or religion. Today in many places low caste people have to face many difficulties based on caste. Higher caste people torture them and kill them because of the caste system. Because in India maximum peoples are unaware of law prescribed in our Indian Constitution. This happens because of low education standards. The person who belongs to the lower caste is not allowed to study in schools with the higher caste people and even they have no money to get an education.

This is a reason high poverty in India. Every person has the right to worship in the temple as well as a masjid or any god house they want to pray  Because god is the same for everyone. So no person is discriminated against based on religion or caste. Even lower caste people have the right to enter the temple to pray to god. Even Muslims can celebrate all the festivals of any religion and celebrate together.    

3. Right of opportunity to employment: No person can be unemployed after pursuing higher education. Even the person who is not educated and belongs to a lower society has the right to work according to their area of interest. If any person knows and if he is from low caste than also they have the right to work and earn money. And everyone has the right to choose their area of interest where they want to work.

It is not enforceable by law. Even a woman has the right to work in reputed companies and institutions. Because women are also educated so they have the right to employment too. Weaker section of society has also the right to work with normal people in the same company as well. There should be no discrimination. Every child has the right to get marks in the examination based on their merit and select the student for higher studies based on their merit and it cannot be violated.

Even after education anyone can move to foreign for employment and get a higher paid in the company. Employment also includes promotion. Anyone can start their business as per and requirements. Employment also includes reservation for the special persons. Note: rephrase  

4. Right against untouchability: Untouchability is abolished by Supreme Court. So no one gets discriminated based on caste and untouchability. Even today in small cities the person who belongs to the low caste has to work in houses for cleaning the dustbins and toilets. They have to face untouchability. Even when the government has provided free education for these people then also they don’t pursue education and work in houses and have to face these problems. They have to live with their community people in a  separate place. They are not allowed to live with high-class people. 

Article 21 of the Indian Constitution and Environment protection 

This is recognized by our legal system that it is a very old invention of our judiciary. It is also part of our Fundamental right. There were some judicial pronouncements for this right. Environmental protection is the most important duty of the Government as well as a citizen of India. If we do not protect our environment we can’t live in it. The most important thing for the protection of the environment is growing more and more trees in our area. Because trees give us oxygen, food, water, etc. and if we don’t plant trees, birds and animals don’t get food to eat and they can die. Birds and animals make our environment healthy and beautiful. Pollution is the reason why our environment is getting polluted. People cut down trees to make buildings and complexes. Birds are not getting shelter to live and they are getting extinct.    

Judicial pronouncements on Right to clean and healthy environment as a fundamental right of Article 21 of the Constitution of India

Article 21 of the Constitution of India states that no person shall be deprived of his life or personal liberty except according to procedures established by law. The state and its citizens have to take responsibility for the right to clean the environment because we live in this environment. It gives us shelter, food, water, light, etc. so we keep our environment safe and clean and pollution-free.  

Case law: 

Subhash Kumar v. The State of Bihar.

In this case of Subhas Kumar vs. The State of Bihar, the Court observed that the right to life guaranteed by Article 21 includes the right to the enjoyment of pollution-free water and air for a healthy life. 

Judgment of the case:

From this case, the Court recognises some of the rights related to environmental rights that are:

1. The right to a healthy environment is a part of the fundamental right to life. 
2. Municipalities and a large number of other concerned governmental agencies have no content and unimplemented measures for the abatement and prevention of pollution. The government may take some positive measures to improve the environment.    

  Rural Litigation and Entitlement Kendra Dehradun and others.

The petitioner alleged that illegal limestone mining in the Mussoorie-Dehradun region causing damage to the fragile ecosystem in the area in the Supreme Court of India. This petition is considered as the public interest litigation under Article 32 of the Constitution. 

Judgment of the case:

After the petition filed Supreme has given the order to inspect the illegal mining sites. After the inspection, it is noticed that the illegal mining site has a very adverse effect on the environment.

Right to clean environment

Every citizen has the right to live in a clean and healthy environment. Under the Indian Constitution, every person in this world has responsibility for a healthy environment and they have to take some appropriate measures to prevent any kind of environmental harm so they can maintain a healthy environment. They also work to prevent environmental destruction and aim to preserve nature and its natural resources. There are many treaties registered under the UN environmental program for the protection of the environment. 

Stockholm 1972 – Declaration of the United Nations Conference.

Stockholm Declaration was the first international conference on the human environment held   1972 which emphasises on the right to a healthy environment. 

Principles of Stockholm Declaration:

1.  Stockholm Declaration is established for the foundation of human rights and environmental protection, it declares that man has a fundamental right to freedom, equality and adequate conditions of life in an environment that permits a life of dignity and well-being. 

The resolution is held for the enhancement to give efforts towards ensuring a better and healthier environment. The conference issued the Declaration on the Human Environment stating 26 principles.   

M.C. Mehta vs. Union of India

Facts of the case- 

There is a company named Birla Textile in Calcutta. There were 2800 workers who worked for 30 years. Their services were in jeopardy upon the closure of the industry in Delhi. They claimed that they should get full back wages with effect from December 1, 1996. And they also claimed that they should get a 1-year bonus as a shifting bonus. 

Judgment of the case:

When workers claim the work period of 30 years then the court gives the order to the relief sought:

1. Payment of wages to the workers
2. Treat all the workers as regular employees. 
3. It also gives the order to give a 1- year wage as a shifting bonus. 

M.C. Mehta vs. Union of India

 Facts of the case

In this case, the Supreme court has removed the vehicle named BS-IV. Since this vehicle created a high amount of pollution in the city and destroyed nature as well. So for the right to clean environment, the court decided to remove the vehicle from the country as well. 

Judgment of the case:

The court brings the decisions on the issue as to whether such a vehicle is a two-wheeler, four-wheeler, or a commercial vehicle, etc. 

Right against Noise Pollution 

Noise is defined as unwanted sound that forces our ears and it causes pain and annoyance. Section 2 in THE AIR (PREVENTION AND CONTROL OF POLLUTION). Pollution means the destruction of the environment because of various reasons like solid, liquid or gaseous substance including the presence of noise. It may cause injury to human beings as well as plants and animals. Noise is described as unpleasant and irritating to the ear. If we see the measurement of noise, a decibel is a standard for the measurement of noise. The zero on a decibel scale is at the threshold of hearing, the lowest sound pressure that can be heard, on the scale. 

Sources of noise pollution 

1. Road traffic– The noise which is created by the vehicles on the road is the most disturbing element which causes noise pollution in comparison to all types of noise. Because the population of vehicles is increasing day by day. People all the time uses vehicles to roam around. So it creates noise 24 hours a day.  
2. Aircraft noise: This is the type of noise which is created by airplanes. In today’s time, people prefer to travel from airplanes to save time. So it creates very high noise pollution in society. These noises distract people from their work. Many times kids get attracted to this sound.
3. Noise from railroads: The noise which is created from the vehicles which move on the road. Horns and whistles and switching and shunting operation in rail yards can impact neighboring communities and railroad workers.  
4. Construction noise: many times in society, construction works are done to make the buildings in which machines are used for cementing which creates very serious noise pollution. That machine creates a lot of noise in society and it becomes a very serious issue for everyone. It goes on for many days. 
5. Noise in the industry: Noise which comes from industry does not create so much noise because industries are not established everywhere in the city. Factories and industries in some particular places far from societies. But the person who works in the industry face some problems with the industrial noise. Their ears get highly affected by the sound of machines which are used in factories and buildings. 
6. Noise in building: This is a type of noise pollution which is created by the home appliances which are used in the home for the personal use of families like generator, motor, coolers, mixers, etc. noise is also created from the music player, T.V which we play in our homes for our entertainment. In the time of marriage, people use a DJ in their homes for entertainment, it also creates noise pollution. In metropolitan cities, the government restricts DJ at night after 10 pm. But in smaller cities, this rule must be followed for public safety from noise destruction.     
7. Harmful effects: all the people are affected by noise pollution like human animals, birds, etc. noise pollution could make irritational to anyone. 
8. Legal control: noise pollution can be prevented by the limited use of the products from which noise pollution is created. All the products which create noise pollution are to be used in only specific times.   

Right to pollution-free water and air 

Environment and life are interrelated with each other.  Life exists on the earth depends on the environment. Human beings are responsible for the environment. Human beings are at the center of sustainable development and they are entitled to a healthy and productive life in harmony with nature. Pollution becomes a very serious issue in the case of the environment. The overuse of petrol and diesel in the vehicle creates excessive pollution. Every year a new vehicle is launched. Because more and more are used in the roadside it creates pollution. Because of this reason plants, birds, and animals are getting adversely affected. They are getting extinct day by day. Plants are getting polluted. Human beings are also getting affected and they are caused by different types of diseases. Water is also get affected. In many states, water was scarce by which people are dying. All the persons, animals, birds need fresh air and water and shelter to live. 

Case law:

1. Chhabil Das vs. State & others.

Facts of the case:

Bhartiya Kisan Singh filed a Writ petition before the court for the issue of pollution of water in a minor canal, which passes through the Sri Ganganagar district. After some time this case transferred to National Green Tribunal after giving some directions. After some days again Bhartiya Kisan Singh filed a writ petition for other canals of Sri Ganganagar district claiming that water in these canals is polluted. 

Judgment of the case:

The first decision was issued by the Division Bench and the division bench transferred the case to the National Green Tribunal. Second, the High Court of Jodhpur passed the report to the Rajasthan Pollution Control Board. 

Right to privacy under article 21 of the Indian Constitution

Meaning and concept of the right of life

“The right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by part III of the Constitution.

India’s Supreme Court Upholds Right to Privacy as a Fundamental …

The right to privacy is developing from the past 60 years. And it is the most consistent right in the Constitution of India. After two judgments right of privacy becomes the fundamental right. Privacy is the necessary condition of guaranteed freedom. The supreme court has not guaranteed the right to privacy as an explicit fundamental right to the citizens.

The Supreme Court has constructed the right to privacy as a part of life and personal liberty under Article 21 of the Indian Constitution. At last Supreme court declares “The Right of Privacy” as a Fundamental Right that does not need to be separately articulated but can be derived from Articles 14, 19, and 21 of the Constitution of India.

The fundamental right to privacy is not absolute and always subject to reasonable restrictions. The State imposes some restrictions on the right to privacy to protect the public interest. If we talk about the right to information in the case of the right to privacy, both are related to each other in holding, they complement each other in holding governments accountable to individuals. Law provides information to the people who are held by the government bodies. 

The relation between Privacy and RTI 

• The relation between privacy and RTI, they are the two sides of the same coin means both acts as complementary rights that promote an individual’s right to protect themselves and to promote government accountability. 
• This is a type of considerable debate. Around 50 countries adopted these laws.
• Privacy is challenged by new technologies and practices but RTI laws have access to new information and communications technologies, and web sites containing searchable government records.

  Case laws

  Kharak Singh vs The State Of UP & Others.

Facts of the case:

 This case is related to dacoity, the petitioner was challenged in the dacoity but he gets released because there was no evidence against. But police opened the history sheet against and put him under surveillance. Surveillance means involving in secret pickpocketing of the house or approaches to the houses of the suspects, domiciliary visits at night. The petitioner filed a writ petition under Article 32 of the Indian Constitution, in which he challenged the constitutional validity of U.P police regulations. 

Judgment of the case:

The court gives separate judgment and put the enquiry on the police officials. And said petitioner right gets violated. 

 Sunil Batra vs Delhi Administration

Facts of the case:

In this case, the petitioner is the prisoner,  he has been tortured. 

Judgment of the case:

judges of the court alleges that torture was practiced by other prisoners to recover money from the victim. Because of the letter, this case is converted into Habeas Corpus.  

Rajagopal vs State Of T.N

Facts of the case:

There were three petitioners in the case the first petitioner is the editor, printer and publisher of a Tamil weekly magazine Nakkheeran, published from Madras. The second petitioner works as the associate editor of the magazine. 

Judgment of the case:

All the petitioners were challenged for more than 6 murders. He was convicted and sentenced to death. The petitioner has appeared in court but judges dismissed his petition.  

Scope and content of Right to Privacy

• Impact of Right to Privacy in the case of Aadhaar, freedom of expression and sexuality

The privacy of the individual is the duty and responsibility of the government. In the case of aadhar card, it is the government id proof for the individual. Aadhar card should be biometric and is fully protected so no fraud can cause.

• Tapping of telephone

To protect the country from crime or fraud and for the protection of national security of the country, the government has started tapping the phone calls, texts, and emails of people. But this is a very serious question raised against the Right to Privacy. Their fundamental rights are being violated through this phone tapping.

There must be some limitations in the phone tapping of people. Because the right to privacy is guaranteed by the Constitution of India. As the right of tapping the phone of people is mentioned under the Union list so the Government has the right to tapping. The authority needs the permission of the Home Minister to tap the phone of the people during the investigation of any crime.  

• Safeguards against phone tapping 

Phone tapping is a very serious issue coming around. Many scandals have come regarding the issue of phone tapping. It has become a political agenda. It is a rule that phone tapping can be done by the government officials only and not by a normal person. The apex court has said that tapping of phones or wiretaps is a very serious invasion of privacy of an individual, and also recognized as the right to privacy which falls under Article 21 of the Indian Constitution.

The Right to Privacy is also under ICCPR in article 17. India is the party of the International Covenant on Civil and Political Rights. The conversation of the people is considered as the freedom of speech and expression which is also coming under article 19(1)(a).  

•   Remedies 

1. Unauthorized tapping of the phone and interception is the violation of the right to privacy, and it is the rule that if anyone gets tapped fraudulently than he can make a complaint against them with the National Human Rights Commission. 

• Disclosure of diseases

Diseases can be disclosed in front of doctors. Because the relationship  between doctor and patient is a trusting relationship. So, there was no privacy between doctor and patient in the case of healthcare. This is the duty of the patient to share all the information related to their health problems like bodily functions, physical and sexual activities and medical history so the doctor can protect the patient from severe diseases or any other severe problem related to health. There were female as well as male doctors so women can comfortably share their sexual issues in front of a female doctor.

Medicines are also available for the protection of health. Doctors help the patient to gain knowledge about some of the diseases that create in the body due to genetic issues. They are the big informer of the patient. In today’s world, many schools and colleges give sex education to the students so they can protect themselves from harmful diseases that   due to reproductive parts of the body. But there are some limitations in the privacy of the information which is provided by the doctor to the patient related to pregnancy.  

• Legislation of health privacy

1. Epidemic Diseases Act, 1897

Epidemic diseases include all infectious diseases like chikungunya, dengue fever, and many infectious diseases. There were many severe infectious health diseases in India as well as foreign countries through which threat is increased to the public health security of India. Legal frameworks are very important in the case of public health security. So that the government has to respond in case of health issues and duties and rights of the citizen. Then this act came into existence in the year 1897. This act is invoked in many states of India. 

• Limitations of this act:

This act is made about 118 years ago and has many limitations.                      

Woman’s right to make reproductive choices

In the case of reproductive choices, abortion and surrogacy is the major issue in India nowadays.Many times due to some medical issues people are preferring surrogacy mother for the child and they don’t try to adopt the child. People usually try to threaten people with the help of money and force women to become surrogacy mothers against their choice. Women are seriously affected by this abortion and surrogacy.

In the case of abortion, many times families force women to abort their child because of a girl child. Families fraudulently get to know the gender of the child and force women to abort their child. This becomes a very serious crime in India. This crime mainly happens in village areas. Many women get tortured due to girl child if abortion doesn’t happen. Reproductive rights are the personal autonomy of a woman’s privacy.

Women have the full right to make a reproductive choice even after marriage. Even after marriage if the husband tries to force their wife for the sex then it is considered as the marital rape and the woman can file a petition against her husband. Consent is very important in the case of reproductive choices. Because it is the most sensitive part of the female body.  

Right to privacy to private medical test

The term privacy means about to with concerning medical is called domestic legislation in the context of a doctor and patient relationship. This relationship is established from the Indian Medical Council Act of 1952, under section 20(a). Section 20(a) says that the doctor has to adhere all the time. 

Privacy of health care includes some of the privacy:

1. Informational privacy which means confidentiality, anonymity, secrecy and data security.
2. Physical privacy means modesty and bodily integrity.
3. Associational privacy means intimate sharing of death, illness ,and recovery.
4. Proprietary privacy means self-ownership and control over personal identifiers, genetic data, and body tissues. 
5. Decisional privacy means autonomy and choice in medical decision-making. 

• Medical confidentiality

It is a set of rules which say that medical problems are only shared with doctors or other medical practitioners. It is the responsibility of the doctor to keep all the details of his or her patient confidential. If because of some reasons patient has to change the doctor for their medical issue so they have to share their medical report to the new doctor in case patient must take consent from the previous doctor so they can share their confidentiality report to a new doctor. 

• Privacy violations about to with concerning policy and information.

The policy of health care privacy is that the report of the medical health cannot be shared with the third party without the consent of the patient. It is the issue of breach of the privacy of health care. 

Here are some issues which violate the privacy of medical health:

1. Inadequate information to the patient related to data.
2. Data is collected unlimited and unnecessary related to personal health data.
3. Collection of health data which is inaccurate or irrelevant.
4. Doctor’s refusal in providing the medical records.
5.  Disclosure of personal health information is caused by embarrassing the patient.

• Mental Health Act, 1987

The provisions of the Mental Health Act,1987 is to protect the privacy of the medical health of the patient and medical report is to be kept confidential. Medical health data cannot be disclosed. 

Statements and objects of the Mental Health Act:

1. Mental ill persons are to be treated from the early period. They are to be treated like a normal person so it will help them to cure fast at an early stage. 
2. In the Indian Lunacy Act, 1912 it says that, with the advancement of medical science, there is a provision in this act for the treatment of mentally ill persons by following per under the new approach.
3. Many times mentally ill persons become dangerous to society if they are not in the early stages of life. 
4. Maintenance charges to be paid for the admission of a mentally ill person if in any case, they try to harm people in the mental hospital.
5.   has the power to regulate the license to control psychiatric hospitals and psychiatric nursing homes. 

Article 21 of the Indian Constitution right to life 

Prisoners right is also a fundamental right. They have the right to life as a normal being, no matter if they are in prison. They have full rights in the prison as well.

•  Article 14 of the Indian Constitution cannot deny to any person for equality before the law or the equal protection of laws within the territory of India.
• Article 19 of the constitution of India mentions six freedoms to all citizens of India. 
• Article 21 of the Constitution of India mention about Right to Life and Personal and personal liberty

These articles that all persons, as well as prisoners, have the right to life, right to equality, and the right to personal liberty. In the prisons as well.  

There are more following rights which are especially for prisoners:

• Violations of Human Rights of Prison Inmates – Legal Service India
• Right to Free Legal Aid – Legal Services India
• Right to a Speedy Jury Trial – FindLaw
• Amendment VIII – The United States Constitution
• Article 6: Right to a fair trial | Equality and Human Rights Commission
• Custodial violence | ABDUL AZEES SIRAJUDEEN – Academia.edu
• Prisoners right

Prisoners are also considered as the normal human beings as they convicted crime and they have to stay in prison for whole life this does not mean they have no right. They have an equal right to life and personal liberty. Prisoners have their rights which is provided by our Government of India. Prisoners should not be treated as in-humans in prison. They are to be treated nicely in prison.

They have the full right to get a chance to change themselves, so prisons provide them with all the facilities in the prison-like food, schooling ,and medical facilities as well. In all the rights prisoners don’t have the right to release. They have to spend their whole life in prison as the decision of the court. 

• Right against illegal detention 

Illegal detention means the unjustifiable and unlawful imprisonment for a wrongful cause. Many times, usually the weaker sections are illegally caused detention because they have not enough money to feed their family. Most women are convicted because of their poor condition they have to forcefully involved in crime like the drug trade.

If we talk about the youth they are also convicted of the crime because of the need for money. Youth are generally involved in the crime because of money because of the financial conditions of their family they are not able to get sufficient pocket money from their family so they involved in theft, robbery, kidnapping, etc. But in prisons youth and women are supported so they can be released early from jail.

Youth are provided with school so they can study and get educated so they can earn money after they released. Women get employment so they can also earn money and they don’t have to bear money from others or to be involved in any other crime. But most times men   detention. Even if they are not involved in the crime. Because many times people try to protect themselves from the illegal detention so they involve police officials in their crime and they fraudulently detain other people who are from the weaker section who is not able to hire a lawyer for their release. And they have face in-human and torture in the jail. This mostly happens in Indian.   

•  Right to personal liberty

“In our world prisons are still considers as torture, warehouse for the prisoners in which human commodities are sadistically kept and where spectrums of inmates range from driftwood juveniles to heroic dissenters.” 

If we talk about women, they have to lead their family before marriage and after marriage according to Hindus. And because of this reason women’s get involved in illegal trade if her husband is not capable to feed their family and because of social pressure she gets involved and convicted for the crime and get prisoned for the whole life. In prison, a woman has to face torture and many more things.

Many times prisons are not safe for women they get sexually abused in the prison. So there is a rule in the Constitution of India that if any woman is convicted for the crime they only get caught by the female police officials and they questioned by the female police. Men are not allowed to detain women in prison. Women are kept in the special prison were only female prisoners can stay no men are allowed in the female prisoners. Because women have the right to personal liberty. And according to this right, women’s safety is very important everywhere as well as in prison.

Women are treated nicely so they can improve themselves and also they are provided with employment so they can lead their family after their release from prison. Women’s release has very high chances. Because they don’t involve in the crime with bad intentions.   

Article 21 of the Indian Constitution and Human Rights

Universal Declaration of Human Rights, Article 21

Human rights include the right to freedom, justice ,and peace in the world. All the members of the family have equal respect and dignity about to with concerning others. No one should be disrespected in the family. Even a new-born has the right to dignity because they are also a Citizen of India. Human right is a universal declaration. Every person has an equal right, either he/she belongs to any community. No person should face caste discrimination. Untouchability is also against the human rights declaration. Caste discrimination is very serious from historic times.

In the past, people get discriminated against because of the lower caste. They are not allowed to live in a society of higher community people. They are not even allowed to work with high caste people. They are considered as the waste material of society. Even after the Human Rights Act came into existence in many villages today also lower caste people are treated in-human and also higher caste people murder them because they are from lower communities. Because many people are not aware of rights that are provided to human beings. 

• Right to live with Human Dignity

Human dignity includes the economic welfare of the people. The state must promote the welfare of the people by securing and protecting their justice, social, economic and political institutions of life. 

Social justice means making rule of law dynamic. Social justice is very important to the citizens of India. All the citizens have equal rights to justice, even the lower community has full justice to equal opportunities for education, medical health, employment, etc. Equality of opportunity helps them to develop their personalities and help them to participate in happiness to reach the goal in life. Because education is the biggest opportunity for the people to evaluate themselves and also they can improve their personality in speaking, dressing, walking, reacting to other people.

They also get the opportunity to involve in work. Social justice helps people to gain respect in the society. The constitution gives full opportunity to the weaker section of the society in all fields by giving them reservation so they can easily get admission in colleges and so they can complete their education and get employment. The government also gives free education to students who are not capable of sufficient money to spend on education.    

 Maenka Gandhi vs Union of India

Facts of the case:

The right to move in any part of India or Abroad is also the fundamental right of the people. It is also part of the rights of human dignity. “No one can be deprived of this right except according to the procedure established by law”. 

Judgment of the case:

There is no law mentioned in the Constitution of India about the revoking of passport act. According to Article 14, 19(1) (a) and (g) and 21, article 10(3) is getting violative of Fundamental Rights.   

Francis Coraile vs Union Territory of Delhi 

Facts of the case:

This is the case of preventive detention and punitive detention. The petitioner Francis Coraile is detained and arrested and keep him in the Central Jail (Tihar Jail). The petitioner filed a petition in the court for a writ of Habeas Corpus to challenge her detention. 

