This article is written by Suryansh Singh, a 3rd-year law student from Indore Institute of law. This article mainly focuses on the concept of repeal and its effects while repealing a statute.

Introduction

In‌ ‌general, the term repeal stands for to cancel or to revoke. But in the context of law, it means to “abolish statutes”. Repeal of statutes means the abolition of the law, and once if any statute is abolished then it is considered void and possesses no effects. In addition, there is no basic difference between amendment and repeal.  Both the term amendment and repeal is used for stating a similar expression that is the substitution or omission or addition.

As per Halsbury’s Laws of England, the term repeal stands for revoking and abolishing an act and all its effects which cause it to cease to be a part of statutes of books or body of law.

According to the Black’s law dictionary, the term repeal means a legislative act which abrogates or obliterates an existing statute.

There exist two types of statutes temporary and perpetual. Temporary statutes tend to have effects for a specific period of time. They have no effects after the expiry of the specific period, however, the permanent or the perpetual statute is the one in which the statute remains effective until it is substituted or repealed by the legislative act.  The power to repeal a statute is conferred to the legislature is similar to the powers it has for the enactment of a statute. For example, the Companies Act, 2013 repealed the Companies Act 1956, the Criminal Procedure Code, 1973 repealed the previous Criminal Procedure Code, etc. such power of repealing a statute is similar and coextensive to the power of making or enacting a law. Both the union and the state legislature are empowered with such power however they are restricted to delegate the power of repealing.

What are the objects of the Repealing Act?

The primary object of this act is to bring necessary changes in the existing law for changing socio-economic and cultural conditions from time to time. The purpose of this Act is to remove the outdated or obsolete matter from the body of law. After the removal of obsolete matter, it is the court that decides whether the new provision meets its goal and has different intentions or not.  This act is the editorial revision by abolishing obsolete and unnecessary matter of the statute and adding new and proper information in the books of the statute.

What are the kinds of repeal?

There are two types of repeal:

1.   Express repeal
2.   Implied repeal

Express repeal

Express repeal is an expression which means the abolition of the previously enacted statute by the newly enacted provisions of a statute through expressed words embedded under the new statute enacted. The statute which has been repealed is called repealed statute and the one which replaces the earlier statute is called the repealing statute. In general, when an earlier statute or some of its provisions are repealed through express words embedded under the newly enacted statute stating that the provisions are now of no effect is called the express repeal.

What are the essential features that constitute express repeal?

• The first and foremost feature is that there must be a repealing statute.
• The earlier statute must be repealed by the new enacting or repealing statute.
• The enacted statute must have clear intention showing the effect of the repeal.

So it is understood that any earlier statute or provision of the statute can be removed or repealed by the enacted statute showing incompatibility with the previous one.

R. v. longmead, [(1975) 2 Leach 694: 168 E R 448]

In the instant case, it was held that the legislature in order to pass a repeal or continue any statute is not restricted to use precise forms of words.

Implied repeal

The term implied means implicit or hinted. So when a statute becomes obsolete and it is inferred that it is no longer and shall be repealed with the newly enacted statute then this process of repealing is called implied repeal.

For example, if we enter a car showroom it is intended that we are there to buy cars. It is implied, similarly, if there arises any inconsistency in the statute and due to certain circumstances it becomes necessary to repeal the statute with the new one though such situation is not expressly stated, then it is implicit for the implication of repeal.

When the reference is not direct then the matter is decided through the meaning and nature of the words enshrined under the repeal clause. During the absence of provisions relating to express repeal the continuance of any statute or legislation is presumed.

In the case of implied repeal, the burden lies over the person who asserted the implication of repeal. However, it has also been mentioned that if the newly enacted statute shows no clear intention or is inconsistent with the provisions of the earlier act then such an assertion or presumption is rebutted and the act of repeal is done by inferring necessary implications.

The concept of implied repeal is loosely based on the following maxim “Leges posteriores priores contrarias abrogant”. This means that the earlier or previously enacted law shall be obliterated or abolished by the new one.

Under the following circumstances, the implied repeal is inferred

• The first circumstance is when both the subsequent and the earlier enacted acts are inconsistent with each other one of the two can remain effective.
•  When the subject of the earlier act is covered by the act and is intended to substitute.

Test of the Implied Repeal

There is the assertion against the repeal by implication. The reason for making such an assertion is that legislature while making or enacting the law has full knowledge about the current laws on the subject matters. If the legislature has no provision regarding the repeal of the statute then it is asserted that the legislature has no intention to repeal the existing statute.

Municipal council, Palari v. T.J. Joseph AIR 1963 3C 1561, p. 1564

In the instant case, it was held that if an act or provision enacted is inconsistent from the act previously enacted and one of the acts must be obliterated.  The presumption, in‌ ‌this‌ ‌case, rebutted and the implied repeal is inferred.

 For the implied repeal of a statute following points are to be considered:

• Whether the previously enacted laws are in direct contradiction to the later enacted laws.
• The conflict between the laws is of such a nature that can’t be resolved and reconciliation between the laws is not possible.
• Whether the newly enacted act is not consistent with the previously enacted act and one has to be obliterated.
• When both the laws are of such a nature that occupy and deals with the same field.

Delhi Municipality V. Shivshanker, [AIR 1971 SC 815]

In the instant case it was held by the supreme court of India that the test which is applied in case of repugnancy under Article 254 of the Indian constitution while resolving the conflicts arising between the laws enacted by the parliament and the laws created by the state legislature, this test of determining repugnancy shall be applied in case of implied repeal of a statute. This test includes:

• Whether there exists a direct contradiction between the two statutes or provisions.
• When the law tends to occupy the same field.
• When the legislature explicitly focused on the code of the particular subject matter replacing the earlier law.

Ratanlal Adukia v Union of India (AIR 1990 SC 104)

In the instant case, the Supreme Court stated that the doctrine of implied repeal is loosely based on the statement that the legislature assumed the current state of the law did not intend to generate any vagueness by retaining the conflicting provisions. The court while implicating this doctrine examines the nature and scope of the two enactments by giving effect to the legislative intent.

Damji V. L.I.C (AIR 1966 SC 135)

In the instant case it was held that section 446 embedded under the companies act 1956 is a general provision whereas the section 15 and 41 enshrined under the Life Insurance Corporation Act, 1956 are special provision so there exists a difference and the companies court is not competent or have jurisdiction over the matters which falls under the ambit of Insurance Corporation Act, 1956.

What do you mean by Repeal by Desuetude?

As it has been already stated that there are two types of statutes namely temporary statute and the permanent statute. There exists a very thin line difference between both the statutes. A temporary statute is enacted for specific purposes and for a specific time period and gets repealed after the expiry of that particular period or fulfillment of that purpose. A permanent statute which is also known as a perpetual statute  is enacted with a long term goal and gets repealed by the subsequent statute.

There are certain acts which possess the nature of permanent statute but remains inoperative or ineffective for a long period of time as they are not applied or taken into consideration by the court for a long period of time. Due to this, the statute loses its recognition and its applicability. Such disobedience of act is known as Repeal by Desuetude.

The Municipal Corporation for the city of Pune and another v. Bharat forge Co. Ltd and others (J.T. 1995 (3) S.C. 312)

In the instant case, the following doctrine of desuetude was highly criticized as it was assumed that the perpetrators or the accused who have committed certain crimes and are punished for violation of certain laws or statute which has become ineffective can be protected and escape their criminal liability.

What are the effects or consequences of repeal?

The effects of the repeal of a statute have been described under the following heads:

• In respect of common law
• The general effect of repeal
• General clause Act, 1897

Effects or repeal with respect to common law

• Common law is commonly known as the law made by the judge. It contains the following effect regarding the repeal of the statute.
• The first effect is that the statute repealed is abolished and obliterated and becomes dead as if the enactment of the statute.
• All the rights created and enshrined under the repealed act is removed.
• The repealed portion gets resuscitate if the repealing act is repealed by the new subsequent act and such an act shows its intentions.

 General consequences of repeal

• A newly enacted law repudiate the existing one.
• The statute after getting repealed becomes ineffective.
• Statute repealed is abolished by the repealing statute as if it had never been made by the legislature.
• Except for a saving clause, each and every part of the statute is considered unconstitutional.
• In order to validate a transaction made under a repealed statute, the law can retrospectively amend the statute even after it is obliterated.

Effects embedded under the General Clause Act, 1987

If any act made after the incorporation and commencement of this Act, repeals any statute made until now then until a different intention or object appears between the act and the repeal shall not- effects the operation commenced under the provision of this Act.

Conclusion

It can be concluded that the Repeal of statutes means the abolition of the law, and once if any statute is abolished then it is considered void and possesses no effects. In addition, there is no basic difference between amendment and repeal.  Both the term amendment and repeal is used for stating similar expression that is the substitution or omission or addition. Both the union and the state legislature are empowered with such power however they are restricted to delegate the power of repealing. The primary object of this act is to bring necessary changes in the existing law for changing socio-economic and cultural conditions from time to time. The purpose of this act is to remove the outdated or obsolete matter from the body of law. After the removal of obsolete matter, it is the court that decides whether the new provision meets its goal and has a different intention or not.  This act is the editorial revision by abolishing obsolete and unnecessary matter of the statute and adding new and proper information in the books of the statute.

The post Effects of Repealing Statutes appeared first on iPleaders.

This article is written by Suryansh Singh, a 3rd-year law student from Indore Institute of law. This article mainly discusses the concept of bail and provisions relating to it. 

Introduction

In general, the term bail means the temporary release of an accused person on a temporary basis. As the term bail has been derived from the French word bailer which means to deliver or to give. The term bail has been used for a long time.  As defined in the oxford dictionary bail is the absolution of an accused person temporarily awaiting the trial or a sum of money is lodged by the accused person as a guarantee for his appearance in the court.

The provisions regarding the bail and bonds have been specified from section 436 to 450 of the Criminal Procedure Code. These provisions envisaged in the code gives the brief regarding the provisions of the bail.

The concept of bail is that it acts as security lodged by the accused person on the basis of which he can be released on a temporary basis but needs to appear in court whenever required by the court. The process of bail takes place while the trial of the accused person is still pending. Generally, a person seeks this option in order to get himself released from the police custody. The process of bail is a legitimate process.

Basic Rule

India is a democratic country and the basic concept of democracy is that every individual must have personal liberty and freedom. It is the basic right of an individual which is protected by the state. Thus the concept of bail and personal liberty goes hand in hand and therefore every individual including the accused person has the right to seek bail in order to get himself released from custody until and unless proven guilty by a court of law. As enshrined under Article 21 of the Indian Constitution that the life and personal liberty of a person can’t be deprived except by the procedures laid down by the law.