Judgment of the case:

But the court has rejected her petition and she has to continue in Jail. she treated very harshly, she is not able to meet her lawyer as well as her family. She only allowed meeting her family once a month. Her daughter is only 5 years of age. To  meet her lawyer, she has to interview with District Magistrate Delhi in front of a Customs Officer. After the interview, she doesn’t get the allowance to meet her lawyer and she even doesn’t allow to meet her daughter once a month also.  

Bandhua Mukti Morcha vs Union of India

Facts of the case:

This is the case of Public Interest Litigation Under Article 32 of the Indian Constitution. The PIL was filed directly in the Supreme Court of India to take steps to end the Child Labor in Uttar Pradesh. Because of the State of Bihar, many children get kidnapped and experienced child abuse. They are working in the factories of Bihar. All the children are 14 years of age or less than 14 years. 

Judgment of the case:

During the hearing, the court has discussed the protection of child rights to education, health, and development in ensuring progress as a democracy. The court recognizes that child labor cannot be abolished but we can bring some of the changes in child labor. The court has taken some of the measures to protect the child’s rights of education and health.  

People Union of Democratic Rights vs Union of India

Facts of the case:

The Petitioner has filed the case against the Union of India for the violation of Labor Law in India. The allegations of the petitioner which he put on Union of India:

1. The workers in Uttar Pradesh and Orissa are getting the minimum wages of only rs 9.25 per day for their work and even they deduct their one rupee for their commission. This is a violation of the minimum wages act.  
2.  Women get 71rs per day for their work. There is a violation of the Equal Remuneration Act, 1976.
3. Violation of Article 24 of the constitution. Because children below the age of 14 are getting employed by the contractor to work in the factories. 
4. Contract Labor Act is also getting violated. 
5. Regulation of Employment and Conditions of Service Act brought into force for such violations. 

Judgment of the case:

As the rights of the labor get violated court has decided to punish the Delhi Administration and Delhi Development Authority and also said that they cannot escape. 

The State of Maharashtra vs. Chandrabhan

Facts of the case:

The petitioner Chandrabhan Tale, Vithoba ,and Baban all are convicted for different cases. They are sentenced in the court. Chandrabhan’s bail is still pending and he is released for the appeal filed in the High Court. 

Judgment of the case:

The High Court has accepted the bail of Chandrabhan give the order to release not to be lodged him in the prison. 

Right against sexual Harassment at workplace

The Prevention, Prohibition and Redressal Act is passed for the protection of women at the workplace. This act is passed by Lok Sabha of the Indian Parliament. Employment is the right of a woman. Society has a very low perception of women. They always consider men as superior to women so they can’t work as equal to men. So in most working places, people try to harass women sexually and mentally. Because of sex determination in India women has to face sexual harassment at workplace especially in government organization. It is because of natural human behavior and harmless flirtation.

Because of fear of society or family, women do not report the matter to the police or the concerned authorities. It is considered as a violation of Human Rights. The Sexual Harassment of Woman at Workplace Act,2013. Through this act ensures that the government will ensure that they will provide a safe working place for women and build a safe work environment that will respect women’s right to equality and the right to dignity. This will also improve the economic women empowerment and inclusive growth so that they can participate in different types of work.

Case law:

Vishaka vs. the State of Rajasthan 

Facts of the case:

It is a case of sexual harassment at the workplace. One of the social activists who tried to stop the marriage of Vishaka because she was an infant and she is not in the age of marriage. Because of this the 5 family members of Vishaka including her husband raped her. And also she was taken to the police station for the encounter. The female police tortured her whole midnight and also in the morning one of the police also said her to leave her lehenga in the police station for the evidence. Then she filed a case against sexual harassment in the High court. 

Judgment of the case:

High Court has observed gang rape of Vishaka and gives the judgment that under article 14(2), 19(3)(1)(g) and 21(4) of the constitution of India that every profession, trade or occupation should provide a safe working environment for women employee.      

Apparel export promotion council vs A.K Chopra

Facts of the case:

When the petitioner filed the case against the defendant. The inquiry has started and the Enquiry officer concludes that miss X was molested by one of the people who belong to the business center. 

Judgment of the case:

The disciplinary authority gave the order to remove the defendant from the work and filed against him in the case and prove him guilty of such offense. The defendant has challenged in court against the judgment of the court. He is taken in the 34th meeting of the staff committee to prove that he is alleged or not.    

Right against Rape

Meaning and concept of Rape:

Rape is a sexual activity which is done without the consent of the woman and it is carried out forcefully by threating her and give an injury against her consent. This happens because of mental illness, mental deficiency, intoxication, unconsciousness, or deception of males. Male is accused of rape cases. Rape is the fourth most convicted crime in India. Madhya Pradesh, Mumbai, Delhi has the highest crime rate record of rape. Mostly 18-35 years of women are the victims of rape in India. 

There were 10 reasons why rape is convicted every day in India.

1. Less female police in India: Women don’t get a chance to do patrol duty. If they get a chance to work in the police, they are provided with other duties. In India, women don’t involve in this work generally. Because society doesn’t give them the chance to prove themselves as a protector so they can protect our country from rape. In 161 districts there was only one station police officer who is female. And the only female official can’t stop the rape of the whole country. If we see every day many rape cases are filed in the police station but nothing happens. It affects the life of the women who are the rape victims. Generally, women hesitate to share their incidents with male police officials or with anyone else. That is the reason India has the highest number of rape in India. Female police officials are seriously needed in our country for the protection of women.  
2. Not enough actual police who are seriously involved in protecting the citizens: Many police officials are just for the money they aren’t serious or dedicated to our country. Police stations are also not safe for women nowadays. Police also become rape convicts for their needs. It is very important to first develop our protector who is employed or studied to protect our country not to make our country a rapist country. This has also become a very serious issue in our country. Female police officials are seriously needed for our country.   
3. Because of provocative clothing: Generally, in India, society provokes clothing of girls and women. As our Indian Society generally people blame women every time for rape because they think because of the clothing issue they are facing rape. In some workplaces, women have to wear extra short clothes as their company demands. Then also people blame women for rape because of clothes. But clothes are not an issue as I think. Because kids who are in the age of 2-5 they are also becoming the rape convict. And their rape convicts are their family members, not anyone else. Even old age women are two are facing rape at late night in the road. Clothes are never a matter for rape. Because of the mental illness of male they commit rape every day.    
4. Acceptance of domestic violence by women: Women are facing rape domestic violence in the case of marriage. Women’s marriage is caused by their consent in many families. And after marriage, they have to face domestic violence by their husband or maternal families. This domestic violence generally caused due to dowry. In the case of marriage, husband tries to do sex with their wives without her consent. They force them to do so every time. This is also considered as rape. Because without consent of both the person sex cannot happen it is considered as marital rape even in married life. Because it is the personal right of women. They can choose whether they want to be involved with their husbands or not. But women do not complain against her husband because of their family because of society. Because it harms their society and husband. This domestic violence becomes rape because of non-acceptance.   
5. Lack of Public safety: Public places are not safe for women, especially at night. Because rape is mostly convicted at night only. In many workplaces, women have to work late at night in private companies. They have to go alone to their homes at midnight. No autos are available at night. Generally, women have to travel by bus at night because only buses roam all day and night. And they are toxicant at night. Because of the toxicity, they try to rape women because they are not in the state of mind. Even cabs or auto are also not safe nowadays. Specially in Delhi. In Delhi, most of the rape cases are filed every year. Delhi is also considered as the rape capital of India. 
6. Encouraging rape victims to Compromise: Womenare the victims of rape they have to compromise and they are a force not to go to the police or fight against the rape victim. They are forced by their families and societies because of the image of the family. They think if they go to the police or try to fight with rapist their lives will be destroyed. And no one accepts them in society. Many girls and women facing many bad circumstances because of rape. Every person always blames women for rape. No one tries to help them to fight against rape convict. And because of this, most women commit suicide to avoid society.  
7. A sluggish court system: India has very fewer lawyers for this type of case. Every year many cases filed in courts but very few have got justice for the rape. Maximum rape cases are filed are pending for so many years.  
8. Few convictions: The conviction rate of India is 26 percent. 
9. The low status of women: Maximum time women who face rape are of low community in Indian society.
10.  Marriage: This is also the reason why a woman or her family don’t complaint related to rape. Because they think if anyone knows about it then no one accepts her as her wife or daughter in law. Parents have to feed their daughter’s lifetime and social acceptance. A maximum time woman has to marry the rapist who raped her to hide the hold the image in the society. This destroys the life of the victim. And if we see in the court, there were thousands of rape cases registered in the court and pending for many years. Even family leave hope of getting justice and rapist get freedom.   

   Sexual Violence has Long-Term Effects on Victims. 

1.  94% of women are facing post-traumatic stress because of rape for two weeks.
2. 30% of women report about PSTD after 9 months of rape. 
3. 33% commit suicide because of rape.
4. 70% of women face severe distress because of sexual harassment and rape. 

Peoples are convicted of rape are getting addicted to drugs.

1. 3.4 times started using marijuana
2. 6 times started using cocaine.
3. 10 times started using other major drugs. 

Bodhisattva Godhwa  vs. Subhra Chakraborty

Facts of the case:

The petitioner is the professor of the college. And the defendant is the student of that college. One day the petitioner visits the defendant’s house to meet her and promises her to marry her and involved with her and after that when she asked him to marry her, he just ignored her and always says that his family wants him in the govt.

Services before marriage. And sexual contact continues for many days and the defendant got pregnant twice and aborted her baby twice and then also continues her relationship. And then they got married secretly and he accepted her as her legal wife. But after whenever she gets pregnant he always aborted her baby. The complaint was filed against him. He filed a returned case. 

Judgment of the case:

But his suit gets rejected by the court.  

Right to reputation 

• Meaning and nature of the right to reputation.

Right to Reputation is the part of Freedom of Speech and Expression as fundamental rights of the Indian Constitution. It is the part of Article 21 and 19(2) of the Constitution. Because the right to reputation is correlated with the freedom of speech and expression, it is the reason for harm of reputation. People have a full right to speak in front of anyone so many times they don’t before speaking in front of any person, they just express their feelings in words it may cause to harm of reputation.

To maintain or balance the right citizens don’t have to interfere in others’ lives because it violates the fundamental rights of the citizen. It harms the dignity and reputation. For harming the reputation in public, that person has to give compensation for the violation of rights. A person cannot be held liable for slanderous or libelous- statements because it is not a criminal offence.

Media is a wide-ranging coverage who helps to explore the news and advertisements. Many times they are held liable for the harm of the reputation of citizens. A journalist covers the news of every person as well as leaders of the country like politicians, business persons. They cover all their personal as well as professional information and make a piece of news. Many times they intentionally make news to harm the reputation of celebrities or politicians. 

• Harm to Reputation 

Any defamatory statement can harm a professional reputation. If someone made a statement about your business that you are a local business person to prove that you are dishonest to the public. It can cause your customer. Reputation can be harmed in any way. If anyone tells any bad statement about you in front of anyone.

It destroys your image. Many people commit suicide because of their reputation. There were many cases filed for the cause of harm to reputation. Even if any person shows your bad things or some small silly things it can destroy the image of the people. Because of this, many people lost their jobs from the company.  

• When Harm is presumed

The statement which is used in a normal conversation can also presume the harm of the reputation. Any statement which is used for accusing another person of sexual misconduct or of having a sexually transmitted disease. If someone is accused of committing a crime can harm professional or personal reputation. It is also considered as defamatory. If someone in public says about any person that he/she is a racist it can cause a strong reaction. 

• Financial Harm

If you face loss in business or if you lose your business because of someone’s defamatory statement about your business or your personal life it can harm your financial reputation.  

• Mental or Physical Anguish

The harm which is caused by victims related to health problems like insomnia, depression, and anxiety, physical ailments. 

State of UP v Mohammad Naim

Facts of the case:

The high court directed an investigation to the investigating officer to know why this complaint filed against him. Police force apologies in front of the court for wrongly alleging him in the court. Court has accepted the apology but puts some of the remarks against the police force.  

Judgment of the case:

The High Court gives the remark for this case by saying that:

“If judges felt with some efforts that they can clear the Augean stable, which is the police force and said that I would not hesitate to wage a war single-handed because single-handed is lawless group in the whole country whose record of crimes comes anywhere near the record of the organised unit which is known as Indian police force” 

State of Bihar v Lal Krishan Advani

Facts of the case:

This is a very serious matter of death and injuries in the state of Bihar in the Bhagalpur District. This is a communal right which creates death and injuries in the Bhagalpur District.

Judgment of the case:

 It is a matter of concern in the state of Bihar for the Bihar State Government. The state government decided to put inquiry into this matter to the Commission of Enquiry under Section 3 of the Inquiry Act.  

Smt Kiran Bedi v Committee of Inquiry  

Facts of the case:

Police officers and lawyers involved together in an incident is apprehended by the students of a college and handed them to the police for committing an offence within the campus of the college. The magistrate discharged the students and take action against police officials. The report has been submitted by the inquiry officer about the conduct of the police officials. Police officials are filed before the committee under section 5(2)(a). 

Judgment of the case:

The notice is issued by the committee in the High Court Bar Association on behalf of the High Court Bar Association and the Commissioner of police together with the supporting affidavits were filed before the committee. The examination of the police will be held on 16 May 1988. Affidavit and evidence were submitted to the inquiry officers.

Right to livelihood

The right to livelihood is not under Article 21 of the Indian Constitution. It is not the Fundamental Rights of the Indian Constitution. Because already right to life is mentioned under Article 21 of the Indian Constitution. But Right to Livelihood is mentioned under Article 19 and 16 of the Indian Constitution.   

Case law 

Olga v municipal corporation

Facts of the case:

The petitioner has filed a writ petition about the conditions of the shelter they are living in. They said that they are living on the pavements and in the slums in the city. Other petitioners also complained about the condition of their area of Kamraj Nagar, Basti where they live. This case is filed about the conditions of the slums and Basti of Bombay City. they filed a case against the municipal corporation of Bombay about the conditions of Bombay.

Respondents must take some actions related to this issue but they are not even responding in this matter. This case is filed for the violation of Article 32, 19, and 21 of the Indian Constitution. Because this is the duty of the government to protect the rights of the citizen of India. 

Judgment of the case:

The court has given a decision that all the pavement dwellers and the slum or busty dwellers in the city of Bombay will be evicted forcibly and deported to their respective places of origin or removed to places outside the city of Bombay.     

D.T.C v D.T.C mazdoor congress

Facts of the case:

The Writ Petition is filed for the condition of the Delhi road transport. And also allegation put on the authority that they are not working properly on road development, not performing their duties properly in case of road development. After the Writ petition filed many of the employees of the authority has to resign from their job as they are not performing their jobs. Then the three respondents filed a writ petition in the High Court challenging the Constitutional Validity of Regulation 9(b), which gave the management right to terminate the services of an employee by giving one month notice or pay in lieu thereof. 

Judgment of the case:

It is a violation of Article 14 of the Indian Constitution.      

Chameli singh v state of UP

Facts of the case:

The land which the petitioner owned is not the agriculture land and it is not amended by the U.P state legislation who provides power to take possession of the case lands and waste lands or arable lands where the land is acquired for the sanitary improvements for the development of society in a planned manner. The state government is empowered to give the possession of the land to the Dalits, a building houses. The appellant has challenged the validity. 

Judgment of the case:

The three contentions put by the division bench, the first contention is that our land is not a waste of arable land, secondly, there is no urgency to the Dalits for the possession of the land. Third contention is that property is the only source of their livelihood. They have no other work for feeding themselves. 

M.J. Sivani v state of Karnataka

Facts of the case:

The petitioner has filed a petition for the license of Video Games requires to be regulated under the Mysore Police Act, 1963. 

Judgment of the case:

The petitioner has got the permission of video games and ordered her to get a license to play video games.

Right to shelter

The shelter is important because it helps humans to grow physically and mentally. It is not for the protection of life but it is for adequate life, space, safety, sufficient light, pure air and water, electricity, sanitation, etc. 

The right to shelter is an important component of the right to life under the Indian Constitution. Because if a person has a life then they need shelter because without shelter no can survive in this world. The shelter is defined as the home where human beings live. Even animals, as well as birds, need shelter to live, they also can’t survive without shelter. The shelter provides us food, water, sunlight, etc. and without all this, we can’t survive.

It helps us develop ourselves. The weaker section of our society such as Dalits, SC or ST who have no shelter to live they have to live in the huts which are made on the roadsides. Cases were coming related to the weaker section of the society that they are dying because of no proper shelter. They don’t get proper food or water. They even have to stand in lines to collect water for their daily needs and drinking. They have so many children who are crying all the time for food. They have to work in fields or on the roadside by holding their child.

They are getting so much affected. Because of the caste issue, no one is ready to give them jobs, Because they are not even educated so they can get the job or they can’t get involved in any type of work because of their less education and lower caste. They are helpless in every condition.

In the case of Chameli Singh vs State Of U.P.

It is the case that is concerning the allotment of land or flats to the weaker sections of the society. The Right to shelter is the Fundamental Right of every citizen of India. So the Government must provide them shelter, proper food, and water. The government has enacted the Slum Areas Improvement and Clearance Act of 1956. Citizens have to change their minds related to caste so the lower caste can also explore themselves.

Chameli Singh v state of UP

Facts of the case:

The land which the petitioner owned is not the agriculture land and it is not amended by the U.P state legislation who provides power to take possession of the case lands and wastelands or arable lands where the land is acquired for the sanitary improvements for the development of society in a planned manner. The state government is empowered to give the possession of the land to the Dalits, a building houses. The appellant has challenged the validity. 

Judgment of the case:

The three contentions put by the division bench, the first contention is that our land is not a waste of arable land, secondly, there is no urgency to the Dalits for the possession of the land. Third contention is that property is the only source of their livelihood. They have no other work for feeding themselves. 

Right to social security and protection of family

• Meaning of Social Security 

Social Security means the security of the citizen of India. Security can be of many types like unemployment, maternity, accident, illness, disability, old age or other such life. State guarantees protection to everyone. It promotes the welfare of the people by securing and protecting them in the social order, social, economic, and political.

Features of the right to social security and protection of families.

1. Availability: the insecurity of the state is required for the social security system and provides benefits for the relevant impact on livelihood.  
2. Social risk and contingencies: social security provides coverage for health care, sickness, old age, unemployment, injury, family, and child support, maternity, disability, survivors and orphans.
3. Adequacy: some benefits and arrangements are done for the protection of family and to provide them an adequate standard of living and adequate access to health care. When a person is involved in social security he might lack in earnings, paid contributions and the amount of relevant benefit. 
4. Accessibility: it has five elements that are directly accessible to social security. The key elements are coverage, eligibility, affordability, participation and information and physical access. There are two types of schemes one is a non-contributory scheme which is necessary for ensuring universal coverage.   

Right to health

The Right to health is a public interest. It is guaranteed under the Fundamental Rights of the Indian Constitution. It is also the part of the Right to Life. Health should be maintained. If we don’t take care of our health if we cannot survive. Our body parts can get damaged due to some of the diseases. There were several private and public hospitals for health treatment. Hospitals provide us health facilities for our treatment.

Doctor and patient relationships are very important for the right of health. Because if any person gets sick he/she has to go to the doctor only for their treatment. But if we talk about the conditions of the hospital, government hospitals cost very low for the treatment but the conditions of the government hospitals are very bad.

Hospitals are very unhygienic and in very bad condition, especially in Bihar and Jharkhand. Private Hospitals are very costly with full facilities available. Weaker sections of society cannot afford private hospitals because of the high amount of treatment. And the condition of government hospital is so bad their treatments are done correctly. The right to health implies that every person can get appropriate conditions for the enjoyment of health without any discrimination. 

• Violations of Human Rights in Health. 

Attention is very important in the case of health. If we ignore our health problems we will cause by some severe diseases which cannot be cured if it comes at the last stage. Every disease is to be cured at the very first stage of life. The people who are suffering from disabilities, indigenous populations, a woman living with HIV, sex workers, people who use drugs, transgenders, and intersex people contribute and exacerbate poor health. This is also a violation of Human Rights in Health.

The world health organization is the biggest organization for the health rights of human beings as a fundamental right of every human being. Health care is always affordable and cheap so everyone can take care of health and everyone gets the opportunity to gain the health facilities in the hospitals and nursing homes. Water, food, housing, should be maintained so that no one caused health diseases. All appropriate conditions are taken to maintain the health and there should no discrimination. A Doctor must have the freedom to control the body of the patient to cure diseases and health-related problems. 

• Approach to human rights related to health. 

Some of the approaches is done for the human rights to provide health facilities settings is done to evaluate health policy and service delivery which mainly targets for practices which are the heart of health outcomes. Programmes related to health are performed for the enjoyment of all people to the right to health.

• Principles of human rights for the health policy

There are three types of principles:

1. Accountability: Accountability means duties which are performed for the human rights for the health policies. Movements are also establishing to perform for the right of human health. For evaluating the health policies for human rights different types of events and movements are organized to maintain the health rights of human beings. From this type of event, people get entertained and become happy. And being happy is the most useful to keep human beings healthy and strong in every sense.  
2. Equality and non-discrimination: This principle is exercised to remove discrimination which is done based on race, caste, creed, religion, color, sex, etc. mostly in small towns or villages people do discrimination with the person who is suffering from HIV, Aids or mental disease. They try to distance from them. Most people abuse those persons who are mentally ill. They don’t allow their family members to talk to them or meet them or even roam around them. The World Health Organization is the biggest principle which is formed to fight against discrimination related to health services. 
3. Participation: Participation means all the persons who are involved in the program for evaluating health-related issues like all the stakeholders including non-state actors who have ownership of the program and event for the assessment, planning, implementation, monitoring ,and evaluation. 

• Universal, indivisible and interdependent

Human rights are equal to everyone, it does not do discrimination between anyone they apply to everyone without any distinction. Human rights are the right to food, the right to health, the right to education, free from torture, etc. 

• Core elements and components of a right to health 

There are two types of core elements of health: 

1. Progress the realization to use the resources: This means the government is taking some important measures for the fulfillment of the rights of human beings. The Government, as well as our Judicial system, has taken some of the measures for the development of the state so that every human being can live a safe and healthy life.     
2. Non-decreasing measures: Non-retrogressive measures cannot be taken in every situation. It is only valid in some situations like free education to children below the age of 5. Retrogressive measures are not to be taken in case of economic, social, and cultural rights. 
3. Availability: People have some sufficient need for public health and health care facilities, goods and services for their protection and care of health. Availability includes age, sex, location, and socio-economic status and qualitative surveys to understand our health needs.  
4. Accessibility: Everyone has access to good health, facilities, goods, and services. Accessibility has four dimensions:

• Non-discrimination
• Physical accessibility
• Economically accessibility
• Information accessibility  

1. Acceptability: Respect others related to medical ethics and gender. Acceptance is very important in the case of medical facilities and every sense. Without we accept our problems we can’t fight with our problems.  
2. Quality: Quality of health facilities should be evaluated scientifically. 

Right to medical care

Every person has the right to medical care as it is mentioned under the fundamental rights in the Constitution of India. And the very important part is doctor-patient relations. Patients right is the basic right or basic rule between medical care and patient. This is the duty of the governmental organizations like hospitals, health care personnel as well as insurance agencies or any payors of medical-related costs has to take care of the patient as their medical issues.

No patient should get discriminated based on sex, colour, creed, and religion. Every patient should be treated equally in all hospitals like in private as well as governmental hospitals. Medical care includes good hygienic food, housing facilities are provided to all human beings so they can live safe. 

Right to Die

The Right to die is a right that totally depends on human beings. In this choice, no one has to get involved to make the decision. This decision all depends on the illness of a person like mental or physical illness. The right to die means a human being is entitled to end their life in any circumstances or can go under voluntary euthanasia.