Object

The basic goal behind arresting and detaining a person behind the jail is that when the accused is required by the court during the trial he must appear in court for the trial. The process of bail is a complex mechanism, it is considered to be very delicate and conflicting at the same time. The reason it is very delicate is that an accused seeks for bail when the trial is pending in the court and it can’t be said that the accused is innocent or culprit. Sometimes when the bail is not granted to the accused person it may curtail the liberty of the innocent accused or while granting bail may result in giving extra-liberty and freedom to the actual culprit.

It is a comprehensive statement used in general that an accused person may escape his crimes but an innocent shall not pay the price of some other person’s deed. Based on this ideology the code of criminal procedure has bifurcated the offences into two categories.

Types of offences

• Bailable offence
• Non-bailable offence

Bailable offence

The bailable offence is the type of offence in which an accused person is granted bail. This type of offences is generally punishable by the court with less than three years of imprisonment. In the case of bailable offence the chances of getting bail are much higher.

Under section 2(a) of the code, the term bailable offence has been described as the offence which has been specified in the first schedule of the code or if the offence is considered to be bailable by the law in force during the time.

Non-bailable offence

The non-bailable offence is the type of offence for which an accused person is not entitled to get bail. These are the offences which are non-bailable nature and are not shown as bailable under the first schedule of the code. These offences are grievous in nature when compared to bailable offences. In the case of non-bailable offences the punishment is three years or more.

Cases in which bail may be granted (whether release on bail is mandatory?)

In the case of bailable offence it is mandatory to grant bail to the arrested person and in case of non-bailable offence it depends upon the discretion of the court. Section 436 of the code talks about the cases in which bail can be taken and section 437 of the code talks about the cases in which the bail may be taken in case of  non-bailable cases.

Cases in which bail to be taken (section 436 of CR.PC)

In this case, if a person who is not guilty of any non-bailable offence and gets arrested without a warrant by the police authority and is prepared to give bail, then it is the duty of the police authorities to release him. The person arrested may be released on the bond without submitting any sureties.

Appealability of the order (section 439 of the code)

Section 439 of the code states that any orders passed under section 436 of the code shall be appealable.

1.   The order made by the magistrate to the session’s judge is appealable.
2.   In case when the court of sessions passes an order to the court where an appeal lies from an order made by such court.

Investigation incomplete (section 167 of the code)

Under section 57 of the code states that a person arrested or taken into custody has to be released after 24 hours. Within those 24 hours, he has to be presented before the magistrate with a notice. The period of 24 hours can be extended if the investigation regarding the offence or crime committed has not been completed. Section 167 states that in order to extend the period of 24 hours for the purpose of investigation prior order has to be obtained from the magistrate. If the investigation is not completed the person arrested or detained shall be released. The period of detention shall not exceed 90 days (in case where the offence is punishable with the death penalty or life imprisonment) and 60 days (in case where the offence is punishable for a term less than ten years).

The maximum period for which an under-trial prisoner can be detained (section 436-A of the code)

Under section 436 A of the code states that the detention period for an undertrial prisoner other than the one who is accused of the criminal offences punishable with death or life imprisonment shall be released from detention if the person has been detained for one half of the maximum sentence provided for the offence committed by him.

When may bail be taken in case of non-bailable offences (section 437 of the code)?

It depends upon the discretion of the court or the police officials that they may release the person arrested for non-bailable offences until and unless there exists any reasonable grounds or apprehension that person arrested has committed any crime and is not guilty of any criminal liabilities which is punishable with life imprisonment or the death penalty.

Bail to require accused to appear before the next appellate court (section 437 A of the code)

Under section 437A of the code, it has been stated that in order to appear in the higher court as and when the higher court issues the notice against the judgment of the court it becomes mandatory for the trial court or the appellate court which requires the accused to execute the bail bond with sureties.

What do you mean by the Anticipatory Bail?

Under section 438 of the code, it has been stated that the term anticipatory bail can be understood through the expression anticipatory. Anticipatory bail is the bail granted by the court in anticipation of the arrest. When this bail is granted to a person it ensures that in case if the person is arrested in the near future then such person shall be released on this anticipatory bail. No questions can be raised on the release unless the person executing this bail is arrested and therefore it totally depends upon the arrest that the order granting such bail becomes operative.

The following provision of section 438 of the code was recommended by the law commission. On its 48th report, they expressed their observations regarding the provision of anticipatory bail and stated that such provision is a useful addition to the code but it should be used in extraordinary or exceptional cases only.

Section 438 of the code runs as follows:

When any person having the reasonable apprehension that he may be accused of committing the offence of non-bailable nature then such person can apply for anticipatory bail in the high court or the sessions court. The role of the court having competent jurisdiction shall give him direction under section 438 of the code that during the time when he gets arrested he shall be released on bail after taking into consideration the following conditions shall accept or reject the application filed for anticipatory bail by the person getting arrested.

Following are the factors:

• The accusation made shall be grave and serious
• Likelihood of the applicant to flee or abscond from justice
• When the accusation is made with the intention of humiliating or injuring the person by making him arrested through that accusation.

Conditions under section 438 of the code involve the following things.

• The applicant filing for the anticipatory bail shall have the reasonable apprehension of getting arrested
• The arrest of such person shall be in respect of the accusation of him committing non-bailable offence or cognizable offence and the courts having competent jurisdiction shall direct that in the event of the arrest the person shall be released.

Following conditions are imposed on the person seeking the anticipatory bail by the courts having competent jurisdiction

• It is the duty of the person to appear or make himself available whenever required by the police officials for the investigation.
• He must not induce or threat for dissuading him from disclosing facts of the case.
• The applicant shall not go outside the territory of India without taking the prior permission of the court.
• Or if the following conditions stated in point one and two are fulfilled and such person is ready to give bail, he should be released from custody subject.

Amiya kumar v. state of west Bengal 1978 Cri.LJ 288

In the instant case, it was held that section 438 of the code empowers both the high court and the session’s court to grant the anticipatory bail. Both the high court and the Sessions court have the competency to grant this bail. If the Sessions court rejects the petition filed by the applicant for the anticipatory bail then he can’t file the petition for the same in the high court.

D.R. Naik v. the State of Maharashtra, 1989 Cri.LJ 252

In the instant case, it was held that if a person files an application for anticipatory bail and it is rejected by the sessions court, this will not put the bar over the person filing the petition to approach High court. But if the person first approaches the high court and the petition filed by him gets rejected, then he can’t approach the session’s court for filing the petition on the same ground.

Malimath Committee Report

The Malimath committee gave its observation regarding the provision of anticipatory bail. They stated that the provision of section 438 is often misused by the people. Such misuse of the provision is illegal. The committee after the following observation suggested two conditions or requirements for the purpose of retaining the provision.

The following conditions are as follows:

• Before granting the anticipatory bail the court shall hear the public or the government prosecutor
• When a person files a petition of anticipatory bail it must be heard by a court having competent jurisdiction.

Distinction between Bail and the anticipatory bail

Under section 437 of the code, it has been stated that a regular bail is available and granted to a person after the arrest when he is in the judicial or police custody,  however in the case of an anticipatory bail is available to a person before the arrest or if the person has reasonable apprehension of arrest.

Conclusion

It can be concluded that the concept of bail is that it acts as security lodged by the accused person on the basis of which he can be released on a temporary basis but needs to appear in court whenever required by the court. The process of bail takes place while the trial of the accused person is still pending. Generally, a person seeks this option in order to get himself released from police custody. These provisions envisaged in the code gives the brief regarding the provisions of the bail. The process of bail is a legitimate process.

The post Provisions relating to Bail appeared first on iPleaders.

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

What skills and knowledge do I need to become an effective in-house Counsel?

What subjects should I study to crack in-house legal job interviews?

What are the legal subjects that I need to focus on while I am in college if I want to be a corporate lawyer but want to work in companies instead of a law firm?

These are frequently asked questions. But answers are scarce if you ask these questions. Even a google search returns next to no useful results.

If you are a law student or a lawyer interested in becoming an in-house counsel, please read on. We would share some insights from our 10 years of experience of training lawyers to crack in-house counsel jobs, thanks to this course we conceptualised back in 2010, called Diploma in Entrepreneurship Administration and Business Laws.

When we launched this course at first, we imagined that it would be very popular with entrepreneurs. However, more than entrepreneurs, we saw many corporate lawyers and in-house counsel opt for this course. Over time, given that in-house counsels became the biggest chunk of learners in this course, we also designed it to suit their requirements. Over 8 years of feedback and development has gone into this course and countless hours of teaching. As a result, this course has become a unique resource, and have the distinction of training over 2000 business lawyers working in different companies as in-house counsels across India, Africa and the Middle East.

This course was earlier offered in collaboration with a National Law University, our alma mater NUJS. However, since 2018, the course has been offered independently through LawSikho.com in an enhanced, more intensive and engagement heavy format.

Why has in-house counsel role become more attractive over time?

The employment sector concerning in-house counsel jobs has been phenomenal in the past few years, and this trend is only expected to accelerate. Companies that used to rely on law firms for various kinds of work now prefer to build their own in-house legal departments, and therefore a lot of corporate law work has shifted from law firms to in-house legal departments. It has become quite common for a large company to have a legal department that runs into over a hundred lawyers, the size of a typical mid-size law firm in India. 

For an in-house counsel, work is no more restricted to just working as a conduit between the company and outside lawyers, merely managing the legal work. In-house counsels are now handling complex situations, and are respected for their expertise. There is significant growth opportunity and demand for in-house counsels, even internationally as Indian legal heads grow into the Asia Pacific or Global General Counsel roles.

At the same time, demand for in-house counsel is rising thus increasingly making the competition in the sector go arduous. To make it easy for you, we at lawsikho.com have a course for such aspiring students and lawyers

The course is designed to furnish lawyers, business leaders and student willing to be in-house counsel or start-up their own business firms respectively with the most critical business law and regulatory skills related to entrepreneurship and business environment. The course not only helps you grasp the legal and regulatory tactics involved but also to have a grasp of the practical administration of law in a high-speed working environment.

Businesses have to undergo many stages like structuring and incorporation, financial management (including investments, loans, tax and accounting), corporate governance, contracts and negotiation, employee management etc. Our course focuses on each of these areas and will help you learn from basics to advanced skills needed by in-house legal counsels.

The course was created under the guidance of prominent lawyers and business leaders, starting from the top general counsels, law firm partners and even retired judges. The objective of the course is to provide next-level comprehensive knowledge to in-house counsels and business strategists that will catapult them into the orbit of business leaders.

What are the things that I need to learn to become an effective in-house counsel?

• Business Structuring

We focus a great deal on business structuring, a critical skill that is not even touched in law schools. You should learn how to build an optimal organisational structure that conduces effectively the functioning and management of the organisation. 