But forcefull suicide does not come under the right to die. Because many times people have to commit suicide because of mental pressure because of someone in case family pressure or because of love life or because of any situation.

In those days youth suicide is increasing day by day because of study pressure and because of their family pressure because their family pressurizing their child for good marks from the very beginning of their school life. Because of so much high mental pressure, they are not able to focus on their studies so they aren’t able to score marks in their exams. 

There is data on youth suicide in India.

2016- 230,314 The number of suicide increased. 

Suicide is very common for this age 15-29 years and 15-39 years. 

People die every year- 800,000

If we see the total residents of India is only 135,000 means 17%.

In the year 1987-2007, the suicide rate is increased from 7.9 to 10.3 per 100,000 with the highest suicide in Southern and Eastern states of India. 

Tamil Nadu – 12.5%

Maharashtra- 11.9%

West Bengal- 11.0%

2012- Kerala and Tamil Nadu have the highest suicide rates. 100,000 have committed suicide. 

Mens- 100,000, 16.4%

Women- 25.8% 

Reasons for Suicide in India 

• Reason for youth Suicide in India

India has the highest suicidal rate. If we see the suicide rate of youth which is 35.5 per 100,000. It is increasing every year. Parents are the biggest reason for the suicide of youth. Because today’s parents are very conscious of their children in case of study they think that if we don’t pressurize our children they are not able to score good marks in the exam but this is the biggest mistake of parents.

Everyone needs some space in their life for their improvement. If they are allowed to live their lives by their own choice in some limits. Because everyone has the right to live their life with full freedom. There are more reasons for the suicide which is academic pressure, workplace stress, social pressures, modernisation of urban centers, the relationship these are also very serious issues for the youth suicide.   

Factors include which is the reason for suicide

1. Mental health disorder (disorder)
2. Previous Suicide Attempts
3. Abuse 
4. Burden 
5. Family pressure
6. Financial problem

• How suicide can be prevented 

In India suicide is attempted every 40 seconds. The very first and foremost prevention is to bring some resources to maintain mental health. We must speak to advocates and must discuss this issue in front of everyone so we can work on this issue. First, our parents have to change and understand the mental issue of children they are facing nowadays. If they try to work on these issues so we can prevent suicide.

Right to work under article 21 of Indian constitution

Right to work is important because it is an effective way of development, make effective provision for securing the right to education and public assistance in cases of unemployment, old age, sickness, and disablement. The Right to work is defined under article 41 of the Indian Constitution. And under Article 43 of the Indian Constitution mention about the welfare of the people.

The welfare of the state means to secure a living wage and a living standard to all the workers. Under article 38 and 40 states must put some effort into the people so they can put all their capacity in their work so they earn fairly for their living. They can work upon their own choice there is no restriction in choosing their field of work.    

Violation of article 21 of Indian constitution

The violations of human rights mean if any citizen rights get violated which is a fundamental right of the Indian citizen then it is considered as a violation of Article 21 of the Indian Constitution.  

Rights are violated in many forms:

• Harassment 

When women’s get harassed at the workplace or a public place or home or anywhere else it is a violation of the fundamental right of women. Women’s fundamental rights get violated every day anywhere in any form. They have to face many problems and even her  society doesn’t listen to her in this case they blame women for harassment caused daily. Many women don’t even speak about this in front of anyone and continue to face this type of problem. To protect women government has some major prevention to protect women from violating their fundamental rights. 

Death by hanging not violative of article 21

This is declared by the apex court that death by hanging is not violative of Article 21 of the Indian constitution. Because if a person has committed any crime and violated the fundamental rights of the citizen, he is not liable for any fundamental right. So hanging is not violative of fundamental rights. The Supreme Court held that public hanging “even if permitted, under the rules would violate Article 21 of the Indian Constitution being barbaric, disgraceful as seen in any civilized society”.. Death penalty is given only if any deterrent crime is committed by the criminal.

The criminal will get 20 years of life imprisonment and in case he doesn’t get changed he is given the death penalty. “One of the reports which are made in the year 1960 which is made by Great Britain has mentioned this line “we were impressed by the argument than the greatest deterrent to crime is not the fear of punishment but the certainty of detection”. Each court has the hanging judges who give decisions related to the death penalty to the prisoners. The error of judgment is not ruled in case of the death penalty. In the Rajiv Gandhi case, 26 criminals got the death penalty for the crime.

Through education, we get to know that poor persons mostly get the death penalty for the crime. In many international Countries, death penalties get abolished for Human Rights. And the Indian Constitution protects the Human Rights of the Indian Citizen.

Right against public hanging

Lichma Devi Case

Judgment of the case:

it is held that the death sentence is unconstitutional and violative of Article 21 of the Indian Constitution. Death by public hanging is considered as the barbaric practice in India. 

Right against Sexual Harassment 

Vishaka vs. the State of Rajasthan 

Facts of the case:

It is sexual harassment at workplace cases. One of the social activists who tried to stop the marriage of Vishaka because she was an infant and she is not in the age of marriage. Because of this the 5 family members of the Vishaka including her husband raped her. And also she is taken to the police station for the encounter.

The female police torture her whole midnight and also in the morning one of the police has also said her to leave her lehenga in the police station for the evidence. Then she filed a case against sexual harassment in the High court. 

Judgment of the case:

High Court has observed gang rape of Vishaka and gives the judgment that under article 14(2), 19(3)(1)(g) and 21(4) of the constitution of India that every profession, trade or occupation should provide a safe working environment for women employee.      

Apparel export promotion council vs A.K Chopra

Facts of the case:

When the petitioner filed the case against the defendant. The inquiry has started and the Enquiry officer concludes that miss X was molested by one of the people who belong to the business center. 

Judgment of the case:

The disciplinary authority has given the order to remove the defendant from the work and filed against him in the case and prove him guilty of such offense. The defendant has challenged in court against the judgment of the court. He is taken in the 34th meeting of the staff committee to prove that he is alleged or not.

Right against Rape 

Bodhisattva Godhwa  vs. Subhra Chakraborty

Facts of the case:

The petitioner is the professor of the college. And the defendant is the student of that college. One day the petitioner visits the defendant’s house to meet her and promises her to marry her and involved with her and after that when she asked him to marry her, he just ignored her and always says that his family wants him in the govt.

Services before marriage. And sexual contact continues for many days and the defendant got pregnant twice and aborted her baby twice and then also continues her relationship. And then they got married secretly and he accepted her as her legal wife. But after whenever she gets pregnant he always aborted her baby. The complaint was filed against him. He filed a returned case. 

Judgment of the case:

But his suit gets rejected by the court.

Right to Reputation

State of UP v Mohammad Naim

Facts of the case:

The high court directed an investigation to the investigating officer to know why this complaint filed against him. Police force apologies in front of the court for wrongly alleging him in the court. Court has accepted the apology but puts some of the remarks against the police force.  

Judgment of the case:

The remarks of the High Court are: if I had felt that with my lone efforts I could have cleaned this Augean stable, which is   the police force, I  would not have  hesitated to wage this war single-handed. That  there is not,  a single lawless, the group in the whole of the country whose record of crime comes anywhere near the  record of that  organised  unit which is  known as the Indian Police Force. Where  every fish barring perhaps a few stinks, it is idle  to pick out one or two and say  that it stinks.”

State of Bihar v Lal Krishan Advani

Facts of the case:

This is a very serious matter of death and injuries in the state of Bihar in the Bhagalpur District. This is a communal right which creates death and injuries in the Bhagalpur District. It is a matter of concern in the state of Bihar for the Bihar State Government. 

Judgment of the case:

The state government decided to put inquiry into this matter to the Commission of Enquiry under Section 3 of the Inquiry Act.  

Smt Kiran Bedi v Committee of Inquiry  

Facts of the case:

Police officers and lawyers involved together in an incident is apprehended by the students of a college and handed them to the police for committing an offence within the campus of the college. The magistrate discharged the students and take action against police officials. The report has been submitted by the inquiry officer about the conduct of the police officials. Police officials are filed before the committee under section 5(2)(a). 

Judgment of the case:

The notice is issued by the committee in the High Court Bar Association on behalf of the High Court Bar Association and the Commissioner of police together with the supporting affidavits were filed before the committee. The examination of the police will be held on 16 May 1988. Affidavit and evidence were submitted to the inquiry officers. 

Cases on right to livelihood

Case law 

Olga v municipal corporation

Facts of the case:

The petitioner has filed a writ petition about the conditions of the shelter they are living in. They said that they are living on the pavements and in the slums in the city. Other petitioners also complained about the condition of their area of Kamraj Nagar, Basti where they live. This case is filed about the conditions of the slums and Basti of Bombay City. they filed a case against the municipal corporation of Bombay about the conditions of Bombay. Respondents must take some actions related to this issue but they are not even responding in this matter. This case is filed for the violation of Article 32, 19, and 21 of the Indian Constitution. Because this is the duty of the government to protect the rights of the citizen of India. 

Judgment of the case:   

D.T.C v D.T.C mazdoor congress

Facts of the case:

The Writ Petition is filed for the condition of the Delhi road transport. And also allegation put on the authority that they are not working properly on road development, not performing their duties properly in case of road development. After the Writ petition filed many of the employees of the authority has to resign from their job as they are not performing their jobs. Then the three respondents filed a writ petition in the High Court challenging the Constitutional Validity of Regulation 9(b), which gave the management right to terminate the services of an employee by giving one month notice or pay in lieu thereof. It is a violation of Article 14 of the Indian Constitution.

Judgment of the case:

Chameli Singh v the State of UP

Facts of the case:

The land which the petitioner owned is not the agriculture land and it is not amended by the U.P state legislation who provides power to take possession of the case lands and waste lands or arable lands where the land is acquired for the sanitary improvements for the development of society in a planned manner. The state government is empowered to give the possession of the land to the Dalits, a building houses. The appellant has challenged the validity and put three contentions in front of the court that our land is not a waste of arable land, secondly, there is no urgency to the Dalits for the possession of the land. The Third contention is that property is the only source of their livelihood. They have no other work for feeding themselves. 

M.J. Sivani v State of Karnataka

Facts of the case:

The petitioner has filed a petition for the license of Video Games requires to be regulated under the Mysore Police Act, 1963. 

Judgment of the case:

The petitioner has got the permission of video games and ordered her to get a license to play video games.  

 Right to shelter

Chameli v state of UP

Facts of the case:

The land which the petitioner owned is not the agriculture land and it is not amended by the U.P state legislation who provides power to take possession of the case lands and wastelands or arable lands where the land is acquired for the sanitary improvements for the development of society in a planned manner. The state government is empowered to give the possession of the land to the Dalits, a building houses.  The appellant has challenged the validity. 

Judgment of the case:

The three contentions put by the division bench, the first contention is that our land is not a waste of arable land, secondly, there is no urgency to the Dalits for the possession of the land. Third contention is that property is the only source of their livelihood. They have no other work for feeding themselves.

Shantistar Builders  v Narayan Khimlal Totame

Facts of the case:

The Respondent files a petition challenging the Shantistar builders in respect of construction related to the rate of the building. His main aim to change government policy. 

Judgment of the case:

The high court has rejected the petition because the respondent tried to change the government policy. The court has dismissed the petition. By the order of the High Court petitioner has challenged the respondent.  

Right to social security

N.H.R.C v State of Arunachal Pradesh

Facts of the case:

The National Human Rights Commission has filed a writ petition against the state of Arunachal Pradesh challenging that the citizen of Arunachal Pradesh is prosecuting the tribals of Arunachal Pradesh. This petition is filed for the violation of Article 21 of the Indian Constitution. There were a total of 65000 Chakma tribals in Arunachal Pradesh. More facts came around that a large number of Chakmas from Pakistan and Bangladesh are removed from Kaptai Hydel Power Project. After they removed from their work.

They settled in Assam and taken the citizenship of India. The State of Arunachal Pradesh has allotted them some lands and provide 4,200/- per family. The Chakmas has submitted his report of citizenship that they previously submitted to the Arunachal Pradesh Police officials for their Citizenship under the Citizenship Act, 1955. But they have not got any reply from the Commissioner. And the relation between Chakmas and Arunachal Pradesh has deteriorated. NHRC put this issue and issue a letter to the Chief Secretary of Arunachal Pradesh and Home Secretary and Government of India to enquire about this issue. 

Judgment of the case:

The first reply came from the Chief Secretary of Arunachal Pradesh stating that our Police officials will give protection to the Chakmas.    

Right to health 

Case laws: 

Municipal Council, Ratlam vs Shri Vardhichand & Ors.

Facts of the case:

The petitioner is prosecuted by the petitioner related to not clearing the garbage from society. Because garbage can cause diseases that can affect every citizen of the state. But the petitioner has filed the plea saying that we don’t have money. 

Judgment of the case:

But the Supreme court has rejected the petition of the petitioner. And give the decision in favour of the defendant that steps must be taken for the improvement of the health of the public. It is very important for public safety. 

C.E.S.C. Ltd. Etc vs Subhash Chandra Bose And Ors.

Judgment of the case:

In this case, the Supreme Court ordered that the Right to health is a Fundamental Right and it cannot be violated. Health is protected in every case not in case sickness only. And Medical care is valid for every citizen of the state. Even weaker sections of society have a right to medical care. They are eligible to get all the facilities regarding health. So they can live their life safe and happy. 

Mahendra Pratap Singh vs State Of Orissa And Ors.

Facts of the case:

The petitioner has filed the case for the effective measures to be taken to run the Primary Health Center at Pachhikote in the District of Jaipur. For providing all the facilities to the health center for the local people. 

Judgment of the case:

The court issued the order relating to this matter that in every District there should be hospitals and primary health centers for the people’s health and care.    

Right to die

Common Cause (A Regd. Society) vs Union Of India

Facts of the case:

 The petitioner has filed the case for legalizing the living will under Article 32 of the Indian Constitution. The petitioner also wrote a letter to the Ministry of Law and Justice about this issue regarding concerning with the living will. But the petitioner has got no response from the Government of India related to this issue. 

Judgment of the case:

The Supreme Court has put the decision into it that Right to Die is the Fundamental Right under Article 21 of the Indian Constitution. The court held some regard to the patient that medical treatment is necessary for any of the ill-treatment before you think of dying. Because Euthanasia suicide is unlawful in India means you cannot commit suicide because of any ill-treatment.  

 Right to work 

Bandhua Mukti Morcha vs Union Of India & Others

Facts of the case:

This case is filed to stop the child labor under Article 32 of the Indian Constitution to the State of Uttar Pradesh because some children get kidnapped from the State of Bihar and brings to Uttar Pradesh for the Child Labor and involve them in factory works. The children are of less than 14 years and also that children are facing child abuse in Uttar Pradesh during the work. This is the case that violates the Right and Protection of Child Rights.

Judgment of the case:

 The Supreme Court has discussed the protection of child rights and the right to education. But automatically we cannot abolish child labor because of a lot of work. But we can take some steps related to child abuse which is happening in Uttar Pradesh. The court held that the children should get some facilities and provide them education as well as food to them so they can stay healthy to work in the factories. And also take care of them so that they can stay safe.  

Sodan Singh v New Delhi municipal committee

Facts of the case

The petitioner has filed a writ petition against Municipal Committee because their right of trading business gets violated. They do business on the pavement of the roads in certain areas in the city of Delhi. And also claim that they were not so rich and this is the only way of their income. 

Judgment of the case

But Delhi High Court dismissed their petition. But according to Article 19(g), everyone has the right to trade and business in any area. But according to Delhi Municipal Corporation Act, 1957 has the right to permit Hawkers and Squatters on the sidewalks. 

Secretary, State of Karnataka v Umadevi

Facts of the case:

The respondent works as an employee in the Commercial taxes Department. Her work is related to the daily wages in some of the districts of the State of Karnataka. She claimed that she has been working for 10 years. And claimed that she should get all the facilities of the regular employee of the Department. She approached Administrative Tribunal with all her claims. 

Judgment of the case:

But the Administrative Tribunal rejected her claim saying that she has no right to get equal wages as a regular employee or for regularization. Then she again filed a petition in the high court of Karnataka challenging the decision of the Administrative Tribunal. The high court has accepted the claim and order to give equal wages to her as a regular employee.     

Violation of article 21

Mansing Surajsingh Padvi vs The State Of Maharashtra

 Judgment of the case:

This appeal is filed against the judgment of the Bombay High Court which is issued by the Government of Maharashtra in exercise of the powers under sub-para (1) of the Para 5 of the Fifth Schedule to the Constitution and the West Khandesh Mehwassi Estate Regulation, 1961 issued by the Governor of Maharashtra under sub-para (2) of para (5) of the Fifth Schedule of the Constitution.The fundamental right of the respondent is violated by the High Court.   

K.P Hussain Reddy And Ors. vs Executive Engineer

Facts of the case:

The petitioner filed the case related to the compensation is not paid by the respondent. The petitioner gives the letter to the requesting the respondent to pay the amount of 4,67,622 for land acquisition charges. But the respondent failed to pay the amount. 

Judgment of the case:

The court issued a notice to the defendant for the land amount. In  March, the court dismissed the petition saying that in the matter of land acquisition proceeding will be completed within six months.  

Conclusion 

At last, I conclude that the right to life is the fundamental right of every citizen of India. And fundamental rights cannot be violated by anyone. If anyone’s fundamental right gets violated by any public official or government official then that person can file a petition in the Supreme court. Article 21 of the Indian Constitution is going from the past period from the time of the Magna Carta period. Firstly our Indian Constitution is under Magna Carta. That time Judiciary has a limited role in the Constitution. But in today’s time, the Judiciary has an important role in our Indian Constitution.

The law is implemented by the Indian Judiciary which is mentioned in the Indian Constitution. The Constitution of India makes every person equal who is a citizen of India. All are eligible for each right which is provided by the constitution of India. No person shall be discriminated against based on caste, creed, and religion. Protection of rights is the fundamental duty of the Government of India.   

The post Ambit of Article 21 under Indian Constitution appeared first on iPleaders.

This article is written by Shruti Singh, a student at Lloyd Law College, Greater Noida. In this article, she discusses the adoption, Family Law.  

Introduction

Section 5 in The Hindu Adoptions and Maintenance Act, 1956

Adoption means a legal transfer. Generally, new couples prefer to adopt a child not to give birth to a new child. If we see, in India, orphanages are full of children, as they have no parents to take care of them. Today many parents give birth to a girl and throw her in the dustbin and don’t even think twice. This crime is increasing day by day. In today’s generation also people don’t understand the value of a girl child after so high education qualifications. Half of the population of children is alone, they don’t have legal parents to take care of them. Adoption is the best way to give them a good life. It also helps in maintaining the population of the country. Hence, new couples of our generation are working in this matter by adopting the child and give them a better life. 

Adoption under English law

•  U.N adoption program

 According to the United Nations, every state has the right to adoption so that adoption may come in the effect. International Conventions has its own general rules and principles and acts for the adoption right. 

1. The Declaration of the Rights of the Child, 1924 is the first and foremost principle for the protection of child rights. It is also known as the Geneva Declaration of the Rights of the child. This right is adopted by the League of Nations in 1924. Geneva has taken this quote to define the protection of child and child rights under English Law. the quote is “International Save the Children Union”. 

The main objective of this quote is:

1. For the protection of a child and give them a good life. 
2. For the development of their mental and physical health.
3. The children who have no one to feed them and the children who are sick and they don’t get medical health facilities can get adopted and give them all these facilities. Take care of them in all cases. 
4. They are provided with good education even in the orphanages. And most importantly the children who stay on the roadside also get adopted by orphanages and feed them with good food and health facilities. 

World Child Welfare Charter is the first welfare program which is established and perform in the established institution by the League of Nation on 26 November 1924. This is the first human rights document that is approved by the governmental institution to perform the welfare program. 

• The second right which is established by the United Nations is The Declaration of the Rights of the Child is the second document which is established in the year 1959. It gave the children official recognition of the human rights of the children. There are some Declarations, Covenants, and Conventions for the children who did not get parental care. The two summits of UN Convention which was established by the United Nation and India has become a signatory of those summits. The summit is the Declaration of the World Summit for Children. This summit’s main intention is to work for the survival and development goals in the year 2000. 
• The seventeenth session of the UN is the Hague Conference on Private International Law and Hague Adoption Convention(Convention on the Protection of Children and Cooperation in Respect of Inter-Country Adoption) which is adopted for the protection of children and the interest of their parents and adoptive parents so they can adopt children by their own choice and feed them. 

• Person Competent to Adopt under English Law

1. Children domiciled in the United Kingdom
2. Couples are the citizens of the United Kingdom
3. Couples must have their residents to stay.
4. They must be employed so they can give their child a good life.
5. Couples must be married. 
6. Adoption is not allowed for unmarried couples.
7. Couples must adopt the child with the permission of their parents so if any condition they become incapable to feed their children so their parents can feed their children.
8. Couples must be age 21 or above. 

• A person competent to give their child for adoption

In case natural parents died, the Guardian of that child can give the child for adoption. Guardians have the right to give the children for adoption under Guardians of Minor Act. in case of a child is admitted in the hospital, asylum or any other place, in case institution permission is important for giving the child for adoption as well as guardian permission is also required. Children who are only attended 6 weeks of age, their adoption is only valid after the permission of their parents or adoptive parents or guardian.     

• Who may be adopted

Children attended the age of 6 weeks they can be adopted or up to the age of 18. The children who already attend the age of more than 18 years cannot be adapted according to the English law. 

• Effects of Adoption 

1. Adoptive children can’t marry in their own natural parent’s family.
2. Adoptive children can only marry with adoptive children.
3. Adoptive children have rights in the property of their parents.
4. All the rights are the same for adoptive children and natural children.
5. Adoptive children is a citizen of the United Kingdom only.
6. Natural parents can only adopt children. 
7. Adoptive parents cannot adopt children.
8. Adoption is revocable.
9. Adoption is registered under Registrar General. 
10. Records of the adoption are always kept a secret from the public.

Modern Adoption Law

Modern adoption law is established in the nineteenth century for some new changes and development in the society for the betterment of children’s future. Modern adoption promotes the welfare of children for the new ideological framework. The first act which is established in the modern adoption law is The Massachusetts Adoption of Children Act which was enacted in the year 1851. 

Rules of Massachusetts Adoption of Children Act:

1. Prove themselves suitable and fit to adopt the child in front of judges.
2. The birth relatives didn’t get terminated because of adoption.
3. A person who has legitimate descendants cannot adopt a child. 

In the year 1881 New Zealand has introduced the Adoption of Children Act. New Zealand is the first country under Common Health to introduced this act. 

Adoption in India

“Every child has a Right of Adoption”

This quote brings great change related to adoption in India. It is a very sensitive issue in India that children have no one for their care in a very high population. In comparison to all other countries, India has the highest population. And every day, many children are pushed into the orphanages because of their family problems. Even we see children on roadsides roaming around and they have to beg on the roadside for the food and dresses and they cry for the food maximum time. And after seeing these conditions also people don’t even try to feed them when they are capable of feeding them. This is the reason why maximum children have to stay alone. 

Principles to govern the Adoption Process in India

Orphan and abandoned child

• Adoption is legally free under section 31, 32, 33, 36, 40.
• If any child gets adopted without the involvement of the child welfare committee that child has to stay 24 hours with the committee and also has to submit the reports and other documents of adoption to the local police station. 
• Committee issue an order for the interim care of the child. 
• Documents and reports of the adoption are submitted to the local police station as well as entered online in the Child Adoption Resource Information and Guidance System in the format as prescribed. 

Eligibility of adoption in India

1. Parents should be stable for adoption.
2. Parents should economically, physically and financially capable of adoption.
3. Parents must be married.
4. A single male is not eligible to adopt a girl child.
5. Composite age will count.
6.  The age difference between parents and child be 25 years.
7. Step-parent adoption is not allowed.
8. If any couple has 3 children or more than that they cannot adopt a child. 

Age perspective:

• The adoption process in India 

The procedure of Adoption In India:

Child registration: 

• Parents have to register themselves in the organization from where they want to adopt a baby. 
• Documents are submitted for the adoption of a child. 
• The documents required photographs of the current family, Pan card of the parents, birth certificate of the parents, proof of residency, proof of income of last year, medical report of the parents, reference letter, consent of older children.

1. Home inquiry and counselling of parents: when couples registered themselves for the adoption of the child first they have to submit all their documents as required for the adoption according to the adoption agency and then the next process of adoption is the home enquiry of parents where they live. The social worker of the organization where the parents have registered themselves to adopt the child, from that organization some of the social workers visit the house of registered parents and study the home and check all the things in the house for the satisfaction that the parents are capable to adopt the child. And also they do counselling session with parents to know their strength, motivation, and preparation for the adoption of a child.  
2. The child is referred: after every process of the adoption done from the parent’s side then the organization shares medical reports, physical examination reports and other relevant information with the couple and also allow them to spend time with the child so they get comfortable with each other.   
3. Acceptance by parents: finally parents accept the child and take their child with themselves by signing the petition in the court.   
4. A petition filed: the documents of the adoption to the lawyer to present in front of the court for the adoption process and at last, after the end of the process, parents have to sign the petition for the completion of the adoption. 
5. Pre-Adoption foster care: this process is done when the petition is signed. In this process, adoptive parents can take their child to the child nursing home for the pre-adoption foster care centre and help to understand the habits of the child. 
6. Court hearing for the process of Adoption: after parents take adoptive child home after that they have to take their child to attend the court hearing for the adoption process with the child but this hearing is happened in the closed room with judge and the judge some of the questions to the parents and mention the amount which needs to be invested in the name of the child. 
7. Follow up: at last agency has to submit the following report of the child’s well being in 1-2 years. 

• Adoption Coordinating Agency

The functions and duties of the Adoption Agency are as follows:

1. Care, protection, care of their well-being, health needs, emotional, and psychological needs, education, training.
2. Training needs like leisure and recreational activities.
3. Protect from child abuse, neglect, and exploitation, social mainstreaming and restoration.
4. All cases must be for the children related to admissions, restorations, transfers, death, and adoption of children, children missing. 
5. All committees like Child Welfare, District Child Protection Unit, State Adoption Resource Agency, and the Authority through Child Adoption Resource Information and Guidance System are designated for the post of a missing child to file to the police. 
6. The report of orphanages of children is submitted to the Child Adoption Resources information and Guidance System through the website of CARA.

Hindu law

According to the Hindu Law, it legalises the adoption in India. It defines the adoption under the Hindu Adoption and Maintenance Act, 1956. It teaches the parents to treat the adoptive children as their natural child. There must be no discrimination between the adoptive children and natural children. If any parents adopted girl child they must take care of their girl child by giving her all the facilities which she is eligible for as they give to their natural child. There will be no discrimination between a girl child and a boy child. Even girl child get all the facilities they give to their natural son. 

The landmark case on Hindu Law:

Bal Gangadhar Tilak vs Shrinivas Tilak

Facts of the case: 

In this Privy Council observed that adoption among Hindus is not only for the legalise the children but also it is a religious means to make obligations and sacrifices which would permit the soul of the deceased father passing from Hades to paradise. 

Amarendra Mansingh vs Sanatan Singh

Facts of the case:

In this case, the Privy Council observed about the foundation of the Brahmanical doctrine of adoption is the duty which every Hindu owes with his ancestors to provide for the continuance of the line and the solemnization of the necessary rites.

• Adoption is a part of the customs and burden of proving the validity of adoption depends on the person who claims it under the Hindu Adoption and Maintenance Act, 1956.    

Binapani Samanta vs Sambhu Mondal

Facts of the case:

The petitioner has filed a petition challenging the defendant who is the probate of the will on the ground that she was the adopted daughter of the deceased who died and the probate is fraudulent. But she fails to prove the burden of proof of the validity of the adoption. It was held that she could not challenge the probate.

Hindu Adoption and Maintenance Act, 1956

This act was enacted in the year 1956 for the maintenance of children who don’t have legal parents and they have to live in an organization. 

• Features of the Act 

1. Females can adopt a child and even give for adoption. 
2. Female can adopt the child with the consent of his husband
3. A widow can also adopt the child.
4. The male has to take the consent of his wife if he wants to adopt the child.
5. Female can adopt the child which was not permissible in pre-act

Capacity to adopt

1. Unmarried males can also adopt the child.
2. An unmarried female can also adopt the child after the HAMA act, 1956
3. If any married male wants to adopt a child he has to take the consent of his wives.
4. If any married woman want to adopt the child she has to take the consent of her husband.
5. Divorced and widow can also adopt the child.

Capacity to give for adoption

1. If in case parents died then the guardian can give for adoption.
2. If only the father is alive then he can alone give for adoption without any consent. 
3. If the mother becomes unsound mind then her/his father can give for adoption. 

Effect of adoption

When children get adopted he/she gets right in the property of their parents. They become part of the natural family. All the rights and obligations of a natural-born child of the family fall on the adoptive child with some exceptions. These exceptions are as follows:

1. An adopted children can only marry  the adopted child. He cannot marry anyone who is not adopted.
2. Any property which is vested in the adopted child before adoption continues to vest in him subject to the obligation, if any, attaching with the ownership of the property, including the obligations to maintain relations of his/her birth.
3. The adoptive child cannot divest any person of any estate which vested in him or her before adoption. 

If any parents give their property to their adoptive child they lose power to dispose of the property or transfer the property. They don’t have any rights in the property of the adoptive child. If any male is already married and his wife has adopted a child she will be the actual mother of that child and if the male was married another girl she will become the step-mother of the adoptive child. If any unmarried male adopted a child before marriage and after some time he gets married then his wife becomes the step-mother of that child. She will not consider as a legal mother of that child. And if any unmarried woman or a widow or divorced woman has an adopted child and if she married someone then he will become the step-father of that child. Because of this many times dispute is caused between adopted child and step-father. The reason behind this adopted son has no right in the property of his step-father. 

Case law:

Gender bias 

Comparison between male and female in case of adoption.

1. Married women cannot adopt the child even though she cannot adopt the child with the consent of her husband.
2. If any female wants to adopt the child, in case she can only adopt the child if she widow or divorced or a single mother. 
3. A married male can adopt the child with the consent of her wife. 
4. Unmarried males can also adopt the child. 

In the case of giving in adoption father has a better right:

1. If the father is alive he can give his child for adoption with the permission of his wife.
2. But a mother cannot give their child for adoption even with the consent of her husband she cannot give for adoption. 
3. Mother can give the child for adoption if her husband died. 

Case laws:

Malti Roy Chowdhury vs Sudhindranath Majumdar

Facts of the case:

This case is filed by the petitioner for the right of married women for adoption because according to HAMA act married women cannot adopt a child and not even with the consent of her husband. This case is related to gender discrimination. The court marked for this judgment is “Adoption has to be taken factually or legally by the male in case of marriage, and not by the wife. In other words, the wife cannot adopt even with the consent of the husband”. 

Brijendra Singh vs The State of M.P

Facts of the case:

This case overruled the case Malti Roy, in this case, it is observed that this case came as a big disappointment. In this case, disabled lady was married with the village custom, a virgin girl must get married, her husband left her and after that, she adopted a son after 22 years of her marriage. In the other case, disputes are under the agriculture land ceiling law. She sought a declaration that the appellant was her adopted son. The suit was decreed by the trial court and affirmed by the first appellate court. On second appeal to the Madhya Pradesh High Court it was held that, given the provisions of section 8(c) of the HAMA Act, 1956, the adoption was not valid. The argument she said that she is leading a life like a divorced woman was not accepted because this was a great deal of difference between a female Hindu who is divorced and one who is leading a life like a divorced woman, the court observed. 

After this new Act is established in favour of married women, the Gender Discrimination Act which is a personal law amended in the year 2010, which gives right to the married women to adopt a child with husband’s consent but that is not likely to change the fate of married female placed in the position of the disabled, deserted, “divorced-like” lady in this case. 

Factum and proof of adoption

Case law:

Ram Das vs Gandiabai 

Facts of the case:

In this case, petitioner filed a suit for partition against the deceased father’s brother. The latter alleged that the petitioner had no right over the properties, as he was no longer a member of the family because he had been given away in adoption to the man whom his mother later married and who maintained him. The court did not accept this plea. It held that simply because the step-father spent money on his maintenance does not by itself imply that he had been adopted by the step-father. It was accordingly held that even though he was brought up by the step-father, he continued to be a member of his deceased father’s family, with all the rights of a son of that family. 

Nilima Mukherjee vs Kanta Bhusan Gosh

Facts of the case:

In this case plea of adoption was taken based on joint accounts with the alleged adoptive father, the court held that the mere fact of having a joint account is no proof of adoption. 

Dhanno vs Tuhi Ram

Facts of the case:

This is the case of the property dispute based on the claims of the virtue of adoption, but the court refused to accept the claim because there was a valid adoption. The son claimed to be the adoptee of his parents, but he treats him as his biological father, rather than the alleged adoptive mother, as his parent. Besides, there was no other evidence on record to show any ceremony regarding adoption. In these circumstances, a mere placing of a registered adoption deed on record, without proving the factum of adoption, was held to be not enough evidence of adoption. 

The judgment of the case:

The court observed that evidence in support of adoption must be sufficient to satisfy the heavy burden that rests upon any person who seeks to displace the natural succession by alleging the adoption. 

Ram Chandra vs Banwari Lal

Facts of the case:

In this case the validity of adoption deed is challenged where the alleged adoption deed did not bear the signature/thumb impression of the natural father of the adoptee or any of his guardians nor was there any indication of presence of parents and guardians of the adoptee at the time of execution or registration of the adoption deed.   

Prafulla Bala Mukherjee vs Satish Chandra Mukherjee

Facts of the case:

In this case, the adoptive mother sought a declaration of absolute right, title, and interest in respect of the property built by the adopted son, and also a decree for a perpetual injunction restraining his relatives, the defendants, from interfering with occupation and possession of the property. According to the court, the mere fact that an allegedly adopted son permitted his adopted son, adoptive mother, and her family to live in his house, was no proof of adoption. On the contrary, there were several facts to disprove the adoption like the adopted son treating his natural mother as his mother till his death, appointing her as his nominee in the insurance policy, provident fund, etc. performing the shraddha ceremony of his natural father, and his own death, his shraddha ceremony being performed by his brother.   

Suma Bewa vs K.B. Nayak

Facts of the case:

The plea of adoption is rejected in this case because there was proof of the adoption. There was no document executed by the parties in support of the alleged adoption, no contemporaneous document recording name of adopted son as the son of the adoptive father, nor any document to show that the name of the adoptive father was recorded in the service book of the adopted son. On the contrary, the voter’s list indicated the name of the natural father. Besides, oral evidence was found to be suspicious, no independent witnesses were examined to prove adoption ceremony nor a single neighbour examined to testify that adoptive father and adoptive son were living together and addressing each other as such. 

Oriental Insurance Co.Ltd vs Lalita Sharma 

Facts of the case:

In this case, the mere fact that the child was living with his father and step-mother, who claimed to be the adoptive mother, in the same house was held not enough to prove adoption. 

Chandan Bilasini vs Aftabuddin Khan

Facts of the case:

In this case where there was enough evidence of adoption, the mere fact that the adoptive mother, who was an old lady of 86, and some other persons who were present at the adoption ceremony, could not be produced in the court for giving evidence, was held not to be enough to assail the validity of the adoption. Also, where all rituals of adoption as per Hindu Law were followed the adoption deed was registered and photographs and negatives of photographs which had been taken at the time of adoption were produced, the adoption cannot be challenged. It is significant to note that registration of an adoption deed is not mandatory and there is no presumption in law against the validity of an unregistered adoption. However, when the same is registered, there is a strong presumption under section 16 of the act that the adoption has been made in compliance with the provisions of the act unless and until it’s disproved. Such presumption, however, is not irrebuttable and the court may refuse to accept an alleged adoption as legal despite it being registered if there is evidence of circumstances indicating that there was no valid adoption. Such presumption, cannot, however, be rebutted by minor discrepancies in the evidence. For instances where there was enough evidence of adoption, the mere fact that the adoptive mother, who was an old lady aged 86, and some other persons who were present at the adoption ceremony, could not be produced in the court for giving evidence, was held not to be a sufficient ground to assail the validity of the adoption.   

Siddalingaiah vs H.K. Kariappa

Facts of the case:

This is the case challenging the adoption which was raised 40 years after the adoption the court held that the moment the adoption deed was registered parties to the adoption would have constructive notice of the same and challenging it after such a long gap would be barred by limitation. The court further clarified that even if the bar of limitation is not set up as a defence the court must take note of this and dismiss the suit.

Age requirement 

Case law:

Uma Prasad vs Padmavati

Facts of the case:

The claim of an adopted son to properties was sought to be challenged on grounds that the boy was above the age of 15 when he was adopted, and so the adoption was not valid. The parties, who were Agarwals by caste, however, succeeded in proving that they were governed by ancient and well-established custom and usage, which permitted the adoption of boys over the age of 15. The adoption was, consequently held to be valid.    

Khagenbam Sadhu vs Khagembam Ibotial Singh

Facts of the case:

Where the fact of adoption was proved, the challenge that the child was above 15 years, and Manipur custom did not allow such adoption, was held to be not sustainable as the alleged Manipur custom against such adoption was not proved. Adoption was therefore held to be valid. However, in a case where a plaintiff who was not.

Amit Chandubhai Chauhan vs Ahmedabad Municipal Corporation

Facts of the case:

In this case, the alleged adopted son sought a compassionate appointment after the death of his mother, his case was rejected as he was aged 23 at the time of the alleged adoption and he could not prove cogent evidence of the existence of a custom permitting adoption of the child over 15 years. 

Parvathamma vs Shivakumar

Facts of the case:

In this case, the child is over the age of 15 is allegedly adopted and it was not established that there was a judicially recognised custom amongst the lingayats of Karnataka permitting such adoption, the same was held to be void under Sec5(1) violation of section 10(iv) of the Act. 

Atluri Brahmananda(dead) through L.R. vs A.S. Bapuji

Facts of the case:

This is the case where the petitioner succeeded in proving the custom in the Kamma community to which he belonged, recognising the adoption of a boy over the age of 15 and this custom and fact of adoption was also recorded in the registered adoption deed which was not disproved, the adoption was held to be valid.  

Patel Mukesh Kumar vs Regional Passport Authority

Facts of the case:

The petitioner’s application before the passport authorities for the inclusion of his adoptive father’s name in his passport was rejected on the ground that the appellant was aged 34 at the time of adoption and hence the adoption was not valid. On appeal against this rejection, it was held that the passport authority has no power to render a finding regarding the legality or otherwise of the adoption of such findings could be given only by a competent court. Further, the adoption was affected by a registered deed. There is a legal presumption that the same has been made in compliance with the statutory requirements unless it is proved otherwise. In this case, it was not the case of the respondent passport authority that the adoption has been disproved, hence the presumption of validity of the adoption would apply, the court held.  

Adopted child to be Hindu

Case law:

Kumar Sursen vs The State of Bihar

Facts of the case

The issue of the adoption of a Muslim child came up before the court. The child was admittedly brought up by Hindu parents since his every tender age and they also treated him like their son. The court, however, declined to give him the status of an adopted child because of the specified provision of section 10(i) of the Act.

Consent of Wife

Case law:

Siddaramappa vs Gouravva 

Facts of the case:

The court invalidated an alleged adoption by a male without seeking his wife’s consent. The plea that the relations between the husband and wife were stained, and therefore her consent could not be taken was not accepted, as there was documentary evidence to establish that they were living together at the time of the alleged adoption. There was nothing to indicate that it was impossible to have a wife’s consent. Apart from that, when the conditions under which such consent may be dispensed with are specified in the Act, taking any other plea would be adding words to the statute. 

Ghisalal vs Dhapubai

Facts of the case:

This is the case based on the significant judgment of the Supreme Court. It was a property dispute where the issue of the validity of an adoption by a male, even though by a registered deed, was raised. The focal point was, the consent of the wife in the adoption while the petitioner claimed that he is the adopted son was entitled to the properties of the adoptive father, the latter denied the factum of adoption and also absence of the wife’s consent. The trial court, the lower appellate court and the Madhya Pradesh High Court were all of the opinion that the adoption was valid and the consent of the wife of the adopted male can be inferred from the circumstances of the case, that she was present in the ceremonies of adoption and did not question the adoption till the stage of filing the written statement in the suit filed by the petitioner. On appeal, however, the Supreme Court analysed the facts and circumstances of the case in detail and set aside the judgment of the courts below, adoption was held to be invalid.  

Deen Dayal vs Sanjeev Kumar 

Facts of the case:

In this case, the mother’s consent is equally mandatory in giving and taking of a child in adoption. Thus, an adoption, even through, registered, where the child was given in adoption by the natural father but without the consent of the mother, was held to be invalid. 

Consent of the father

Consent of the father is equally important when the mother wants to give or take a child in adoption unless he suffers from the statutory disabilities mentioned in sections 8 and 9 of the Act.

Case laws:

Teesta Chattoraj vs Union of India

Facts and judgment of the case:

In this case, the parents had a divorce by mutual consent and as per the settlement the father gave up all the claims and duties of their daughter. Two years later, the mother remarried and by a registered adoption, deed gave the daughter to the second husband without seeking the consent of the biological father. When the child applied for a passport with step father’s name as the father, the application was turned down because the adoption was invalid. Hence, the child’s petition through her mother under Article 226 of the Constitution. Her plea that the natural father had, in a way “finally renounced” the petitioner’s world since, at the time of obtaining a divorce by mutual consent, he gave up all his rights, responsibilities and claims over the child, was not accepted. On the other hand, a Government Circular of 2009 by the Ministry of External Affairs which provides that relationship of the child with his biological parents subsists even after divorce and the name of the stepparent cannot be written in the passport of the children from a previous marriage was relied upon. While there is logic to this provision, too technical an interpretation may go against the interest of the child. A recalcitrant parent may have abdicated himself/herself of all the responsibilities towards the child yet out of sheer vindictiveness may hold requisite consent which could cause psychological, emotional, social and practical problems as also embarrassment to the child. Each case needs to be assessed on its own merits and facts. 

Guardians and wards Act, 1890

This act is established in the year 1890. The main intention of this act is to define the guardianship of the child. Parents are the real and natural guardian of children but after the death of parents, grandparents or other members of the family becomes the guardian of the children but they are not considered as the natural parents of children. This act is applicable when any couple adopts children and after some because of some reasons they died then child responsibility comes over guardians so they can feed their child or if they are not capable of adoption they can give their child for adoption under this act. Guardians have full rights on the child-related to the right to education, employment, etc. 

Duties, Rights and Liabilities of Guardians

1. Fiduciary relation of guardian to ward- The Guardian and children relation is considered as the fiduciary relation. This relation is for the protection of will and other instruments. But the guardian cannot make any profit in the will and property of children.   
2. The capacity of minors to act as guardians- Minors is considered incompetent so he or she cannot become the Guardian of the children. He could be parents of his children but not a guardian.
3. Control of collector as guardian- if the Guardian is minor then the court appoints the collector for the care and protection of children. The collector is connected with the Guardian. The collector is paid by the government officials.
4. Remuneration of Guardian- when an officer appoints any person for the guardianship of children then that person’s duties towards children is decided by the court.  

Guardian of the Person

Title of guardian to custody of wards- if ward leaves or is removed from the custody of a guardian of his person by the court then the welfare of the ward is transferred to the guardian by making the order for his return by the court and before the transfer of the ward to the guardian the ward gets arrested.  

Duties of guardian of the person- the duties and responsibilities are charged to the guardian after the child is transferred to the guardian by the court. 

Removal of Ward from Jurisdiction- the guardian is appointed by the will or another instrument by the court. If a guardian is adopted with the permission of the court then the guardian should be removed from the responsibility of children.

Guardian of property

Duties of guardian of property– child are transferred to the guardian with some restrictions and bounds under the act. He can only do those acts which are reasonable and proper for the realisation, protection or benefit of the property.

Powers of testamentary guardian– When guardian adopt a child for the care and protection of the child they have some limited powers on childlike mortgage or charge, transfer by sale, gift, exchange, etc. guardian can adopt a child with the help of the will or another instrument which are legal. There are restrictions on the immovable property which belongs to ward is subject to restrictions which may be imposed by the instrument, unless they are declared guardian and the court which made the declaration permits them by an order in writing to dispose of any immovable property specified in the order in a manner permitted by the order.

Limitation of powers of guardian of property appointed or declared by the court– When the person is appointed as a guardian or collector by the court for the protection of the child than he shall not without the previous permission of the court mortgage or charge, transfer by sale, gift, exchange, or otherwise, any part of the immovable property of his ward.

Other than he can lease any part of that property for a term exceeding five years or for any term extending more than one year beyond the date on which the ward will cease to be a minor.

Voidability of transfers made in contravention of section 28 or section 29– A disposal of immovable property by a guardian in contravention of either of the two last foregoing sections is voidable at the instance of any other person affected thereby.

Practice concerning for permitting transfers under section 29– This section mentioned that the guardian has permission to do any acts which are mentioned in this section but it is not granted by the court except in case of necessity or for an evident advantage to the ward. The grant the permission from the court, shall recite the necessity or advantage, as the case may describe the property with respect to which that act permitted is to be done, specify such conditions, if any, as the court may see fit to attach to the permission and it shall be recorded, dated and signed by the judge of the court with his hand, or when from any cause he is prevented from recording the order with his hand, shall be taken down in writing from his dictation and be dated and signed by him. The court may in its discretion attached to the permission the following among other conditions. 

1. That a sale shall not be completed without the sanction of the court.
2. When some people are specially appointed by the court then the sale shall be made to the highest bidder by public auction before the court and the time and place is specified by the court. After such proclamation of the intended sale as the court subject to any rules made under this act by the High Court. 
3. That a lease shall not be made in consideration of a premium or shall be made for such term of years and subject to such rents and covenants as the court directs.
4. According to the court, direction guardian shall be paid to the court on prescribed securities.

Variations of powers of guardian of property appointed or declared by the court– if any guardian is appointed by the court and if such a guardian is not the collector then the court may from time to time restrict or extend his powers with respect to the property of the ward in such manner and to such extent as it may consider being for the advantage of the ward and consistent with the law to which the ward is subject.

Right of guardian so appointed or declared to apply to the court for opinion in management of property of ward– A guardian appointed or declared by the court may apply by petition to the court which appointed or declared him for its opinion, advice or direction on any present question respecting the management or administration of the property of his ward.  

The obligation on Guardian of property appointed or declared by the court– Where a guardian of the property of ward has been appointed or declared by the court and such guardian is not the collector than he shall:

• If a guardian is required to give the bound in the prescribed form to the judge of the court to ensure the benefit the judge for the time being with or without sureties for engaging duly to account for what he may receive in respect of the property of the ward. 
• A guardian is required to deliver to the court in every six months from the date of his appointment or declaration by the court as the direction of the court. The statement of the immovable property which belongs to the ward related to money and other movable property which the guardian has received on behalf of the ward up to the date of delivering the statement, and of the debts due on the date to or from the ward. 
• Guardian have to exhibit his account in front of court when court requires and in such form as the court from time to time directs.
• A guardian has to pay the due balance from his account to the court if court is required as the court directs. 
•  If the guardian apply for the maintenance, education, and advancement of the ward and the ward is dependent on the guardian then such portion of the income of the property of the ward as count from time to time directs, and if the court directs, the whole or any part of that party.   