Apart from selecting a proper structure for a business, it is also important to understand why businesses create complex holding structures, often spread across several countries. Good business structuring reduces business risks, tax liability and helps businesses to channel capital and efforts appropriately.

• Corporate Governance

Legal departments play a critical role in corporate governance. For an in-house counsel, the goal of corporate governance is to enable agile decision making and execution while retaining investor confidence and maximize benefit to all stakeholders. It is a complex process that requires true expertise and can make a great deal of difference to the fortune of a company.

• Basics of tax and accounting

Lawyers may be afraid of dredging through oceans of numbers and stacks of financial documents. However, success as a business lawyer will remain elusive unless you have a good understanding of the financial aspects of a business, and if you fail to understand the critical financial statements. Taxing and accounting is the basis to record the growth and downfall of the business. Many critical legal decisions require you to consider financial impacts and insights, and you also need to ensure that appropriate record-keeping for tax and legal purposes. 

• Government Policy and Regulatory

Every business must keep a sharp eye on government policies and regulations that impact its market. The government regularly issues policies and regulations for every business sector that can make or break the fortunes of a business. It is the job of an in-house counsel to not only be aware of all policies and regulatory measures but to even foresee where policies may be headed and prepare their business for any eventuality. 

• Employment and Labour Law

We are in a phase where the government is rewriting a lot of labour laws. Compliance to labour laws is high on priority, while there is a rise in employment-related lawsuits more than ever. High-risk laws such as the law against sexual harassment are keeping organizations on their toes, and in-house lawyers need to be on top of such laws.

• IP law

For many new age businesses, intellectual property is a make or break issue. Media companies, tech companies, manufacturing industries – they all rely heavily on in-house lawyers to keep their IP portfolios in order. Mistakes and omissions in this department can be extremely costly, and businesses cannot leave their IP to chances. There is a lot of work in the registration of IP, licensing, enforcement as well as IP portfolio management.

• Corporate Finance 

A company requires capital to grow, and it comes in the form of either equity capital or debt. While some work related to corporate finance is outsourced to the law firm, especially for major deals, it is now a trend for in-house legal departments to run their own deals. In any case, in-house lawyers need a good understanding of investment laws, laws related to banking transactions and loan agreements, as well as disputes and litigation over such deals. 

This is even more important if you work as an in-house counsel in a bank, NBFC, a multilateral lender, a fintech company, or in private equity or venture capital firms, or family offices!

• Dispute Resolution

All mature companies tend to have many litigations or disputes and primarily looks at in-house legal teams to manage such matters with the help of outside litigators. This does not mean that you get to just refer the problem to an outside lawyer and sleep over it. You are in charge of briefing, strategy, and getting the right kind of service out of the external litigators. You are also in charge of deciding when to litigate aggressively and when the company must settle.

This requires you to have a great understanding of procedures, litigation strategy and substantial law involved in each matter. 

• Consumer Law

Consumer cases are on the rise and can cost a company a pretty penny if they are customer-facing businesses (as opposed to B2B businesses). It is the job of in-house counsels to minimize the cost of litigation, settlement and damages payouts. 

• Sectoral Regulations

Every business sector today has sectoral regulations and regulators that must be paid attention to. For example, for the telecom sector, there is TRAI, whereas for the advertising industry there is a self-regulatory body Advertising Standards Council of India. In-house counsels do a lot of work with respect to sectoral regulators and must comply to sectoral regulations. They also need to communicate with the regulators when there are notices and information sought.

• Government Procurement and contracts

This is another major area of work for many in-house counsels. Government is the biggest buyer in the economy, and working with the government is fraught with many risks. Payment delays are common, while there are convoluted, complicated and very long contracts to be negotiated and executed. Government contracts often run into hundreds of pages. This work is often susceptible to litigation as well.

• Contract Drafting and Negotiation

We may be writing this at the end, but this is probably the most critical skill of all for an in-house counsel. They draft several contracts per week. I once surveyed around 30 lawyers across different companies, and I was told that contract drafting and review work varied from 30%-100% of their workload. The average came to around 60%.

Being really good at drafting and negotiating contracts is a non-negotiable skill for every in-house counsel.

How do we help you to learn these skills in 50 weeks?

We have a well-designed course to teach you each of these skills within a span of 50 weeks, which is roughly a year. You need to give us 8-10 hours of time every week, and we would take care of the rest. For more information, check out this page: https://lawsikho.com/course/diploma-entrepreneurship-administration-business-laws

Here are the course modules below, for your quick glance. Even if you are not interested in doing a course right now, go through the syllabus just to check how many of these skills you already have, and how many you still need to learn.

COURSE MODULE

1. STRUCTURING A BUSINESS

Chapter: Sole proprietorship as a business structure for startups

Chapter: Structuring of a family business

The optimal structure for a family business

Taxation issues

Partition and family settlement

Chapter: Structuring a Partnership / LLP

Co-founders agreement

Basics of Partnership and partnership deed, registration procedures, dissolution

Basics of LLP and LLP Agreement, steps of incorporation, annual and periodic compliances, winding up

Chapter: Structuring a company

One person company

Advantages of company

Steps for incorporation

Annual compliances

Conversion of business from one form to another

MCA processes for inspection and clarifications

Chapter: Non-profit businesses

Procedure and key issues for the incorporation of a trust/society / non-profit company