Power to award remuneration for auditing accounts– when accounts are exhibited by a guardian of the property of a ward in pursuance of a requisition made under clause (c) of section 34 or otherwise, the court may appoint a person to audit the accounts and may direct that remuneration for the work be paid out of the income of the property.

Suit against guardian where administration-bond was taken– Where a guardian appointed or declared by the court has given a bond duly to account for what he may receive in respect of the property of his ward, the court may on application made by petition and on being satisfied that the engagement of the bond has not been kept, upon such terms as to security, or providing that any money received be paid into the court, or otherwise as the court thinks fit, assign the bond to some proper person, who shall thereupon be entitled to sue on the bond in his own name as if the bond had been originally given to him instead of to the judge of the court, and shall be entitled to recover thereon, as trustee for the ward, in respect of any breach thereof.

Suit against guardian where administration-bound was not taken– Where a guardian appointed or declared by the court has not given a bond as aforesaid, any person with the leave of the court, may, as next friend, at anytime during the continuance of the minority of the ward, and upon such terms as aforesaid, institute a suit against the guardian, or, in case of his death, against his representative, for an account of what the guardian has received in respect of the property of the ward, and may recover in the suit, as trustee for the ward, such amount as may be found to be payable by the guardian or his representative, as the case may be.

General liability of guardian as trustee– Nothing in either of the two last foregoing sections shall be constructed to deprive a ward or his representative of any remedy against his guardian, or the representative of the guardian, which, not being expressly provided in either of those sections, any other beneficiary or his representative would have against his trustee or the representative of the trustee. 

Termination of guardianship

Right of survivorship among joint guardians- On the death of one of two or more joint guardians, the guardianship continues to the survivor or survivors until a further appointment is made by the court. 

Removal of guardian- The court may, on the application of any person interested, or of its motion, remove a guardian appointed or declared by the court, or guardian by the court, or a guardian appointed by will or another instrument, for any of the following causes namely:

1. For abuse of his trust.
2. For continued failure to perform the duties of his trust.
3. For incapacity to perform the duties of his trust.
4. For ill-treatment, or neglect to take proper care of his ward.
5. For contumacious disregard any provision of this act or of any order of the court.
6. For conviction of an offence implying, in the opinion of the court, a defect of character which unfits him to be the guardian of his ward.
7. For having an interest adverse to the faithful performance of his duties.
8. For ceasing to reside within the local limits of the jurisdiction of the court.
9. In case of a guardian of the property, of bankruptcy or insolvency.

Discharge of Guardian- If a guardian appointed or declared by the court desires to resign his office, he may apply to the court to be discharged.

Muslim Law

Adoption is the transfer of a child to the parents. Under Muslim law Islam does not recognise the adoption, it is very different from Hindu law. In Muslim law, adoption is recognised as “Acknowledgment of paternity”. 

Acknowledgment of Paternity is the principle that establishes the legitimacy of the child. In this principle child gets acknowledges to become a legitimate child means paternity of the child is established upon him. 

Case law in which the Supreme Court gave judgment related to the adoption, to extend the right of adoption to Muslims also.

Shabnam Hashmi vs Union of India, (2014) 4 SCC 1

Facts of the case:

The judgment of the case, the Supreme Court of India declared that the right to adopt the child by a person as per the provisions of Juvenile Justice Act would prevail over all personal laws and religious codes in the country. The three judges bench consisting of Chief Justice P. Sathasivam and Justice Ranjan Gogoi and Shiv Kirti Singh, however, maintained that 

personal laws would govern any person who chooses to submit himself until such time that the vision of a uniform civil code is achieved.

The Hon’ble Court also stated that adoption was a matter of personal choice and there was no compulsion on any person to adopt or adopt a child.

According to the Act, Juvenile Justice Act, 2002 defines Adoption in section 2(aa). This act confers that the adoptive parents and the child rights, privileges and responsibilities that are attached to a normal parents child relationship.  

Parsi law

“Parsi law” is the only personal law that is defined under the Hindu Adoption and Maintenance Act. There is no other laws governing people belonging to other religions or communities.  The Parsi who are governed in their law by Parsi Marriage and Divorce Act, 1936, and PT III of the Indian Succession Act, 1925 has no provision for adoption. The customary form of adoption amongst the Parsi is known as “Palak”. In the Parsi Law widow can adopt the child on the fourth day of her husband’s death, simply to perform certain annual religious ceremonies. The adopted child does not have the right to property. 

Christian law

“Christians have no Adoption Laws” because the personal law of these communities does not recognize adoption and adoption can take place from an orphanage by obtaining permission from the court under the Guardians and Wards Act. if any Christians want to adopt a child then has to take permission from the court under the Guardians and Wards Act. National Commission on Women has stressed on the need for uniform adoption law. With the help of the National Commission Christians can adopt a child under foster care. If any child is adopted under foster care and when he becomes major he can break all the connections with his family. This type of child has no right of inheritance. 

Case laws:

Philips Alfred Malvin vs V.J. Gonsalves

Facts of the case:

In this case, the court give the judgment that in spite of any absence of any law or alleged existence of any custom enabling Christians to adopt a child, the court legally recognised the validity of an adoption. 

Uniform Civil Code for Adoption

If we talk about Personal Laws in Indian, all are codified to bring social justice, equality among classes and uniformity. This personal law is simple easy and it attempts to make personal faith. It applies to the particular religion. In the case of Uniform Civil Code is also called UCC is a personal lawmaking system that creates a system for adoption for different religions with different rules and regulations. It makes the process of adoption uniform and easy. If we talk about the past situation of the adoption our forefathers do not know UCC but in the present situation, there is a choice to include the provision for UCC to help the future government to implement the law for adoption under UCC. 

Conclusion

The only statute governing adoption in India is the Hindu Adoptions and Maintenance Act or Juvenile Justice Care and Protection of Children Act, 2000. The Juvenile Justice Act has provisions of adoption but in a different context. HAMA has liberalised the law in several aspects like:

1. Clear religious bias
2.  Hindu can only be adopted.
3. Hindu can take and give for adoption

The act has an interest in the care and protection of the child as well as the welfare of the child. Since there is no provision to investigate and look into the suitability and antecedents of the family seeking to adopt, nor any follow-up to ascertain how the child is being treated. Other than that if a foreigner wishes to adopt a child in India he cannot adopt under this act. He can adopt the child under guardian and wards act for being appointed guardian of such a child, has to seek court permission to take the child out of India. Moreover, under this act, the rights which children get are very limited. They have no inheritance rights. Similarly, those who adopt are only guardians and no parents. There is a need for a uniform law on adoption. Thousands of abandoned, orphaned and neglected children need families and innumerable couples wish to adopt, but in the absence of satisfactory legal provisions, the children remain homeless and people desiring to adopt cannot adopt. All attempts to enact such laws are futile. 

Inter-country Adoption

The Hindu Adoption and Maintenance Act applies only to the Hindus. There is no law governing adoption by a different religion, nor is there any statutory provision providing for the adoption of a child by foreigners living abroad.   

CARA

Definition of CARA

Central Adoption Authority is a statutory body of the Ministry of Women and Child Development, Government of India. It functions as the nodal body for the adoption of Indian children and is mandated to monitor and regulate in-country and inter-country adoptions.  

CARA Adoption Guidelines and authorities for adoption in India

1. Photograph of the current family for adopting the child.
2. Pan card of the adoptive parents.
3. Birth certificate of adoptive parents.
4. Residence proof of adoptive parents.
5. Proof of income of the family.
6. Medical certificate from a medical practitioner.
7. Marriage certificate.
8. Divorce decree.
9. Reference letter from relatives in support of adoption.
10. Consent of the old siblings.
11. Home study report valid for 3 years only. 
12. Parents should be declared legal.
13. Parents can file a suit against the adoption agency for the rejection of adoption.
14. The appeal referred to in sub-regulation 14 shall be disposed of within 15 days and the decision of the Authority in this regard shall be binding. 

State Adoption Resource Agency 

Specialised Adoption Agency 

1. The parents responsibility towards children is to take care, protect them and take care of their well-being and shall cater to their health needs, emotional as well as psychological needs, educational and training needs, leisure and recreational activities, protection from any kind of abuse, neglect and exploitation, social mainstreaming and restoration or as the case may be and follow-up.
2.  The cases related to admission, restorations, transfers, death, and adoption of children is to be reported in the institutions like Child Welfare Committee, District Child Protection Unit, State Adoption Resource Agency and the Authority through child Adoption Resource Information and Guidance System. These are also the designated portal for child and police.
3. Status of the child orphan abandoned and surrendered child on the Child Adoption Resources Information and Guidance System, is to be submitted on the website www.cara.nic.in.
4. Certificates are issued of the children by the Child Welfare Committee to declare the child legality free for adoption in Child Adoption Resource Information and Guidance System within forty-eight hours from the receipt of such certificate and must be uploaded. 
5. Child study report must be prepared by the social worker and upload it in Child Adoption Resource Information and Guidance System, within seven days from the date, such children are declared legally free for adoption by the Child Welfare Committee.
6.  The medical tests of the child are to be submitted or uploaded in the Child Adoption Resource Information and Guidance System as provided in schedule IV and it is prepared in the home by the parents or orphanage.
7. Prepare individual care plan for each child in the following order: restoration to the biological family or legal guardian, inter-country adoption, foster care, and institutional care. 
8. Album of the children is to be made after the adoption by the parents.
9. Make efforts to place each child in adoption, who has been declared legally free for adoption by the Child Welfare Committee. 
10. Ensure that siblings and twins are placed in the same family, as possible. 

Authorised Foreign Adoption Agency

1. Register the prospective adoptive parents interested to adopt children from India and to complete their home study report.
2. Follow-up with Specialised Adoption Agency for ensuring early adoption after receipt of No Objection Certificate for the Adoption from the authority. 
3. Give orientation to the prospective adoptive parents on culture, language, and food of the place to which the adopted child belongs.
4. Ensure the submission of post-adoption follow-up of the progress of adopted children and to address the cases of disruption, as specified in regulation 19.
5. Arrange get-together of children of Indian origin and their adoptive families from time to time with the involvement of the Indian diplomatic missions concerned.
6. Facilitate root search by older adoptees.
7. Upload attested copies of the adoption application of the prospective adoptive parents in the Child Adoption Resources Information and Guidance System and forward the original of the same to the allotted Specialised Adoption Agency.
8. Fulfill the legal requirements of the host country as well as the terms and conditions of the authorisation given by the Authority. 

District child protection unit

The district child protection is introduced by the Government of India in the year 2009-10. The main aim to bring this Child Protection Unit:

• Bring some programs for child protection with some improved norms.
• Incorporate other interventions that aim to address issues that were so far not covered by earlier schemes.
• Based on principles of protection of child rights and the best interest of the child.
• Every District has a child protection unit.
• The district child protection unit is under the Chairperson of the Chairperson.
• District Magistrate, District Child Protection Unit has been established in District Panipat from July 2012.

The District Child Protection is set up by ICPS envisages in each district as a fundamental unit for the implementation of the scheme. This unit is under the chairperson of the chairperson. The District Magistrate is the chairperson has been established in District Panipat from July 2012.

Rights of Adopted Child in India

The child has all the rights, as well as the adopted child have all the rights after adoption. The adopted child becomes legal as the normal child. This is defined in the Hindu Succession Act, 1956. If the parents die without making the will of the property then the property always goes to the Class-1-heirs. An adopted children also have rights in the will of the parents.  

Conditions for Adoption

According to the Hindu Law, below the age of 15 years if he/she is not adopted previously. But if any child already gets adopted then he cannot get adopted twice. In the Guardianship Law and the Juvenile Justice Act, 2015, if any child is not Hindu and if he is above 18 years of age then he/she can also be adopted. In other religions like Islam, Christianity, Parsis and the Jews, if they want to adopt a child then they can adopt a child under section 8 of Guardians and Wards Act because they have no personal law for adoption. There are some rules and regulations for the adoption which adoptive parents have to follow. 

Conclusion

At last, I conclude this topic by saying that adoption of the child is the biggest development process. Because of this process, the children who are not legalised are to be legalised after the adoption and they also get all the care and protection from their family. It also maintains the population of the country. If we see, in India, orphanages are full of children, as they have no parents to take care of them. Today many parents give birth to a girl and throw it in the dustbin and don’t even think. This crime is increasing day by day. In today’s generation also people don’t understand the value of girl child after so high education. Half of the population of children is alone they don’t have legal parents to take care of them. Adoption is the best way to give them a good life. It also helps in maintaining the population of the country. But new couples of our generation are working in this matter by adopting the child and give them a better life. 

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Introduction

The rise of white-collar crime has left many victims traumatized, broke or affected by mental health disorders. Even though fraud, embezzlement or forgery are described as non-violent crimes, the financial loss suffered by victims is a basis for legal action and/or imprisonment. 

What should investors understand about fraud in the financial industry and what can they do if they fall victim to this crime?

Securities Or Investment Fraud

Securities fraud is known as stock fraud or investment fraud and is illegal. The practice of investment fraud is a deceptive act which encourages investors to make certain sale decisions based on false information, which often results in a loss to the investor. The misinformation and manipulation of a financial market can be done by an independent person such as a stockbroker, or brokerage firms or investment banks.

Often, securities fraud takes place behind the scenes of Ponzi schemes, pyramid schemes or insider trading. Ponzi schemes work on the premise of a fraudulent investment which uses a new investor’s money to profit the old or original investors in the scheme. 

Pyramid schemes emphasize the recruiting of new investors and their money is used to pay the initial investors just as in a Ponzi scheme. The pyramid scheme works by the top tiers gaining more money as a return as the tiers below them recruit more investors until the base of investors is so large the scheme collapses due to an inability to raise enough funds to pay every investor back. At this point, everyone loses their money. 

Insider trading in India is a little more complicated than elsewhere as insider trading is allowed up to a certain extent, providing there is no malice intended. India allows corporate insiders to trade within their company’s owned stock, but this activity must be disclosed to avoid non-public sensitive information. 

Legal Recourse

Insider trading in India can be legal or illegal as determined by SEBI (Securities Exchange Board of India) laws, which govern trading in the national stock or Bombay stock exchange. Insider trading is allowed if unpublished or information which has not been made public is not used in a fraudulent way. 

Victims of securities fraud have legal recourse and can often rely on lawyers who specialize in investment fraud. Specialized law firms such as the Silver Law Group work with investors to recover losses experienced due to securities and investment fraud. 

Support And Counselling For Victims

Victims of investment or securities fraud should seek professional counseling in both a personal and financial capacity. Seeking the help of a counselor, psychologist or mentor can be comforting and provide victims with a better perspective or handle on the situation. Most medical aid or community centers offer free counseling to victims of fraud. Speaking to a financial advisor will be the next step in trying to rebuild the financial loss incurred due to fraud. 

The psychological and emotional impact of investment or securities fraud on the victim should never be ignored or underestimated. A good support system in the form of colleagues, friends or family can go a long way to assist the victim to recover financially and emotionally.

The post What To Know About Securities Fraud appeared first on iPleaders.

However, labour and employment laws inform each of those tasks. One has to operate within the legal framework, and having the requisite knowledge of law is a hugely empowering factor. One who knows law will confidently come up with out-of-the-box ideas and would know the legal implications, and therefore can move faster, while the others would be slowed down and be at the mercy of lawyers at every step. 

So what are the law related skills that an HR manager should develop? Here are the ones we think are most important.

Understand the legal system and hierarchy of authorities

India has a well structured legal system. It is critical to understand the role of constitution, parliament, state assemblies, Supreme Court, High Courts, civil courts, criminal courts, labour courts and industrial tribunals. You need to understand which offences are of a criminal nature and which are just civil breaches. You need to understand the role of the executive and about delegated legislations. You need to know who are labour inspectors, commissioners, and what are their powers under various statutes. You need to understand how amendments work, and where to find notifications.

Did you know that labour is in concurrent list in the 7th schedule of the Constitution of India, which means both the state government and central government can make laws about labour and employment related issues? In that case, what if there are two laws on the same subject? Which law will prevail and why?

You even need to understand how to interpret complex legal text, and how to read up case law to find out what is not written in the statute!

There is a lot more to learn. You need to have a basic understanding of how the government and thereafter how labour law and related government departments work.

You need to know how to draft and negotiate policies and contracts

HR managers draft policies that impact entire organizations. Some examples: conflict of interest policy, sexual harassment policy, whistleblower policy. They do not only draft and get such policies implemented, but they also need to make the rest of the organization aware and aligned about the same.

Policies are still once in a while affair, what is even more common is drafting and negotiating employment agreements, standing orders, secondment agreements, contract labour supply agreements, consultancy agreements, vendor agreements of various types. 

It is not always cost effective or possible to go to a lawyer for every contract, and the organization will appreciate if you had the requisite drafting and negotiation skills. Also, it is not so hard to develop these. A few weeks of concentrated effort could make you really good at this.

Drafting dismissal letters, official warning, strictures and other formal communications with legal implications

This is a critical skill as you become more senior as an HR manager, since the job of firing people with or without cause will fall on you. You need to learn to prepare good documentation so that those who are getting fired do not get any room to bring false accusations or claims against you or your organization. 

This requires very careful drafting. For example, if the rules require that you have to conduct a hearing before firing someone, and you write in a warning letter that you would be fired without further notice if you break discipline again, this may lead to grave problems later as you are not telling this person about his right to be heard. You could instead say that we would have to institute appropriate proceedings against you or take appropriate actions against you, and that would have been legally kosher. 

Your drafting can show your intelligence or the lack thereof. And the well prepared always appear more intelligent. What if you systematically learnt this kind of drafting?

Reply to show cause notices and communication with regulators

Another place where HR managers or labour officers may have to draft formal communication is replied to show cause notices. Sometimes, there may be innocuous notices or request for information as well. However, if you handle them wrong, your organization may get into big trouble.

This is why organizations invest in teaching their labour officers or HRmanagers about such work, and that is where our courses like this one come in.

How to brief and assist lawyers acting for your organization

This is another very major skill. I strongly believe that those who are in the line of business can come up with better arguments and ideas about their own case than any lawyer can. Lawyers are more effective when they get good guidance and high quality inputs from sophisticated clients.

That is why the HR manager is so important in labour and employment litigation. The HR manager has seen the birth of the issue and seen it snowball towards litigation. She or he knows exactly what led to various levels of escalations, and own the facts better than anyone else. 

I have seen HR managers really turning around cases that were otherwise going to be lost. Simply by sharing appropriate facts, documents and ideas they can rescue cases that are almost lost.

How would your organization value you if you could do this in the course of your work?

How to conduct hearings for misconduct, disciplinary issues, loss of confidence or sexual harassment

HR managers are also responsible for conducting various kinds of hearings and disciplinary proceedings. Some of these are statutory, such as sexual harassment proceedings against any employee. Others are stipulated by internal guidelines. However, it is very important to conduct these within the boundaries of law. For instance, following the principles of natural justice would be of paramount importance.

You need to also maintain proper documentation at every stage because such matters often lead to litigation. Wrongful proceedings can lead to court cases and hefty compensation payouts. Courts can reinstate a fired employee with back wages, in which case the organization may have to cough up a few lakhs or even crores, without having received any service! 

Often while a court case is pending, the court may order organization to pay a subsistence allowance to the complainant, because employee is able to establish a prima facie case of negligence, bad faith or rash actions on the part of the employer. If you were the HR manager who handled that proceedings, imagine the ignominy that can follow!

Where can you learn these things?

Did you know that there is a course for that? We have trained hundreds of HR managers, labour officers and government officials on labour laws. Check out this labour law course. We teach each of the above skills and a lot more.

Meanwhile here are the other courses open for enrollment:

The post What do Indian HR Managers Need to Learn about Labour law? appeared first on iPleaders.

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

Your ability to fulfil your dreams is based on achieving big goals in your life.  Many people fail to achieve their dreams not because they are incapable, but because they abandon their pursuit of big goals. 

When you pursue big goals, what indicators can you use constantly to identify relevant actions and track progress everyday? 

How can you identify and deal with the most important tasks? 

How can you stay connected to the bigger goal everyday, despite engaging in routine or monotonous work? 

Irrespective of whether you are working at a job, running your own business or pursuing your passion, you will need to deal with this question. 

Conventional wisdom states that to achieve big goals, one must be able to break them down into smaller milestones, and work on them everyday.  

However, this step is insufficient to identify what are our daily priorities, and what results must be produced everyday to make progress. 

For example, assume that you want to build a full-service law firm in 5 years with a 50 crore turnover and 100 international institutional clients which regularly give you work. You cannot predict each step of the journey on your first day. 

Now, we can identify some key milestones to achieve this goal. One key milestone could be to build a website, or another one could be to find a partner, establish an office, earn revenues of 1 crore in the first year, and triple revenues every subsequent year.  

Now, breaking down the milestones above into daily deliverables can be very complex. 

Moreover, you will need to pursue more than one milestone at a time. For example, you may be simultaneously working on building networks that leads you to getting the kind of work you want to do while trying to keep your partnership intact. You may struggle with keeping quality of the work done by your firm consistent while trying to hire talented lawyers and grow your team. You may struggle to manage your finances well while you are still aspiring to grow fast. You will not only do client work but also have to invest time and resources towards training your associates and tracking their performance.

Given this situation, how will you assess which actions you should take everyday? 

It is possible that instead of achieving the goal in 5 years, you take 8 years or 10 years. However, the pursuit and the journey still remain worthwhile.   

However, while you are on the path, how can you know that you are doing the right things, proceeding in the right direction and making the right kind of progress?

In the beginning, when you will struggle with the very basics, your big goal of building a law firm with INR 50 crore turnover may look very different and also disconnected from the current status of things, and the ongoing tasks, such as finding an office, onboarding a partner, working on current clients, ensuring profitability of your practice, etc. 

Most people do not spend time and energy connecting their everyday tasks with their bigger goals. They cannot identify how their actions today will stack up to the big goal they want to achieve. 

This leads to the death of the big goal. Over time it evaporates. When you forget your dream, you are not going to just stumble upon it by chance.

I recently recognized certain barriers which I personally faced in this department.

• Doubting that I can achieve the big goal (even an iota of doubt can destroy everything)
• Not trusting that the steps I have identified are correct to lead me towards the goal
• Worrying about other steps rather than working exclusively on what I currently have at hand. 

The doubt in my mind let to uncertainty and anxiety, and lack of faith in the steps made me experience tremendous pressure while working. 

Although I produced results, working itself was very exhausting. 

People around me did not notice this because I am generally very good at what I do, but I felt that there must be a way to produce results with greater ease. 

Accidentally, on one of those days when we were taking a training session on drafting and the legal system of India for HR managers at ITC, I was really busy with teaching and could not keep track of what was happening in our Delhi office.

To deal with that situation, I accidentally chanced upon a new question:

What will move the needle today?

I could deal with what was urgent in a couple of hours, and I realized that I did not have any other emergency. 

I thought of asking myself this question everyday at work, not when I face emergencies, but with respect to achieving my goals on a daily basis.

What will move the needle today? [in connection with my goals]  

I must answer this before starting any activity.

I am practicing stopping all work, getting off my computer and mobile phone if don’t answer this question. This means that there are many times when I am perplexed and have no idea about what I must do next. 

But it enables me to think and identify what is relevant. 

Finding the answer to this question every day and stopping an activity which makes me ‘busy’ is very difficult. It requires me to think. It is easier to say this than to implement it in my life.

A lot of times the tasks at hand are relatively easy and not time-consuming. For example, having a difficult conversation may take only 15 minutes, but it may move me forward in a big way. 

Until I consciously identified that it was necessary to move the needle for the day, I could avoid the conversation. 

Not anymore, because I needed to move the needle. 

This question also forces me to think of how everyday tasks are steps to achieve the big goals, which I can miss otherwise. 

Now, most people are ‘busy’ at office work, college projects, examinations, moot courts or some other task without answering this question. They spend days, months and years at it. They are too busy to even answer this question. 

It enables them to avoid performing the tasks that matter. For example, learning a new area of law, or negotiating an increase in salary, quitting your job, asking your boss to give you more work, etc. 

Avoiding this question will lead to dissatisfaction, slowdown, boredom, frustration, anxiety or similar unproductive emotions over time. 

For years, I thought that to realize ambitious goals, such as improving the state of legal education in India, I must work for 18 hours everyday. 

Guess how I fared at this standard? I used to fail everyday, except maybe once in a month. 

It felt horrible, and my self-esteem suffered. Imagine how it would feel to fail every day to fulfil the standards you set for yourself.

I realized that the standards themselves were incorrectly set. 

I had not considered the right questions when I was setting the standards.

Now, I can experience the satisfaction of making progress in even 3 hours of work. This does not mean that I need to work three hours per day, but it means that I can make a lot more things move in an 8-hour work day than I could earlier with a 12 or 14 hour work day. 

How could I achieve results in 3 hours which I was unable to achieve even in 12 hours? What is the explanation for that?

There were many difficult tasks I was avoiding doing, and to justify my avoiding them I took up a lot of other tasks to fill up my day.

But some key aspects did not move. The regret of not doing what was difficult but necessary left me empty. 

You can only imagine how my life has started to improve after discovering this question.  

I am able to free up time to spend on my self-development. I can take out time to relax and rejuvenate. 

It enables me to be present to the situation when I am interacting with my friends, discussing a new project whose future is uncertain with a senior, or interacting with my wife. 

I am not so rigid about when I work and when I rest. I can work at odd hours, and rest in the middle of work if I am tired. 

As I practice this method more rigorously, I intend to improve the results I achieve in an 8 hour workday even further. 

Hence, I thought of sharing my discovery with you. 

I know that many working professionals face stress at work. Entrepreneurs struggle to find out what tasks must be done today and what can be parked for later. Even college students face this kind of pressure, with respect to exams, project submissions and other college activities. They are unable to spend time working on their passion, at internships, or even to pursue their own learning.  

Many of you believe that you cannot take out one hour per day to study a Lawsikho course because you are preoccupied with college or office work. Some of you even worry about what will happen if you are unable to submit assignments for a month because you were working on the closing of a transaction, or an audit assignment or preparing for exams. 

My suggestion is the same: stop all work. Answer the question: What will move the needle today?

Here’s another tip to ensure you always answer this question successfully – there is always something that that can move the needle today. You can find it if you apply your mind and think hard enough. 

This discovery has altered the way I visualize my day.

Do share with me how you plan to apply this in your life, any results or challenges you face in the process by replying to this email. 

If one of your goals is to learn the law, you can move the needle today. The following courses are open for enrolment: 

Executive Certificate Courses

Certificate Course in Legal Practice Development and Management

Certificate Course in Advanced Criminal Litigation & Trial Advocacy Certificate

Certificate Course in Consumer Litigation 

Certificate Course in Trademark Licensing, Prosecution and Litigation 

Certificate Course in Securities Appellate Tribunal (SAT) Litigation 

Certificate Course in Companies Act 

Certificate Course in Labour, Employment and Industrial Laws for HR Managers 

Test Preparation

Judgment Writing and Drafting Course for Judicial Services

The post Don’t Forget to Answer This Question Every Time You Are at Work appeared first on iPleaders.

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

I remember the time when I was planning to quit my job to start working for iPleaders full time. It was a very hard decision to make, given that I had very little savings and I had no idea when I would be able to start paying myself a salary. Not more than 3 months of rent and food expenses!

However, I had it easy, because I had planned my transition from a job into law practice over a long, long time. I had a system up and running. I even had a team to work with. I and my co-founder even worked on and negotiated a major university partnership for over 18 months and got it ready.

When I left my job, even the website of the new business was up. There was machinery in place for us to succeed. And that is why in our first 3 months of operations, what we did was enough to get tens of lakhs of revenue rolling in. That gave us the confidence, stimulus and resources to keep going.

I am a big believer in planning out your transition from a job to a business or independent practice. If you plan it well, prepare for months or years in advance, and take the plunge when the time is right, your chance of success goes way up astronomically.

Unfortunately, I do not see most lawyers do that. A lot of them face a lot of unnecessary struggle and uncertainty simply because they do not plan ahead before starting on their own. 

I can’t imagine how overwhelming it would have been to start from scratch actually after putting resignation. Because a certain amount of ground work was already done, at the time of leaving, I had no problem whatsoever to hit the ground running.  

On the flipside, there are others who keep planning and planning, and never take the plunge. 

That is perhaps even worse. At least those who take a plunge without a plan will be forced to find a workable strategy sooner or later, dictated by market realities. But those who never start due to fear of failure or analysis paralysis stand no chance at all.

The best case scenario though, is that you start investing a little bit of your time, say maybe an hour a day, into your future independent practice or business. How can you do that?

This is a question I frequently get from even experienced lawyers with many years of experience, who now wants to shift from their jobs to an independent set up, offering advice and legal consultancy. There are also younger lawyers who aspire to set up their own law firms. While passion, interest, experience are all very essential ingredients for success, it is hard to come by without preparation. 

Also, luck favours the well prepared. 

Let me share some ideas on how you can prepare well for going independent, that are field-tested by me and my students.

Narrow down your choices

What are you actually going to do? What kind of clients will you service? Why will those clients come to you rather than go to other more established lawyers? The answer can’t be I am cheaper – nobody hires lawyers for important legal work just because they are cheap!

It is not enough to even narrow down the area of practice. You need to also narrow down on the services you will provide, whether you will charge premium rates or mass market rates, whether you want a few high margin matters or volume of low margin matters, whether you will focus on a geography or not, whether you need to have an internet presence or not, etc. 

There are a lot of choices everywhere. If you just jump in without considering various alternatives, during the heat of battle it is unlikely that you would even have the time to dwell on critical decisions and choose wisely. 

It is best to evaluate these choices over time, speak to people who have already tested the waters and made progress, maybe read some books on the subject and take up a legal practice development and management course like this so that you have a workable plan.

When I left my law firm job to work at iPleaders, we were ready to launch a course, and had even some chapters ready. There was no doubt on what we were going to do, or what kind of people we would cater to. That clarity really helped to take rapid action, and results followed!

Market research and viability testing

This is not something I did very well before starting. My understanding of the market was full of assumptions, but I got a few things right intuitively, and from experience.

When we started iPleaders, we thought that our primary buyers would be entrepreneurs and businessmen. However, in reality, the biggest chunk of buyers of our first courses, on business law and entrepreneurship administration, turned out to be law students and practicing lawyers. 

That first experience with the marketplace also worked like eye opening market research. However, there were indeed business professionals and entrepreneurs who also signed up. We knew this would happen based on our experience of taking legal workshops for engineers and managers and also based on our experience of helping entrepreneurs navigate some tough waters.

It is important to see if there is a real market for what you want to do. It is great if you want to be a sports lawyer, but you need to see if it is viable for you to survive by working as a sports lawyer. Is there enough work? What kind of work is that? How much are clients paying for it? How many other lawyers are doing the same work? Are they being paid well.

Contrary to popular perception, it is not always great that you have no competition. At times having no competition just means that there is no attractive market to tap into. There are no space lawyers in India, say, and that is probably because there isn’t enough work for a space lawyer to do. 

On the other hand, my market research suggests that there is a tremendous market for lawyers dealing with motor vehicle cases. Pay is high, competition is low because high calibre lawyers think that such cases would undermine their status, but the volume of such cases is really high!

There would be many other such areas with amazing opportunity for new lawyers that are up for easy pickings.

Developing a business model: What would be your USP?

I remember developing a business model for ClikLawyer. It was developed over two sessions of brainstorming and involved 3 people. We zeroed in on 3 high frequency, highly paid areas of work in law, from a shortlist of 16. These were money recovery in employment matters, recovering payment on behalf of unpaid vendors and money recovery in property cases where builder failed to deliver.  

We also identified mutual consent divorce, trademark opposition, railway compensation, PF money recovery, insurance claims etc as other high frequency, high ticket cases but did not find them to be suitable at the kick off stage. We wanted to get to these at some point too. 

The ones we chose were based on some parameters. Apart from our own abilities and understanding, we also took into account how we would be able to recover these amounts.

After that, we did a few such matters at a super low cost, trying to to just understand what it takes to fight these cases. We discovered that certain matters can be sorted out with initial legal notices and others led to quick settlement after filing certain complaints and suits. 

After we identified these buckets, we put all our energy behind these alone, in exclusion of all else. This strategy really paid off!

We also had to figure out how much we spent on these matters on an average, how much we could charge, and what was the customer acquisition cost. We had to figure out how much we will pay lawyers to do these matters, and what would be the mode or manner of payment from clients. 

One of the trickiest things to get right was pricing.

These are all business model decisions. It is advisable that you begin the research and experiments long before you quit your job and start on your own. If you can figure out the business model through trial and error and experiments before you go out in the field, you are likely to do far better than the rest.

Please figure out how to develop a business model by identifying and aligning yourself with market forces. It should be one of your biggest priorities. 

To get it right, answer the following questions: What do you do for your clients that others cannot do as well as you? What are your USPs? Why would clients keep coming back to you? What are you able to give that your competitors can’t? Why can’t copycat competitors drive you underground with undercutting and unfair practices?

Go-to-market strategy: what would be the steps that can set you up for success?

Knowing your service and business model is one part, but how will your ideal clients figure out that you exist and that they should hire you? This is where go to market strategy comes.

You could ensure that people get to know you through a great online presence, or by holding seminars, or being a regular on TV debates on your area of expertise. 

As long as people are getting exposed to your ideas, content and success stories, your go to market strategy is working.

Our go to market strategy in LawSikho is to give away amazing and valuable content away all the time, so that we are recognised as thought leaders in our domain of work. We also keep in touch with our subscribers with regular newsletters which are widely read. 

What would be your go to market strategy?

When I started ClikLawyer, I relied a lot on my existing network to get referral work. I had a task that I must call 5 people I know every day, including people I haven’t spoken to in a long time. I would reconnect with them, and at the end share about my new venture and the kind of work we were doing. I would also mention it to them that if they knew anyone who could benefit from a service please introduce.

This worked like magic because having unpaid dues is a very common thing in India. From making 30 calls a week, I often got 10-15 referral leads, of which a handful converted into paying clients. In the initial days, when we were trying to get going, this was a big boon!

However, this may not work for everyone. Depending on what you want to do, you may need to network with a lot of CA or CS professionals. Maybe you need to organize events for the kind of professionals you are targeting as ideal clients. Maybe you will start a blog for them. 

For instance, if I was working a lot on legal metrology act, and my target market was in-house counsels, I would start a blog that keeps such counsels up-to-date on developments in legal metrology cases apart from answering all the frequently asked questions that such counsels may have regarding legal metrology act.

What will you do? What would be your go to market strategy?

Can you moonlight while still working a job to test the market?

This is a great idea, especially if you do not plan on doing something that competes with your current employer. Let’s say I work in a law firm, but I want to start a business around mental health of lawyers. Or perhaps I want to start a legal clinic catering to villagers. There is no conflict with the employers, of course. In that circumstance, it may be a good idea to do the new work you want to do eventually full time, as a side gig for some time.

This allows you to figure out what are the challenges of the work, what works and what doesn’t work, and how you need to prepare for the plunge.

A lot of lawyers will allow you to take independent matters while you are working with them as a salaried junior. This is also a great way to cut your teeth before you take on the giganticus. You should look for jobs which will allow you a few hours of independent work every week, so you can build your profile, brand and abilities to operate independently on the side.

Can you start an organization before you actually quit?

You can start a not-for-profit. You can start a company where you can be a sleeping shareholder, and employ others to get the business off the ground. This is not a bad idea if you have the funds to do this. I strongly recommend that you consider hiring employees to work for your organization to get the initial ground work done, while you may be still working a high-paying job.

I had started Intelligent Legal Risk Management Solutions LLP while I was still in college, along with Abhyuday, my co-founder. When we were working in a law firm in Mumbai, we had some friends and employees who kept the work going even in our absence. I used to have weekly calls with them, participated in some brainstorming. However, the fact that the work wasn’t stopped in our absence meant that we did not have to start from scratch when we quit our jobs.

Our blog kept growing, websites and user interfaces were developed, and a rudimentary team was in place for us to work with when we quit our jobs.

I highly recommend this to those in jobs who are looking to start something independently. 

Can you build your brand up before you quit?

Can you write articles? Can you improve your google footprint? Can you create an awesome youtube channel on the topic of your interest? Can you meet people who can refer work in future or help you to get the work done? 

Can you start monthly meetups for quarterly events in your city, where your future clients will gather? Can you get speaking opportunities that would help to build up your brand? Can you publish a book? Can you start volunteering in some non-profits?

There are a lot of things one can do to strengthen their brand even while they are in a job. Which ones will you do? Reply and let me know.

Can you have an anchor client or a big order in queue before you quit your job?

When I quit my law firm job, it was not a hard decision to make at all, because a deal with a big university had just come through. It gave us some space to stand on, and some amount of confidence. Without that, it could have been hard to get started and build momentum. We do not need any university degree or brand to run our courses today. However, when you are just getting started, it can be a big help.

Can you have a big client or an order in the queue that would give you similar cushioning or comfort?

Are there any skills that you want to learn before you quit and go independent?

This is a serious question. The reason I went to work for a law firm was that I wanted to see that world before going independent. I strongly suggest people planning to start up that they should work in a startup for 2-3 years at least. I would also suggest those planning to do independent practice that please work under a bring young independent lawyer for at least a year to get a sense of what the work and the life is like. If you want to set up a law firm, try to apprentice with a law firm founder for at least 6 months. 

However, in reality, learning from others can be quite difficult and impossible given how jealous and stingy most lawyers are with respect to sharing their knowledge and skills. They are afraid that you may compete with them. That is unfortunately short sighted.

In any case, you may want to brush up on various legal skills also. In that case, I would urge you to check out LawSikho.com, where you may find something that is in the line of your interest. Also definitely check out our course on Legal Practice Development and Management.

Do you need to build a financial corpus before you start?

This is also something to consider. I had 3 months of rent and food experience when I started after leaving my job. Then I did some freelance work to keep that corpus intact. It was not that hard really, because I was able to drastically reduce my costs. 

However, these things are to be taken seriously. You need to have a few months of sustenance before you quit. However, I have also seen people who have many years of living expenses saved up already unable to quit in fear. This is quite common.

Please do not wait forever to save up a humongous amount of money before you try your hand at going independent. 6 months of living expenses in the bank is quite good to get started. 1 years expense already saved in the bank will be a luxury. Anything more than that is not quite necessary in most lines of work.

So are you going to start on your own?

When would that happen? What is stopping you? What excites you about starting on your own, and what scares the hell out of you? 

Please share with me. Looking forward to seeing your response!

Meanwhile here are the other courses open for enrollment:

Executive Certificate Courses

Certificate Course in Legal Practice Development and Management

Certificate Course in Advanced Criminal Litigation & Trial Advocacy Certificate

Certificate Course in Consumer Litigation 

Certificate Course in Trademark Licensing, Prosecution and Litigation 

Certificate Course in Securities Appellate Tribunal (SAT) Litigation 

Certificate Course in Companies Act 

Certificate Course in Labour, Employment and Industrial Laws for HR Managers 

Test Preparation

Judgment Writing and Drafting Course for Judicial Services

The post How to Prepare for Launching Your Independent Practice While You are Still in Your Job? appeared first on iPleaders.

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

A few days back, I was reading about the Industrial Revolution in Europe when I came across the story of ‘knocker-uppers’. It was a profession in Britain and Ireland that started during the Industrial Revolution. This was prevalent even in the 1920s when alarm clocks were priced exorbitantly and were not reliable. A knocker-upper’s job was to rouse sleeping people so they could get to work on time.  

They would wake up their clients by tapping on their bedroom windows. On the street outside, walking to the next customer’s house would be a figure wielding a long stick.

Fascinating, isn’t it?

The “knocker-upper” was a common sight in Britain, particularly in the northern mill towns, where people worked shifts, or in London where dockers kept unusual hours, ruled as they were by the inconstant tides. 

The knocker-uppers used to be paid decently well, since they were more reliable than the clocks of that time and undertook the task of waking people up for their jobs, which was considered as a really strenuous job with a lot of importance attached. After all, it was because of them that people were able to reach their workplaces on time and earn their livelihood.

However, by the 1950s, the clock technology improved and was more accessible to the European middle-class. The profession of knocker-uppers, therefore, saw its nadir and all of them lost their jobs. All at once. So much so, that, most of us haven’t even heard of the existence of a profession like this. 

One of the most in vogue job became redundant in a jiffy. It is believed that it still did continue in some pockets of industrial England until the early 1970s, particularly in the industrial areas around Manchester and the last knocker-upper retired from the job in 1973 in Bolton.

This may remind you of the plight of typists. Once considered a well-remunerated high skill job, typists vanished as computers became ubiquitous. There used to be typing schools in every neighborhood, which had to shut down too. You may still find a handful of typists sitting outside courts typing out legal documents, but it is only because they have no other skills and they are incredibly cheap. They are a testimony to the falling from grace of the profession of typists.

So what do we really learn from this story? 

Technology has been impacting employment, businesses, and professions like never before. Today it may seem like a very recent issue, causing much hue and cry, but it has been always around. Even a century back, it claimed victims.

Automation, digital platforms, and other innovations are changing the fundamental nature of work. Many activities that workers carry out today have the potential to be automated. While it is a positive change, given the promising future of the digital economy, the disruption in the employment market is an opportunity as well as a challenge.

The question for each one of us to answer is simple. Do we really have the kind of skills that aren’t replaceable with the next wave of technology? As artificial intelligence, automation, and digital solutions alter the nature of work, will you still be in demand? What are the skills that you should be investing in, in order to stay ahead of the curve?

Are you spending time learning to do things that can’t be done by every average lawyer? 

Are you learning skills for which you can charge a premium? If you focus merely on doing the minimum, doing what everyone else does, not investing in learning the skills of the future, are you doing justice to your career? You may be able to survive for a decade doing what lawyers used to do twenty years back, but are you at risk for failing to upgrade yourself?

Can junior lawyer charging less, or a machine or automated software replace what you do, or do it with better efficiency and in less time?

Let me give you two examples. Today law firms have invested in software that make due diligence a lot easier. What used to be done by 4 junior lawyers, can now be done by 1 using artificial intelligence software. Hence, junior lawyers who want to work in a law firm, need to have skills to do a higher level of work to get a job in a law firm. The grunt work that was relied on for their training is fast disappearing.

Another example is that of access to information. There was a time when a lawyer had a huge advantage over his clients because legal information was not accessible by common people. Information asymmetry alone made the lawyer’s service valuable. The lawyer spent capital on obtaining AIR and SCC volumes, or other reports, which were very expensive. Clients could not afford the same and hence had to rely on the lawyer blindly. Even a notification would only be available to certain lawyers, and clients would have to flock to that lawyer.

Today, case law, statutes of all kinds, notifications and even commentaries on law are available online, for free. Clients do their own research before approaching a lawyer. The lawyer, therefore, cannot rely on information asymmetry any more, to satisfy a client. They need to add real value in other ways. Clients no more pay for a mere meeting to hear some legal gyan, because they can look it up on their own.

Can you imagine how much this has changed the dynamic between lawyers and clients in the last 10 years? Lawyers who are used to how things were in the past find it hard to adjust to this new reality, and in fact, continue to give outdated advice to junior lawyers.

If you’re a lawyer, no matter how busy you are, stop giving excuses to yourself that you do not have time to learn new skills. It is fast becoming a question of survival. New industries are coming up with lucrative opportunities. New forums are being set up do deal with new challenges. Can you afford to give all that a miss?

What are the specialized skills that you can develop that could double your income in the next 12 months? I bet there would be something. Only if you stop and take time to look around!

We at LawSikho prepare lawyers and professionals to deal with the legal challenges of the future. The people we train would never face the fate of the knocker-uppers, or the lawyers whose only leverage was that clients did not have access to case law databases or Google. 

If you want to learn practical legal skills that will help you to develop a future proof career, here are a few of our courses that have an approaching deadline

The post The Story of Knocker Uppers and a Lesson for Lawyers appeared first on iPleaders.

This article is written by Abhyuday Agarwal, COO, LawSikho

Most people don’t want to imagine getting the job after going for an interview.

What if they fail to make it? All their dreams would come crashing down.

Naturally, they would feel like failures or idiots for having those dreams. So it is better not to dream at all.

Really? How is it better?

In college, I was desperate to get a foreign law firm job, and I really bombed three foreign law firm interviews (Allen & Overy, Herbert Smith and Ashurst) after getting shortlisted in the application stage. This was in my fourth year.

I was crestfallen. I know others in my batch who met a similar fate. It took them a couple of years to recover. This was the dream they were cherishing for a while, and it came crashing to the ground.

I felt that I will no longer have the experience of working on cutting-edge corporate deals. I was crestfallen.

Next year, I obtained a job offer from Trilegal (and two other law firms) on day zero, the first day of campus recruitment in college, but the scar of failure remained.

While in college itself, I had decided to start working on the Indian market to explore the idea of ‘legal risk management’ with Ramanuj, my friend and batchmate.

I wanted to be back to working on the cutting-edge of things in my own way, so I chose to explore a new way in which law can be used to improve business. We started something working on an idea of legal risk management, which later translated into practical legal education delivered online, iPleaders and then Lawsikho.

Back then, it was a rebellious attempt to reclaim a dream. (Some years later, I could fully see the potential of it as I delved deeper into this work.)

But the question remains still remains – was I a fool to dream of making it and working in a foreign law firm in London? Had my future crashed to the ground?

Yes, it had crashed. This is what I thought at that time.

At work, I have had many more business meetings with potential collaborators, applied for different kinds of awards, made pitches to potential investors (when we were considering raising investment but decided against it later) and I have been rejected many times, and been successful on some occasions too. Initially, some of the rejections hurt, especially when people said that what we have started is just a ‘lifestyle’ business.

These meetings were very similar to interviews – tense, filled with uncertainty and nervous energy. A lot depended on the outcome of the interview.

My thought process changed after meeting Sanjeev Bikhchandani, who is the Vice-Chairman of the Info-Edge group. He had founded Naukri.com and several other companies is a co-founder of Ashoka University and has been a mentor to some of the most successful Indian startups. He discovered, mentored, invested in and helped to build companies like Policybazaar and Zomato. He is not just one of India’s handful of billionaires, he is also considered a pioneer of the Indian internet industry and commands the greatest respect in the highest echelons of corporate India.

After a 20 minute meeting where I showed him our work, he said, “This is great work. Well done. Keep it up.” He also agreed to mentor us.

As I returned from the meeting, tears flowed down my face. Tears of joy and satisfaction. I really felt that I had accomplished something worthwhile.

That day onwards, my faith in what we were doing increased manifold. I had experienced tremendous recognition for my efforts and hard work through his compliment.

Since then, I have imagined one thing before every meeting – what happens if the meeting succeeds. What happens if I win. I would do this even if I failed.

I noticed that rejection does not hurt so much, because the dream is my own, and it doesn’t crash.

I can still nurture the dream, and achieve it in another way.

I also realized that the enjoyment I derived from dreaming was completely mine. It did not get destroyed with a negative result. The time I spent dreaming will remain unchanged in the past even after my failure. Failure then only hardens my resolve and sharpens my desire for achieving my dream.

In athletics, a similar concept of creative visualization is used by athletes. They imagine success before they start a race. Legendary swimmer Michael Phelps was taught to imagine his entire swimming lap by lap, stroke by stroke, in his head, every night before he slept. That is how he primed before any competition too. He would close his eyes and visualize himself swimming the perfect laps, and winning.