Tax benefits for a non-profit entity

Structuring of a non-profit entity

Chapter: Startups and Early-stage businesses

MSMED Act

Advantages of registration

Registration process

Money recovery procedures for startups

Dispute resolution mechanisms

Benefits under SME procurement policy

Sample disclosure to be made under MSMED Act

Chapter: Appointment of advisors and remuneration models

Handout: Partnership Deed

Handout: LLP Agreement

Handout: Co-Founder’s Agreement

Handout: Memorandum and Articles of Association(as per Companies Act, 2013)

Takeaway: How to draft partnership deeds and LLP agreements

Takeaway: Drafting memorandum and articles of association of companies

Takeaway: Process for the incorporation of partnership, company and LLP

Takeaway: How to start a non-profit venture and process for claiming various government incentives for non-profits

Takeaway: Advisor agreement

Takeaway: All about shell companies

Takeaway: McDonald’s: A case study on governance in joint ventures

2. TAXATION, BASIC ACCOUNTING AND IMPORT-EXPORT

Chapter: Accounts for business

Elementary accounting and record-keeping for various forms of business entities (for a person who is not trained in finance)

Accounting and the Law

Financial planning for a business

Chapter: Corporate taxation

Corporate income tax

Minimum Alternate Tax (MAT)

taxation of a software product and SAAS companies

tax on the issue of capital (e.g. equity, bonus shares and convertible instruments) to different entities

transfer pricing

Tax deduction at source

Taxation of Software

Chapter: Goods and Service Tax (GST)

Indirect taxes: Introduction to GST

How to Determine GST Applicability To You

GST Framework – Dual GST, State GST, Central GST, Integrated GST

GST Registration Process (Who should register and when, registration process, Consequences of non-registration)

Advantages of working with GST registered company/vendors

How to calculate GST Rates for your Products / Services

Best Practices for GST Invoices

How to make GST payment

Input tax credit law

Composition scheme in GST

How to obtain GST Refunds and Rebates

Exemptions from GST

Compliance requirements and filing of returns

Impact of GST on import-export transactions

Chapter: Issues linked to tax strategy

Chapter: Export and import

Import and export duties, the process of import-export, incentives for exporters.

3. CORPORATE GOVERNANCE

Chapter: Introduction to corporate governance: how does a company manage its activities

Chapter: Corporate governance and Board of Directors

Chapter: Appointment of Directors

Chapter: Independent director – Appointment, roles and liabilities

Chapter: Meetings

Chapter: Can board and shareholder meetings be held through video conferencing

Chapter: Guidance note for meetings of the board of directors

Chapter: Sample board calendar for listed entities

Chapter: Repatriation of profit, Divisible Profits and Dividend

Chapter: Managerial Remuneration

Chapter: An outsider’s guide to dealing with a company?

Chapter: Related party transactions

Chapter: Regulation of listed companies

Chapter: A Primer on Governance of Foreign Companies doing business in India

Chapter: Corporate Fraud and protection mechanism under Companies Act 2013

Chapter: Corporate Social Responsibility

Chapter: Strategic Insights from Cyrus Mistry’s Exit from Tata Sons

Chapter: Founder – investor conflicts and corporate governance lessons from Flipkart, Snapdeal, Ola and Softbank

4. NEGOTIATION AND CONTRACT DRAFTING

Chapter: Contract drafting essentials- Elements of a contract

Chapter: How to become proficient at drafting contracts- drafting guidelines and checklists

Chapter: Pointers and checklists to ensure a risk-free contract

Chapter: Boilerplate clauses – Importance and customization

Chapter: Negotiation essentials

Important points that every entrepreneur or his advisor should know

Negotiation soft skills

Chapter: Inclusion of commercial intent in contracts

Chapter: Negotiating and drafting sample agreements

Non-disclosure agreements

Shareholders’ Agreement

Commercial lease

Handout: Periodic Webinars from general counsels, law firm partners, senior government officers and successful businessmen

Handout: Sample Agreements, checklists, application forms and documents

Handout: Industry updates from top law firms in India and Silicon Valley

Handout: Recruitment preparation and career guidance toolkit – learn about career opportunities for commercial lawyers, how to crack interviews, draft covering letters and CVs and convert internships into job offers (with video training)

5.  RAISING INVESTMENT; ANGEL ROUNDS, VC & PE DEALS

Chapter: Part A (Raising investment – Angel rounds, VC & PE deals)

Introduction to raising investment – financial and strategic investment

Business structuring and investment

Angel investments and regulation of angel funds

Steps in an investment transaction – negotiation, drafting and legal strategy

How to conduct due diligence?

Understanding non-disclosure agreements (NDAs)

Understanding capitalisation table and term sheets

Private placement process

Transfer of shares

Dealing with multiple investors

Shareholders Agreements and how to negotiate them

Exit issues in investment transactions

Advanced issues – Private equity, PIPES transactions, Strategic investment and Joint ventures

Chapter: Part B (Mergers and Acquisitions)

M&A Transaction structures – stages, consideration, and contracts

Impact of Ind AS and GAAR on M&A transactions

Elements to be included in a scheme of arrangement

Law on cross-border mergers – the impact of PoEM and thin capitalization rules

Role of Directors of acquiring and target companies

Takeovers of listed entities

Exemptions granted by SEBI under Takeover Code

Handout: Non-disclosure agreement

Handout: Shareholders and share subscription agreement

Handout: Term sheet

Handout: Due diligence report

Takeaway: How to negotiate shareholders agreements and term sheets (with case studies)

Takeaway: How to negotiate shareholders agreements with investors

Takeaway: How to conduct due diligence

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6.  INSTITUTIONAL FINANCE, LOANS AND ECBS

Chapter: How do you raise investment or loans to finance a business?