However, every athlete who participates does not win the race, even though they follow this technique.

One must learn to deal with failure if one is to harness the full power of creative visualization and win the most.

Definitely, failure in any interviews amounted to the closure of one door, but it did not end the dream. While I did not become a global corporate lawyer working in a magic circle firm, many of our students are now working in international firms.

Hundreds are working as corporate lawyers in India’s best law firms. And I am building the greatest legal education powerhouse in the world, doing breakthrough work that has never been done, learning and growing every day. On my own terms!

The source of satisfaction is the fact that I take pride in the work we do. We do what has never been done. We design courses that are cutting-edge, which deliver results in an obvious way, and that result can be measured. And we keep improving ourselves and learning from failures to stay on the cutting edge of innovation in legal education.

I take immense pride in the fact that we are not just leading the pack in legal education, but we are way ahead of the curve. No competitors have ever built anything even remotely close to what we offer.

I take pride in our mission itself, which is to enable people to become extraordinary lawyers and business leaders, and that we are at it now. I visualize success even in this. I imagine the day when the legal industry will be dominated by our students who would be far more competent and knowledgeable than their peers. How amazing it would be!

I am working on impacting how the law is learned and practiced in India through LawSikho. It is the biggest game I have ever taken on.

Whether you are concerned about being a first-generation lawyer, or not having a large network, or not being from a top national law school, or at the top of your class, or for any other reason, remember that you still have a shot at acing your dream interview.

You still have a shot at doing great work. At making a difference and being known for it. A shot at living a great life.

A shot worth taking.

If you want to develop some cutting-edge practical skills as a lawyer, here are the courses open for enrolment:

Executive Certificate Courses

Certificate Course in Legal Practice Development and Management

Certificate Course in Advanced Criminal Litigation & Trial Advocacy Certificate

Certificate Course in Consumer Litigation 

Certificate Course in Trademark Licensing, Prosecution and Litigation 

Certificate Course in Securities Appellate Tribunal (SAT) Litigation 

Certificate Course in Companies Act 

Certificate Course in Labour, Employment and Industrial Laws for HR Managers 

Test Preparation

Judgment Writing and Drafting Course for Judicial Services

The post What Happens If You Win appeared first on iPleaders.

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

Do your expectations and dreams far exceed what you can do in reality today?

I hope so. If your dreams are just as much as you can actually do, then you have stopped growing. Far too many people reduce the size of their dreams in order to match with their current abilities. That’s just unfortunate.

Yes, if you dream bigger than your capacity, you will face many discomforts. You will face many heartbreaks. You will face ridicule sometimes. You will certainly face many failures.

However, if you manage to hold on through all of that, if you do not give up, if you continue to fight, your capacity will expand. Your muscles will grow. Your mind will expand. You will discover secrets others have no idea about because you have gone where others seldom dare to go. You will come up with solutions you never thought of.

This does not mean that you make it difficult for yourself. Of course, you must find the ways that make it more likely that you reach your destination. You have to find allies, you have to find gurus, you have to find resources along the way. You have to train your body and mind, hard.

But it all starts with an inspiring dream that is out of your reach. That is what makes one stand up and strive for what seems impossible. That is how all growth happens.

This is how human beings have built civilizations.

When we started LawSikho, we dreamed of creating extraordinary lawyers by giving our users practical training. It seemed very hard when big universities with lots of resources fail to do so, how will we go beyond that with online courses?

It was a big challenge. The biggest part of the challenge was this: how do we make sure people actually study and do the activities they are supposed to do in order to benefit from the course?

We make great course material. Check.

We make interesting exercises that are realistic and challenging. Check.

We have evaluators who give you personal feedback so you can improve your skills week on week. Check.

We have weekly live classes with top-notch lawyers to ensure unparalleled learning experience. Check.

But how do we ensure people are doing all the activities? How do we ensure that they are not dropping out, getting derailed by other events in life, and getting discouraged by the amount of work (8-10 hours a week)?

After all, even the gym is amazing, how many of you actually show up after subscribing?

But what if your trainers from the gym called you and coached you to attend regularly? What if they kept in touch over the phone and WhatsApp, and encouraged you when you felt down?

This is unheard of in the education industry, but we are actually doing it. Starting from August 2019, we are tracking the students who are not submitting assignments or completing their courses and coaching them on how they can complete their course.

After all, if they complete their courses and produce results, the impact will be visible. There will be success stories out there in the world. People would hear, the brand will grow.

So our highest priority has been the success of our users. And success stories have been pouring in.

So that’s the thing. With us, you know that you are not alone in your learning journey. We are here for you. We are here to remind you what you signed up for, and we will push you to excel.

Would you like to have us as your ally?

And remember, LawSikho is not just a business, it is our collective dream to start a revolution in legal education.

There are some amazing courses that are closing in a few hours from now. If you are interested in these subjects, do not get left behind.

Executive Certificate Courses

Certificate Course in Legal Practice Development and Management

Certificate Course in Advanced Criminal Litigation & Trial Advocacy Certificate

Certificate Course in Consumer Litigation 

Certificate Course in Trademark Licensing, Prosecution and Litigation 

Certificate Course in Securities Appellate Tribunal (SAT) Litigation 

Certificate Course in Companies Act 

Certificate Course in Labour, Employment and Industrial Laws for HR Managers 

Test Preparation

Judgment Writing and Drafting Course for Judicial Services

The post Out of Your League? appeared first on iPleaders.

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

What would happen if you begin to give your clients or employer much more than what they expect from you?

You stand out. You become remarkable. That’s one way to become a brand.

Let me give you an example. When I started ClikLawyer, I introduced something a little unusual. We specialised in money recovery. We did a business model tweak. 

We said for the money recovery assignments we take up, as a company, we would take 3% of recoverables upfront. And then we will take certain pre-determined and defined steps to recover the money. If we manage to recover, we get paid another 7%. We paid the lawyers we then engaged from our pockets and dictated the strategy and tightly managed quality of work.

Those of you screaming at this point that this is illegal, you need to read up. This is very much legal, and this is exactly how third party funding works today. 

It worked wonders. In 7 months we went from 0-8 lakhs per month in revenue, at which point I shut it down for personal reasons.

What succeeded? Clients did not expect someone to take responsibility for the outcome of their cases and get remunerated on the basis of results. It is something that most lawyers would resist. Also, it would be illegal for a lawyer to do it, which is why I set up a company to take the assignments first.

Anyway, we went beyond the standard expectations. And it worked like wildfire.

In LawSikho, we do it all the time. Breaking patterns and exceeding expectations is pretty much how we have become the leaders in this industry.

We started charging 20,000 for online courses when our competitors were offering a whole library of courses for Rs. 1000. So we had to deliver much more value than the market was used to.

We introduced live video classes. We introduced weekly exercises and personal feedback for every learner. When we did this, the industry thought we are mad, because personal feedback doesn’t scale! 

We, on the other hand, said may as well it be, we must do it. How else can we train lawyers to do better work if we don’t give personal feedback?

Yes that means we had to hire and train an army of lawyers to be evaluators. But it’s worth doing that rather than just giving users a bunch of videos to watch, text to read and an exam at the end. 

We went the extra mile to make our courses interactive. The rest of the industry is yet to catch up. Not even the biggest universities have managed to crack it yet.

There are other ways in which we tried to exceed expectations too. We are the only player in online legal education that gives you a money back guarantee. You can use our course for full one month and then get your entire money back if you did not like it. Here is the link of the refund policy.

Were we scared before launching it? Sure we were. But till date, only 3 people who qualified for it asked for a refund. Out of a few thousand!

We exceeded expectations with our Master Access program too. To understand how, you would have to go through this page.

There are other things we have tried and failed at. One of these is arranging formal finance options for students to buy our courses. It has not worked well at all. We would continue exploring other ways in which we can exceed your expectations.

However, we are always excited to break from the so called “normal”.

What could you do in your work to exceed expectations and break from the normal? How would it play out if you did? Please respond and let me know your thoughts.

Also, I would like to remind you that the following courses are closing in a few hours:

Executive Certificate Courses

Certificate Course in Legal Practice Development and Management

Certificate Course in Advanced Criminal Litigation & Trial Advocacy Certificate

Certificate Course in Consumer Litigation 

Certificate Course in Trademark Licensing, Prosecution and Litigation 

Certificate Course in Securities Appellate Tribunal (SAT) Litigation 

Certificate Course in Companies Act 

Certificate Course in Labour, Employment and Industrial Laws for HR Managers 

Test Preparation

Judgment Writing and Drafting Course for Judicial Services

The post How Would You Break from the Normal? appeared first on iPleaders.

ABOUT ARTICLE :

This article has been written by Lalit Rajput. It contains various Compliance requirements under Statutory Laws. Compliance means “adhering to rules and regulations.” 

Compliance Requirement Under 

1.   Income Tax Act, 1961 
2.   Goods & Services Tax Act, 2017 (GST)
3.   Other Statutory Laws 

4    Foreign Exchange Management Act, 1999 (FEMA)

5.   SEBI (Listing Obligations And Disclosure Requirements) (LODR) Regulations, 2015
6.   SEBI (Depositories and Participants) Regulations 2018)
7.   SEBI Takeover Regulations 2011
8.   SEBI (Prohibition of Insider Trading) Regulations, 2015
9.   Companies Act, 2013 (MCA/ROC)

• COMPLIANCE REQUIREMENT UNDER INCOME TAX ACT, 1961

• COMPLIANCE  REQUIREMENT UNDER GOODS & SERVICES TAX ACT,  (GST) 2017

Key UPDATE

2019. a) Due date for GSTR-9, GSTR-9C and GSTR-9A for FY 2017-18 is further extended till 30th November 2019.
2020. b) Last date for filing of intimation, in FORM GST CMP-02, for availing the option of payment of tax under notification No. 2/2019-Central Tax (Rate) dated 07.03.2019 (by exclusive supplier of services), to be extended from 31.07.2019 to 30.09.2019.
2021. c) The last date for furnishing statement containing the details of the self-assessed tax in FORM GST CMP-08 for the quarter April, 2019 to June, 2019 (by taxpayers under composition scheme), to be extended from 31.07.2019 to 31.08.2019.
2022. d) 37th GST Council meeting is expected to happen in Goa on the 20th of September, 2019. Nirmala Sitharaman, the Finance Minister, will chair this Council meeting. Matters to be taken:
2023. i) Council may look at the ITC treatment in the healthcare sector
2024. ii) Council is likely to review the present revenue position

iii) Council may or may not focus on the GST rate cuts concerning the auto sector

GST  Updates dated 31.08.2019:

COMPLIANCE UNDER OTHER STATUTORY LAWS

4. COMPLIANCES UNDER FEMA / RBI

5. COMPLIANCE REQUIREMENT UNDER SEBI (LISTING OBLIGATIONS AND DISCLOSURE REQUIREMENTS) (LODR) REGULATIONS, 2015

Quarterly Compliances

• Half Yearly Compliances

• Annual Compliances

• Event based Compliances  

6. SEBI (Depositories and Participants) Regulations, 2018

7. SEBI Takeover Regulations 2011

8. SEBI (Prohibition of Insider Trading) Regulations, 2015

9. COMPLIANCE REQUIREMENT UNDER COMPANIES ACT, 2013 AND RULES MADE THEREUNDER

NOTE ON DIR-3 KYC

MCA (MINISTRY OF CORPORATE AFFAIRS) HAS RECENTLY ISSUED COMPANIES (APPOINTMENT AND QUALIFICATION OF DIRECTORS) THIRD AMENDMENT RULES, 2019 AND THE COMPANIES (REGISTRATION OFFICES AND FEES) FOURTH AMENDMENT RULES, 2019 ON 25TH JULY 2019 ON “DIR-3 KYC”.

As per the notification issued on 25th July 2019:

1. E- Form DIR-3 KYC is to be filed by an individual who holds DIN and is filing his KYC details for the first time or by the DIN holder who has already filed his KYC once in eform DIR-3 KYC but wants to update his details.
2. Web service DIR-3-KYC-WEB is to be used by the DIN holder who has submitted DIR-3 KYC eform in the previous financial year and no update is required in his details.
3. Due date for filing the KYC form is 30th September, 2019.
4. Update on Filing the Form: Per day you can only do 10 Web- KYC from one login. Either wait for next day or use another Login.

 http://www.mca.gov.in/Ministry/pdf/ThirdAmendRules_25072019.pdf

• Due dates of ROC Return Filings

—————————————————————————————————————

This article is updated till 31st August, 2019 with all Laws / Regulations and their respective amendments.

———————————————-THE   END———————————-

The post Corporate compliance calender for the month of September, 2019 appeared first on iPleaders.

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

If you read our emails regularly, I assume you are interested in big, ambitious goals in life irrespective of the situation you find yourself in.

The bigger our goals are, bigger are the challenges life throws at us. There is no denying that only a few people will choose such a life – a life of adventure, thrill, and amazing rewards, but before anything else, a life of struggle.

Andrew Carnegie, who was the richest man in the world (wealth adjusted for inflation), wrote a book called The Advantages of Poverty. He was surely qualified to write the book, having started his life as child labour in a boiler room. His first job as an adult was of a peon in the railways. He credited the advantages of poverty for his becoming the richest man in the world of his time.

You should read the book sometimes, but the basic message was this: lack of money is an enabler, not a mere obstacle. As you overcome bigger and bigger challenges, one at a time, you grow from strength to strength.

The story of my life has proven the same to me. Every time I have embraced my struggles, I have grown. When I begrudged them, circumvented them, cursed them, tried to run away from them, ignored them, I have suffered and become weaker.

Another assumption I am making here just because you are on this list is that you want to drastically, radically and inexorably keep enhancing your legal skills, in order to become an extraordinary, legendary lawyer.

If that is so, you are going to appreciate what comes next.

In this context, I wanted to share with you today three concepts from the world of bodybuilding, specifically strength training. 

In strength training, there is a concept called supersets. Most people in the gym work out only one set of muscles at a time. When you do supersets, you move from one exercise to another without any gap between them. The exercises target different sets of muscles. For example, in my today’s work out, I continuously repeated these exercises non-stop for 15 minutes: pike shoulder push-ups, hanging knee raises, push-ups, wide grip pull-ups, and crunches. I managed to do a total of 6 rounds of these things in 15 mins.

One round was of a superset. 

What is the benefit of doing a superset? 

Have you seen people who have huge biceps and thin legs? It’s weird. It represents a lack of balance and proportion. You want to develop all your muscles, in proportion, and that is when you would look good.

It is kind of the same when it comes to your legal muscles. You need to develop an array of legal skills. To succeed as a lawyer you need to research, draft, think on your feet, argue – all at the same time.

The exercises you will do, in order to become better lawyers, therefore, need to resemble supersets. You need to practice using a number of diverse skills in combination, to solve a problem. Critical thinking and problem-solving skills are most critical for lawyers, but you can produce great lawyers only when you use them in combination with other skills.

Click Above

That’s what makes a lawyer’s job so difficult, and therefore well paid.

Legal training needs to reflect that. However, remember your classes in law school? At most, they tested you for your memory, analysis or ability to crunch information. Usually, one skill at a time. You may have to understand and remember some legal concepts and be able to write about them in exams or talk about them in a viva. You may have written some projects, which develop some research, analysis and writing skills. But even for the best students, law schools rarely prepare you for real-life legal work, simply because you never get to experience the roller coaster for real-life legal work!

In our courses, we wanted to remedy that. And we draw inspiration from the concept of supersets. We give two assignments to our students of premium courses every week, which they have to solve and submit to us. And these exercises simulate real-life legal assignments, that you may get from a client or from your boss in a respectable legal job.

That is exactly where we include supersets in our courses. The exercises you do are realistic and test many different skills you have at once!

We especially focus on the following: the ability to research, competent drafting, critical thinking, problem solving and articulation. We also often teach how to break down complex challenges into small manageable chunks. We focus on negotiation and strategy a lot in our advanced courses because these are the skills that fetch a premium in the legal industry.

The other thing I want you to learn about is called the burnouts.

When a work out is done, we must do burnouts. Burnouts target a specific set of muscle on a certain day. The idea is to do this for different sets of muscles on different days.

In burnouts, you have to work out a certain muscle until failure. Until you have given all you can give, it’s not burnout.

So you don’t stop doing push-ups at 10, 15 or 20. You are not supposed to count. You keep going until you just can’t go anymore. Until you try one last time, fail, and crash into the ground, the burn out is not done.

That’s a burn out exercise. The idea behind this is to ensure your muscles are fatigued. This rapidly builds muscle. It is the kind of failure that is sweeter than success.

When you are trying to do a burnout exercise, you are seeking out failure. 

Crazy? Yes, it is.

What is the equivalent of this in legal training?

When we make your exercises, we ensure that you can find 90% of what you need to solve this riddle which is there in our study materials. Chapters, templates, process guides, videos. But the last 10% is a stretch. 

We want you to try and fail. Or maybe succeed! Who knows? But it should be a struggle.

That struggle is critical to producing better lawyers. Those who sweat it out with exercises, do better in their actual tasks. In the world of sports, and in the world of law too!

The final concept is a trophy and maintenance work out.

Let’s say you go to the gym regularly, build amazing muscles, and you look amazing. If you stop working out after that, how long will you look good?

A month? I doubt. When I stop working out, it starts showing within a week. You are certainly not going to continue to look great if you quit working out.

And there is something called maintenance work out for that. You need to engage in certain minimum work out activities to maintain your vitality, stamina, and muscles. Otherwise, all the hard work you put in to achieve a great physique could be lost within weeks.

Muscles, if not exercised, atrophies. So can your legal muscles.

It is no different from any legal skill you may develop. You can look at it as a tragedy, but in reality, it is just the way things work. Those who will keep practicing legal skills shall continue to grow, and those who rest on their laurels will atrophy.

Lawyers need a gym for their legal muscles too! 

And that is why we have always strived to create LawSikho as a kind of gym where lawyers can come and work on their skills in an ideal training condition.

Also, I would like to remind you that the following courses are closing in a few hours:

Diploma

Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution

Diploma in Companies Act, Corporate Governance and SEBI Regulations

Executive Certificate Courses

Certificate Course in Advanced Corporate Taxation

Certificate Course in Insolvency and Bankruptcy Code

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

Certificate Course in Legal Practice Development and Management

Certificate Course in Media and Entertainment Law: Contracts, Licensing and Regulations

Certificate Course in Real Estate Laws

Certificate Course in Arbitration: Strategy, Procedure and Drafting

The post Supersets and Burnout Exercises for your Legal Muscles appeared first on iPleaders.

This article is written by  Vibha Aggarwal, pursuing a Certificate Course in Real Estate Laws from LawSikho.com. Here she discusses ” How are Development Authorities Constituted and what do they do”

Development Authorities: Formation, Role & Challenges

The process of urbanization and migration of people from rural areas to urban areas for better living opportunities has resulted in serious problems of housing, infrastructure, and health. This unplanned urbanization pushes poor people to live in urban slums in very unhealthy living conditions. Thus, tremendous pressure is exerted on urban infrastructure due to unplanned growth.

In India, Development Authorities have come into existence, out of the need to tackle growing housing problems and poor infrastructure. It was envisaged that the development authorities will help to plan, implement & co-ordinate development activities in a structured way. After the constitution of urban development authorities, the actual implementation of urban projects and master plans has started.

Several urban development authorities have been established by various state governments to provide housing, infrastructure, and amenities to its ever-growing population. 

The first to come up was the Delhi Development Authority (DDA) in 1957, for the Delhi metropolitan area. Similarly, the Haryana Urban Development Authority – HUDA in 1977 and the Maharashtra Housing and Area Development Authority (MHADA) in 1976 was established to accelerate the process of planned development.

 Delhi Development Authority (DDA)

The Development Authority in Delhi – DDA known as Delhi Development Authority was constituted in 1957 under the provisions of the Delhi Development Act. The primary objective of DDA is to promote and secure the development in Delhi. 

Under section 6 of the Delhi Development Act, 1957, DDA has provided a charter with the following objectives:

• To formulate a Master Plan for the development of Delhi and work accordingly;
• To possess, manage and dispose of land and other property;
• To carry out building, engineering, mining, and other operations

Over a period of time DDA has not only undertaken housing projects but has also developed commercial complexes, sports facilities, public transportation systems, parks & playgrounds. 

The Authority believes in “Green Delhi” and works with the objective to protect the environment by retaining green belts and forests. Realizing the importance of Delhi`s place in national development, DDA along with other state authorities is playing a vital role in the development of the National Capital Region (NCR) 

DDA Housing Scheme 

During 2016-17 about 53,950 dwelling units were under construction in various zones with prefab technology (Source: DDA Annual Report 2016-17).

Table 1 – Details of housing as on 1.4.2016

Source: DDA Annual Report 2016-17

The above table 1 shows that 11,767 LIG and 2,580 EWS new houses were taken for construction for urban poor during the year 2016-17 (Source:  DDA Annual Report 2016-17)

DDA had launched housing scheme 2019, for 18000 flats across for all four categories – EWS, LIG, MIG and HIG (source: Housing.com)

Proposed Zonal Development of Delhi by DDA as per Master Plan, 2021

Source: 99 acres

Since 2007, the Master Plan of Delhi came into force with a view to accommodate 23 lakhs individuals by the year 2021.

Haryana Urban Development Authority – HUDA

The Haryana Urban Development Authority –HUDA is a statutory body constituted under the Haryana Urban Development Authority Act, 1977.

HUDA was constituted with a mandate to provide:

• Affordable housing to all sections of the society;
• To promote and secure the development of urban areas in a planned way by acquiring undeveloped land.

HUDA undertakes various development activities and has developed or facilitated the development of housing projects, public infrastructure, industrial & commercial places, recreational zones. Also, it has played a role in providing civic amenities like water supply & drainage systems. 

It also provides developed land to Haryana Housing Board & other institutions to achieve its basic aim of providing housing to all sections of society with special focus on the economically weaker section of the society.

HUDA (HSVP) Upcoming Plot Schemes 2018-2019, 2019-2020 Gurgaon

Early this year, the Haryana Shehari Vikas Pradhikaran (HSVP), earlier known as HUDA, launched a new housing scheme for distribution of about 6200 residential plots in urban areas in all across the Haryana. (Source: educationbhaskar)

Also, HSVP constructed low-cost houses (around 9992 houses) for slum dwellers rehabilitation, who have encroached HUDA land (Source HSVP: Information at Glance- as on 31.03.2019)

Work undertaken by HUDA

No. of Sectors floated

(Source HSVP: Information at Glance- as on 31.03.2019)

No. of Plots Allotted

(Source HSVP: Information at Glance- as on 31.03.2019)

Land Developed under Parks 877 acres up to 31.3.2019

(Source HSVP: Information at Glance- as on 31.03.2019)

Maharashtra Housing And Area Development Authority – MHADA

Maharashtra Housing and Area Development Authority (MHADA), was constituted by the Maharashtra Housing and Area Development Act, 1976, with the aim to improve the living standard of the poorest section of the society.

MHADA constructs & allots affordable houses to all income groups of the society. Even though Mumbai is known for its skyrocketing high price, MHADA is able to provide homes comparatively at a low price. It also provides houses to Mill Workers who lost their jobs and homes in midst of the 1980’s during the great mill strike.

MHADA is also involved in repairs & reconstruction of old & dilapidated buildings. In true sense, it works to uplift the living standard of all sections of society not only by way of providing affordable homes but also participating in slum improvement activities.

The most important feature of MHADA is the system of allotment of the houses through its computerized housing lottery system.

Even though MHADA tries its best to provide affordable homes, most of the times its home units are unaffordable to the majority of the population of economically weaker sections as pointed out in the study undertaken by PRAJA, an organization working in Mumbai.