Chapter: Raising debt financing – syndicate loans vs. single bank loans

Chapter: Bank guarantees and securities

Chapter: Introduction to FEMA

Various types of bank accounts in India

Handling and remittance of foreign exchange

Current and capital account transactions

Chapter: External commercial borrowings

Raising finance by a non-profit entity from foreign sources

Chapter: Essential issues in a loan agreement

Chapter: Understanding syndicate loans

Chapter: Important clauses in a Syndicate Loan Agreement

Handout: Sample loan agreement from a domestic bank

Handout: Syndicate loan agreement for ECB

Takeaway: How to identify key issues in a loan agreement

Takeaway: How to identify important regulatory concerns in a foreign investment transaction

Takeaway: FCRA requirements for receiving donations

7. FOREIGN DIRECT INVESTMENT AND REGULATORY ISSUES

Chapter: DI restrictions on foreign investors

Chapter: FDI in different business structures Companies, Trust, LLP

Chapter: Sectoral regulations – FDI in e-commerce

Chapter: Entry-related issues – approval route, conditionalities and sectoral regulations

Chapter: Pricing restrictions

Chapter: Exit related issues

Chapter: Bank accounts for foreigners and handling foreign exchange

Chapter: Valuation, compliance and filing requirements

Chapter: Relaxations for foreign venture capital investors

Chapter: Negotiating exits with foreign investors

Takeaway: Sample FIPB approval application

Takeaway: Sample sectoral approval application

Takeaway: Sample FIPB and sectoral approvals

8.  EMPLOYEE MANAGEMENT LABOUR LAW AND BUSINESS LICENSES

Chapter: Employment agreement

Chapter: Labour law compliances

Chapter: Legal forms of incentives and perquisites

Chapter: Structuring ESOP& ESPS

Chapter: Intellectual property and employees

Chapter: Non-compete agreements, non-disclosure agreements

Chapter: Employee sharing/deputation

Chapter: Attrition management

Chapter: Trade licenses

Chapter: Industrial licensing and environmental compliance (for large companies, particularly manufacturers)

Handout: Employment agreement

Handout: Employee-sharing arrangement

Handout: Sample ESOP Plan

Handout: Sample board resolution approving ESOP Plan

Handout: Sample letter for granting stock options

9.  ARBITRATION AND DISPUTE RESOLUTION

Chapter: How to avoid disputes and drainage of resources through courtroom battles

Chapter: Arbitration, negotiation, arbitration clauses in contracts

Chapter: Structuring arbitration for a speedy and fair resolution

Chapter: How to develop a dispute settlement strategy

Chapter: How to use anti-suit injunctions in international transactions

Chapter: Introduction to commercial mediation proceedings

Takeaway: Sample clauses for institutional arbitration (from renowned arbitration institutions)

Takeaway: Sample clauses for ad hoc arbitration and their pros and cons

Takeaway: How to draft a customized arbitration clause for speedy and cost-effective arbitration

Takeaway: When to apply for anti-suit injunction

10.  INFORMATION TECHNOLOGY AND LAW

Chapter: Legal structure governing the Internet, electronic contracts and digital signatures

Chapter: Data protection under Indian law

Chapter: Offences under Information Technology Act

Chapter: Electronic evidence and the law

Chapter: Intermediary liability and compliance

Chapter: Payment gateways and legal documentation

Chapter: loud computing agreements and End-User License Agreements (EULA), privacy issues on the Internet.

Chapter: Essential Information Technology Contracts

Chapter: Outsourcing contracts

Chapter: Steps to deal with online intellectual property infringement

Handout: Statement of work

Handout: Master Services agreement

Handout: Sub-merchant agreement

Handout: Maintenance and Support Agreement

Handout: Privacy Policy

Handout: Terms of Service

Handout: Takedown Notice

Handout: Cease and Desist Notice for IP Infringement

11.  INTELLECTUAL PROPERTY RIGHTS AND IP MONETISATION

Chapter: Copyright

Copyright Act

Rights available to the copyright owner

Originality and Idea-Expression dichotomy

infringement of copyright

Exceptions to infringement (including fair use)

Copyright protection on the internet

Digital Millennium Copyright Act, software piracy

Chapter: Patents

Patent Act

Components of a patent application

International patent registrations

Rights available to patent holders

Requirements of novelty

Inventive step and industrial application

Product and process patents

Assignment and revocation

Patenting of biotechnology inventions and pharmaceutical products

Chapter: Trademark Act

Registration of trademark

Steps for international registration of a trademark

Rights available to a trademark owner

Goodwill, different types of marks such as service marks

Chapter: Monetization of intellectual property – Licensing and franchising agreements

Chapter: Trade secret law, employment contracts and protection of software

Handout: IP License Agreement

Handout: Franchisee Agreement

Handout: Assignment Agreement

Handout: End-User License Agreement

Takeaway: How to obtain copyright, trademark and patent registration in India

Takeaway: Procedure for international registration of trademarks and patents

Takeaway: How to enforce IP rights against imported items and fake products

Takeaway: DRM technologies and copyright law

Takeaway: Special court orders for protecting and enforcing IP rights

Takeaway: How to draft end-user license agreements (EULAs)