Some of its findings are given below: 

Table 1 – Ideal cost of an Affordable House

Source: Report by Praja.org on the state of affordable houses in Mumbai

Table 2  – Cost of MHADA dwelling in Mumbai as of 2014

Source: Report by Praja.org on the state of affordable houses in Mumbai

As can be seen from Table 2 above, MHADA dwelling is unaffordable for nearly 80% of Mumbai’s households which belong to the economically weak, low income and middle-income categories.

City and Industrial Development Corporation of Maharashtra – CIDCO

City and Industrial Development Corporation of Maharashtra Ltd. – CIDCO was incorporated on 17th March 1970, under the Companies Act, 1956. The State Government via Resolution (GRNO. IDL/5770/IND –I) issued a notification stating CIDCO as the New Town Development Authority (NTDA). It was a subsidiary of the State Industrial and Investment Corporation of Maharashtra Ltd. (SICOM).

From October 1971, CIDCO was an authority for development in Navi Mumbai. CIDCO undertook to prepare and publish a development plan as required by town planning. CIDCO identified 14 nodes to facilitate development to form Small Township and gave it the identity of a new city.

Click Above

CIDCO Mass Housing Scheme

CIDCO Mass Housing Scheme was launched in December 2018 in the state of Maharashtra to benefit the economically weaker sections and lower-income group. These section under this scheme will get benefit the same as Pradhan Mantri Awas Yojna.

Under this scheme, total 89,771 houses are to be built – 53,483 for the economically weaker section and 36,288 for the lower-income group will be constructed within a period of 5 years (approx) 

(Source www.pmil.in)

Development Authorities: Issues & Challenges

Since their inception, development authorities have undergone various changes to cater to the dynamic needs of growing cities. Post liberalization of economy (after 1992) saw increased demand for industrialization, commercial activities, and infrastructure. Through efficient planning & better utilization of available resources, they have been able to play greater role in urban development by implementing various development projects such as housing, roads, flyovers, metro rail, etc. Also, the focus is on the green initiative to provide a clean & healthy environment to its population. 

As India is fast developing the economy, rapid development is essential to fuel the growth engine. To do this, smart planning and quick implementation of development activities are of prime importance. 

Unfortunately, multiple agencies are involved in the development of the same area, city, and region. Lack of clear division of responsibilities often leads to a multiplicity of the role and over-lapping functions resulting in wastage of time and resources, thus duplication of work & long delay in project implementation. 

Various agencies involved in city development are as follows:

• Development Authority.
• Municipal Corporation /Municipality.
• Town Planning Agency.
• State industrial corporations.
• State housing & urban development agencies.

Involvement of multiple agencies often leads to poor coordination. The multiplicity of authority and lack of coordination results in poor decision making & delay in the implementation of development plans. This poses a big challenge before development authorities in fulfilling their objectives in the most effective and efficient way.

Conclusion

Development Authorities have played an important role since the days of socialist economy wherein state had to play major role in providing basic public infrastructure, housing, and industrial development. Liberalization of the Indian economy in the 1990s required, rapid development in public infrastructure and basic amenities to fuel economic growth.

 To fulfil the aspirations of a growing population and provide futuristic public infrastructure, development authorities need to focus on the following points:

• Put more emphasis on institutional & human resource development through training and capacity building programs.
• Create an effective platform for networking and sharing knowledge with stakeholders.
• Devise a sound mechanism for communication & coordination with agencies involved in development activities.
• Explore every possibility of public-private partnerships for efficient planning & implementation of projects.

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

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OVERVIEW OF THE CONCLAVE

The Regional Conclave on The Future of Justice Education in South Asia is the inaugural edition of what we hope will become a regular annual or biennial gathering of leading South Asian educators and practitioners focused on Justice Education. The two-day conclave will take place at the Institute of Law, Nirma University in Ahmedabad, Gujarat on 8th & 9th November 2019. The conclave seeks to bring together clinical practitioners and educators from across the South Asian region on a common platform through a series of panel discussions, interactive sessions, and informal networking conversations addressing new approaches and initiatives, best practices, collaborative opportunities and insights on recurrent challenges in the theory and practice of justice education. The organizers will be able to waive registration costs for all selected applicants who demonstrate a genuine requirement of a registration fee waiver. Accommodation and partial travel expenses for a
limited number of successful applicants will be possible depending on the availability of funding.

Main Goals

 To develop and commit to publishing a body of relevant and useful knowledge
relating to justice education in India and South Asia.
 To enable justice educators and practitioners to take stock of what has been done in
justice education in India and South-Asia
 To share and foster dialogue on new approaches and initiatives, best practices,
collaborative opportunities, and insights on addressing recurrent challenges in the
context of justice education in SouthAsia;
 To build commitment and momentum for a new collaborative network of justice
educators and practitioners in the South Asian region.

Participants at the Regional Conclave will present their work at four-panel discussions spread across two days. Panel presenters will be required to submit a short essay draft (3000 – 5000 words) to the organisers by the stipulated date in October 2019. Drafts will be circulated to all conclave participants, and panellists will also be encouraged to contribute final revised essays for a proposed edited volume on justice education in South Asia to be published in 2020.

BROAD PANEL THEMES

Theme 1: New Approaches and Initiatives in Clinical Legal Education
We are particularly interested in new initiatives from South Asia that creatively adopt the clinical legal education approach to promote learning and advance social justice.

Theme 2: Working with Communities
We are particularly interested in the foundational vision, organisational modalities, and impacts of clinical legal education initiatives that are strongly focused on working with underserved communities in South Asia. Theoretical work and practical insights on engaging with vulnerable and marginalised communities are also welcome!

Theme 3: Learning Outcomes and Justice Education
We are particularly interested in theoretical work and initiatives that reconcile learning outcomes from justice education with commitments towards social justice outcomes in specific parts of South Asia. Theoretical work and practice-based insights on designing and assessing learning outcomes for justice education in South Asia are also welcome!

Theme 4: Collaboration in Justice Education
We are particularly interested in theoretical work and practice-based insights that explore best practices for collaboration in justice education in specific parts of South Asia.

Please note that the broad themes are not exhaustive, and we welcome interesting submissions on any issue pertaining to justice education in South Asia.

Specially-invited respondents and conclave participants will provide feedback, raise questions, and contribute to a constructive dialogue based on the presentations made at the panel sessions. A longer-duration interactive special session on day 2 of the conclave will focus on a strategy road-map to create a new network for justice educators and practitioners in India and the larger South Asian region.

All participants will be conferred with Certificates of Participation and included in the proposed new network for justice education in South Asia.

Application Guidelines:

 Applications to participate in the regional conclave need to be sent by email to rgajeconference@nirmauni.ac.in by the stipulated date. Applications should include a
covering letter, a short statement relating to the need for a registration fee waiver/accommodation grant/ travel grant (if applicable), and an essay draft as an
attachment. Incomplete applications will not be considered.
 Applicants must be willing and able to participate for the entire duration of the 2-day
conclave.
 Joint applications and essay authorship are permitted up to a maximum of two collaborators. At least one applicant must attend the conclave to present the work and participate in the sessions.
 The cover letter sent as part of the application should mention the Name of the Author(s), Professional Position/ Course/Year of Study (as applicable), Name of the
Institution/College/University, Postal Address, Email Address and Contact Number.
 The Essay draft must not exceed a maximum of 5000 words (excluding
footnotes/endnotes/annexure/reports etc.) and should be submitted as an email attachment in PDF and MS Word formats along with the application.
 The statement relating to the need for a registration fee waiver/accommodation grant/travel grant should indicate the specific circumstances of the applicant’s need for funding support, any past work done in the area of justice education, and possible alternate sources of funding support for participation in the conclave.

Contact Persons

FACULTY CONVENORS:

 Dr. Tarkesh Molia Email: tarkesh.molia@nirmauni.ac.in
 Mr. Arpit Sharma Email: arpit.sharma@nirmauni.ac.in

STUDENT COORDINATORS:

Ms. Toshit Godara +91 9971230645
Mr. Lokesh Vyas +91 8080450882

CORRESPONDING ADDRESS:-
Institute of Law, Nirma University
Sarkhej Gandhinagar Highway, Ahmedabad Gujarat: 382481

Conference Email: rgajeconference@nirmauni.ac.in
Website: www.ilnuconference.org/rgaje

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This article written by Gaurav Raj Grover, a fifth year law student at Lloyd Law College, Greater Noida. This article discusses about the growth in Identity Theft in India.

Introduction

Identity theft has become a global issue. It is an area of major concern. Identity theft is termed as a crime of the new millennium. However, the fact prevails that due to the revolution in Information Technology there are certain outcomes that have led to a positive growth while others have become a matter of serious concern and identity theft is one of them.

Is Identity theft escalating to alarming threats? How is it detrimental to society at large? How can it be dealt with? The issue invokes related questions that need to be addressed. 

What is Identity theft?

Definition

Identity theft also known as identity fraud is a crime in which the accused obtains the key pieces of personally identifiable information. Identity theft refers to the fraudulent use of someone’s name and personal information in order to obtain credit, loans, etc. Identity theft is using someone else’s identity intentionally to gain a financial advantage or any other benefit in the person’s name. It is when thieves steal your personal information to gain access to your bank account or use the information for committing fraud or a crime. 

Identity theft Statistics

According to the research conducted by experts:

• 50 percent of businesses surveyed in Asia-Pacific has seen an increase in fraud losses over the past 12 months from account origination and account takeovers – both potentially damaging to brand reputation. 
• Fraud losses were particularly prominent in India at a reported 65 percent.
• In India, 87 percent of the businesses expressed heightened concern about the potentially damaging impact of fraud on their businesses. 
• 71 percent of the people in India say that security is their number one priority during their online experience, followed by convenience and personalization, at 15 percent and 14 percent.
• 64 percent of the consumers in India have complete confidence in the ability of the businesses that they protect them and they use the most up to date security measures.
• Identity theft contributes to 28 percent of overall frauds in India
• The fraud rates are highest for credit cards whereas two-wheelers have the lowest fraud rates. 
• Delhi and West Bengal have the highest fraud rates followed by Punjab, Uttar Pradesh, and Haryana. 

Types of Identity theft

• Criminal Identity theft

Criminal Identity theft occurs when someone who has been arrested for committing a crime presents himself as another person, by using that person’s details and information. This results in the filing of criminal record against the victim who may have no idea about the crime committed or may not learn about the crime until it’s too late or when the court summons. 

It must be difficult for the victim to clear their records as the jurisdiction for every crime is different and it will be very hard to find the true identity of the criminal.   might need to find the police officers and they will identify the victim and the Court after an investigation will clear the charges.

• Financial Identity theft

Financial Identity theft refers to the taking over of the victim’s account by the criminal by stealing his personal information. Thus, financial identity theft is the outcome of Identity theft. The ultimate goal of the criminals is to obtain the credit card in the name of the victim or to withdraw the amount from the victim’s account. 

This includes taking a loan on the victim’s name, writing the cheques on the victim’s name or transferring money from the victim’s account. Also, using goods and services by claiming to be someone else come into financial identity theft. 

• Synthetic Identity theft

Synthetic Identity theft is the most common identity theft in which original identities are completely or partly forged. It is committed by the criminals by combining the fake credentials and the legitimate personal information of the victim in order to create a fake document. This false document can be used by the criminal to apply for a loan, obtain a duplicate license, apply for credit, etc. 

This majorly harms the creditors who granted credit to the fraud. Victims are minorly affected if their names are confused with the synthetic identity or negative ratings can affect their credit score. 

• Identity cloning and concealment

Identity cloning and concealment are committed when someone uses the identity of someone else in order to conceal his identity. It is mostly used by immigrants. A person may apply for the visa by using false information and thus, concealing the identity. Terrorists use Identity cloning to impersonate someone else.

Thus, instead of using someone else’s identity for financial gains or committing crimes, it is used by the person the criminal to live the life of the person whose information is obtained. 

• Medical Identity theft

Medical Identity theft occurs when the criminal uses the information of someone else to get prescription drugs, see the doctor or claim the insurance benefit. The result is, the medical records of the criminal are added to the victim’s record. Thus, this has serious consequences on the medical records of the victim.

• Child Identity theft

The theft in which a child’s identity is used by another person for illegal gain is known as child identity theft. The imposter can be anyone, an unknown, a friend or even a family member who targets children. 

How does identity theft happen

There are various methods by which the thieves steal an identity. Some of them are as discussed below.

•  Phishing 

Phishing refers to the gathering of personal information by sending deceptive emails to the recipient. The recipient is made to believe that the email is sent by some authorized source or is the one that is needed by the recipient. For Example, a bank or a company in which the recipient works.

‘Smishing’ and ‘Vishing’

‘Smishing’ and ‘Vishing’ are two hybrid versions of ‘Phishing’. 

Smishing: In Smishing, the cybercriminals use text messages to gain the personal information of the victims. Cybercriminals often use social engineering techniques to attract victims to obtain sensitive information. Those cyber criminals usually direct the victims to move on to a link or to either make a telephone call on a particular number. They request an instant action to avoid damage or take advantage of the offer and this finally leads to the stealing of the information.

Vishing: Vishing is the combination of two words “Voice” and “Phishing”. In Vishing the cybercriminals use Voice over Internet Protocol (VOIP) or make phone calls to extract the information. Vishers often create fake Caller ID or profiles so that they may seem legitimate. 

• Pharming

Pharming refers to the scamming practice in which the cybercriminal installs a malicious code on the personal computer or server, misdirecting users to a fraudulent website without their consent or knowledge. Pharming disguises fake, fraud, data grabbing websites as legitimate and trusted ones.

• Credit Card Skimming

The victims of credit card skimming find fraudulent withdrawal of money and charges on their account. It is surprising to note that all this happens while the victim is in possession of the credit card.

It is a type of credit card theft where crooks often use a small device to steal the credit card information which includes credit card number, the expiry date of the card, full name of the cardholder, etc. The information is stolen with the help of a small device called a “skimmer”, when a person swipes his credit card on the skimmer then all his data which was stored in the card’s magnetic strip is captured by the skimmer. Thieves use this information to make fraudulent transactions and to withdraw the money.

Once the information is stolen, the thief can make a cloned credit card to make n number of transactions. Victims of credit card skimming are often unaware of the theft. Thieves can also place a hidden camera to steal the PIN of the ATM card. 

• Hacking

Cybercriminals often hack the computer of the victim and then control the activities of the victim. Hacking refers to the authorized access to someone’s computer.

• Malicious software

Malicious software or malware refers to any program or software that is designed to harm the computer of the victim. 

Malicious software is installed on the victim’s computer without his consent or knowledge. The user is directed to move on to a malicious site by clicking on a malicious link. Malicious software is often installed on the victim’s computer when he tries to download the movie for free or downloads online games for free from an unauthorized website. These websites often steal the information of the victim by gaining access to the victim’s computer.

• Unsecured websites

A user should always ensure that the website is secure before making any transactions. An unsecured website may lead to the stealing of personal information of the user. A user should ensure that the website is “https” and not “http”, “s” means the website is secure. This will reduce the chances that the user ID and password will be compromised.

• Weak passwords

People often use weak passwords for their social media accounts and ATMs PIN. It becomes easier for hackers to break such passwords and steal the information of the victim. Thus, it is always advisable to use a longer password a combination of alphabets, numbers and special characters. It is also advised to not share passwords with others. 

• By targeting children online 

Children can easily share their passwords without realizing its consequences. Therefore, the parents must remain vigilant and instruct their children to not share the password with anyone.

Identity theft examples

A cyber thief may steal the information of victims in many ways. Some of them are discussed below: 

Stolen Cheques

There are a variety of ways in which cybercriminals may steal the identity of the victim. One of the most common among them is the Stolen Cheques. The victims may steal the blank cheque or wash the ink of the cheque. To protect oneself from such fraud one must watch on his bank account and regularly check the emails received from the bank. If something suspicious is found then one must inform the bank immediately to stop any kind of transactions and investigate the matter.

ATM Cards

A thief can steal the information of ATM cards.

Fraudulent Change of Address

Inform the nearby post office in the event that you speculate a  fraud has recorded a difference in a location with the mail station or has utilized the mail to submit credit or bank extortion. Discover where the false charge cards were sent. Tell the nearby post office for the location to advance all mail in your name to your very own location. You may likewise need to converse with the mail carrier. 

Social Security Number Misuse

Call the Government managed savings Organization to report fake utilization of your standardized savings number. If all else fails, you should need to change the number. The SSA will possibly change it on the off chance that you fit their misrepresentation injured individual criteria. Likewise, request a duplicate of your Profit and Advantages proclamation and check it for exactness. 

Passports

On the off chance that you have an international ID, inform the identification office recorded as a hard copy to be watchful for anybody requesting another visa falsely. 

Phone Service

On the off chance that your long separation calling card has been stolen or you find deceitful charges on your bill, drop the record and open another one. Give a secret word, which must be utilized whenever the record is charged. 

Driver License Number Misuse

You may need to change your driver’s permit number in the event that somebody is utilizing yours as distinguishing proof on awful checks. Call the state or Locale of the Columbia office of the Branch of Engine Vehicles (DMV) to check whether another permit was issued in your name. Put an extortion alert on your permit. Go to your nearby DMV to demand another number. Likewise, round out the DMV’s objection structure to start the extortion examination process. Send supporting archives with the objection structure to the closest DMV examination office. 

False Civil and Criminal Judgements

Now and again casualties of fraud are unfairly blamed for violations submitted by the sham. On the off chance that a common judgment has been entered in your name for moves made by your faker, contact the court where the judgment was entered and report that you are a casualty of data fraud. On the off chance that you are improperly indicted for criminal accusations, contact the state Branch of Equity and the FBI. Request that demonstrates your innocence.

Whether Identity theft is theft within the meaning of IPC, 1860

Although by its name, identity theft is a kind of theft of specific kind involving user data, it is not governed by Section 378 (theft) of the IPC. This is because it caters to only movable property or such property which is capable of being severed from the earth and is tangible in nature (Section 22 of IPC).

Electricity has been included within the ambit of theft but in the case of Avtar Singh v. the State of Punjab, the Supreme Court held that it is because of Section 39 of the Electricity Act and there was no intention of widening the scope of Section 378 of the IPC. 

Hence, although identity information is in the form of binary data signals of zeros and ones, governed by streams of electronic waves like electricity, Section 378 cannot be read to include data or identity theft.

Provisions of the IPC dealing with Identity theft

Certain arrangements in the IPC, similar to fabrication and misrepresentation, which prior to administered such wrongdoings as for false archives, were altered by the Information Technology Act, 2000 to incorporate electronic records. Subsequently, the ambit of such wrongdoings was broadened to incorporate PC information related violations also. Subsequently forgery and making false documents (Section 464 of IPC) and its punishment in Section 465 of IPC, falsification for motivation behind tricking (Segment 468), phony for reason for hurting notoriety (Segment 469), utilizing as authentic a produced record (Area 471) and ownership of a report known to be manufactured and aiming to utilize it as certified (Segment 474) can be combined with those in the IT . For example, Segment 468 and Area 471 can be activated when an individual produces a site in nature of electronic record so as to bait the unfortunate casualties into disclosing their delicate data with the aim to swindle them. Further, Area 419 can be utilized in situations where the blamed has utilized the individual character data of the person in question and imitates such unfortunate casualty to submit misrepresentation or conning. Segment 420 can be utilized on the off chance that “anything fit for being changed over into an important security” inside the significance of the demonstration is perused to incorporate novel distinguishing proof data of a person. Further, the Master Board of trustees on Changes to the IT Act, 2000 had prescribed certain revisions in the IPC to incorporate Segment 417 A which would give as long as three years of discipline for tricking utilizing any one of a kind distinguishing proof component of another person. It likewise made swindling by pantomime by method for a system or PC asset culpable with as long as five years detainment and a fine, under Area 419 A.30 These proposals have not been joined into the IPC so far, yet would have given a progressively thorough law on wholesale fraud.

Identity theft punishments

Under Section 66C of the IT Act, 2000, whoever, fraudulently or dishonestly make use of the electronic signature, password or any other unique identification feature of any other person, shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine which may extend to rupees one lakh.

Provisions in the Information Technology Act, 2000

The IT Act, 2000 is the main legislation in India governing cybercrimes. Although, its aim was to mainly recognize e-commerce in India and it did not define cybercrimes as such. Before its amendment in 2008, Section 43 of the Act could be used to impose civil liability by way of compensation not exceeding one Crore for unauthorized access to a computer system or network (Subsection a) and for providing assistance to facilitate such illegal act (Subsection g). Section 66 of the Act only pertained to cybercrime of hacking wherein some destruction, deletion, alteration or reduction in the value of computer resource attracted penal sanctions. If a person obtained identity information from the computer stealthily without causing any changes in it whatsoever, this provision could not be used. The term identity theft itself was used for the first time in the amended version of the IT Act in 2008. Section 66 criminalizes any fraudulent and dishonest conduct with respect to Section 43 of the same Act. Section 66 (A) which is now held to be unconstitutional, covered the crimes of Phishing. Section 66 B pertains to dishonestly receiving any stolen computer resources. Section 66 C specifically provides for punishment for identity theft and is the only place where it is defined. Section 66 D, on the other hand, was inserted to punish cheating by impersonation using computer resources. This provision can be seen to be similar to Section 419 (A) recommendations of the expert committee as mentioned earlier. Several other provisions inserted in the amendment include punishment for violation of privacy and for cyber terrorism. Women and children have also been provided protection under Section 67 A and 67 B of the Act. Further, stronger laws have been formulated with respect to the protection of “sensitive personal data” in the hands of intermediaries and service providers (body corporate) thereby ensuring data protection and privacy. Only exceptional cases where such data can be revealed is to an agency authorized by the State or Central government for surveillance, monitoring or interception, under Section 69 of the IT Act. The ambit of sensitive personal data is defined by the IT Rules, 2011 to mean password, financial information, physical, physiological and mental health condition, sexual orientation, medical records and history, and biometric information. Hence, depending upon the method using which identity theft has been committed, the aforementioned laws can be applied. 

Impact of Identity theft 

Identity theft or identity fraud happens when a thief gains access to personal information like your name, address, credit card or bank account numbers, Social Security number, phone or utility account numbers, passwords, or medical insurance numbers and uses that information for their economic gain.

The actions you need to take, the length of recovery time, and the consequences of having your personal information stolen will depend largely on what kind of identity theft you’ve experienced. In extreme cases, some people have spent more than six months resolving financial and credit problems associated with identity theft.

Identity theft’s negative impacts often involve finances, but there can be other consequences, as well, including an emotional toll. For example, if a thief commits a crime and provides your name to the police is known as criminal identity theft and authorities arrest you as a result, well, you can imagine the resulting stress, as well as disruption to your life until you’re able to resolve the situation.

In this article, we’ll discuss the four different ways victims can be affected by identity theft:

• Financially
• Emotionally
• Physically
• Socially

Financial toll

The financial difficulties that may be caused because of identity theft can last for months or even years after your personal information is exhibited. The hurdles faced by people depend upon the type of data collected by the criminals. 

• Debating an identity thief’s activity in your credit files and working to restore your good credit
• Cleaning up and closing bank accounts, and opening new accounts
• Changing passwords

Through account takeover, identity thieves can also take over your property and other financial accounts, the impacts of which could affect your retirement, your mortgage, and your child’s education.

And identity theft isn’t necessarily something you can forget about, especially when it involves sensitive personally identifiable information like your Social Security number. Thieves may not use your information for months or even years—waiting for a time when you may not be as attentive to the risk. Thieves can also sell personal information on the dark web. You may have to stay alert and watch for red flags indefinitely.           

If your identity theft issue is so complicated that it requires expert advice, legal fees could add to the financial impact.

In fact, some victims end up reaching out to the government for assistance while recovering, which shows the potential magnitude of identity theft hardship.

Emotional toll