12.  MANAGEMENT PRACTICES AND LAWS

Chapter: Legal risk management – identifying and minimizing risks

Chapter: Building processes and internal policies

Chapter: Internal company policies

Security systems

Allocation of responsibility amongst officers

Imposing contractual obligations

Reporting structure

Chapter: Recruitment policy

Compensation policy

Performance management policy

Leave policy

Medical policy

Sexual harassment policy

Data protection and confidentiality policy

Grievance redressal policy

Whistleblower policy

Emergency policies

Media communications policy

Social media and blogging policy

Chapter: Key business agreements and risks

Distribution agreement

Marketing Agreement

Commercial leases

Consultancy Agreement

Collaboration/Co-branding Agreement

Advertising Agreement

Chapter: Mitigating risks of sexual harassment

Chapter: Online reputation management

Chapter: Key insurances necessary for business

Fire and Special Peril

Transportation

Keyman Insurance

Terrorism Insurance, Group Insurance

Public Liability Insurance

Professional Liability Insurance

Director’s and Officer’s (D&O) Insurance

Takeaway: Practical checklists for framing various internal policies of the company

Takeaway: Understanding insurance policies and their strategic use in the management

Takeaway: Sample D&O Policy and negotiation essentials

13.  OVERVIEW OF MAJOR SECTORAL AND INDUSTRY-SPECIFIC LEGISLATIONS

Chapter: SEZs

Law relating to SEZs (includes tax sops available to SEZs)

Types of SEZs

Comparison of SEZs with Export Oriented Units (EOUs) and Software Technology Parks (STP)

Chapter: Banking and financial laws

Chapter: Insurance: Regulation of insurance sector

Chapter: How mutual funds work and introductory fund structuring

Takeaway: Learn whether a particular business should be located in an SEZ, or an EOU or an ordinary exporter

14.  GOVERNMENT TENDERS AND CONTRACTS

Chapter: Legal basis of tenders – Article 14 and promissory estoppel

Chapter: Rules and procedures governing the procurement of goods and services for central government departments

Chapter: Essential terms in a bid document

Chapter: Public-Private Partnerships, EPC Contracts and Concession Agreements

Chapter: An overview of bidding methodology that the Government may adopt and the legal principles relating to the same – such as competitive bidding, first-come-first-serve, sealed bids, auctions, tenders.

Chapter: Legal compliances typically insisted upon by the Government for evaluating eligibility criteria of bidders

Chapter: Prohibition of unfair bidding practices – a discussion on bid-rigging

Chapter: Reservations for startups and SMEs

Handout: Notice inviting tenders

Handout: Public-Private Partnership and Concession Agreements

COURSE DETAILS

For more details click here

The post What Should I learn about Business Law to be Successful as an In-House Counsel? appeared first on iPleaders.

This article has been written by Ashutosh Singh, 5th Semester Ba.LLB(H), Amity law College, Kolkata

Introduction

“Darkness of Cages shall Allow you to Breathe

For Thou shall not be Killed of Inhumanity !!”

Every person has to be treated as a human being first, irrespective of the fact that such person is a criminal. Even so the accused is considered innocent till proven guilty by a court of law. It is a characteristic of our democratic society that even the rights of the accused are deemed to be sacrosanct, even though he is charged with an offence. 

Our statute is quite careful towards anyone’s “personal liberty” and hence doesn’t permit the detention of any person without proper legal sanction. It is provided by the article 21 of our constitution that there will be no person who shall be deprived of his life or personal liberty except according to procedure. The scope for corruption and connected malpractices arises at several stages in the day-to-day working of the Police. It can start at the time of registering a case, for taking a call to arrest or not arrest or for extortion or collecting ‘hafta’ for interfering in civil disputes, for producing false evidence and so on. 

The power of arrest is the most important source of corruption and extortion by the police officers. From the moment, a case is registered by the Police on a cognizable complaint, they get the power to arrest any person who may be ‘concerned in that offence’, either on the basis of the complaint itself or on credible information otherwise received. 

The procedure laid down by Article 21 must be followed in a ‘right, just and fair’ and not in any arbitrary, fanciful or oppressive manner. It is expected that the arrest should not only be legal but justified also. Even the Constitution of India, recognizes the rights of arrested person under the Fundamental Rights. Hence, the accused has been provided with certain rights under the law.

What is arrest?

Definition and meaning

Generally, a person who breaks the law is arrested. So, what is arrest? In general term, ‘arrest’ would mean that when a person is arrested they lose some of their freedom and liberty.  They are put under restraint.

The Criminal Procedure Code of 1973, however, that deals with the aspects of arrests, has not defined the ‘Arrest’. When a person is arrested, then the arrested person is taken into custody of an authority empowered by the law for detaining the person.  The person is then asked to answer the charges against him and he is detained so that no further crime is committed. 

At times, there is restraint by the legal authority but sometimes the person on his own submits to the custody of the person making the arrest. 

As per Legal Dictionary by Farlex, “Arrest” means “a seizure or forcible restraint; an exercise of the power to deprive a person of his or her liberty; the taking or keeping of a person in custody by legal authority, especially, in response to a criminal charge.”

In Indian law, Criminal Procedural Code 1973 (hereinafter referred to as CrPC), chapter V (Section 41 to 60) talks about Arrest of a person but it does not define arrest anywhere.

Types of Arrest: Two types of arrest

1. An arrest made in view of a warrant issued by a magistrate
2. An arrest made without such a warrant but in accordance with some legal provision permitting such an arrest

Who can arrest? 

The arrest can be made by police, magistrate and even a private person

Section 41(1) CrPC Says: Any police officer- may without an order from a magistrate and without a warrant arrest any person who has committed a cognizable offence, who is in possession of stolen property, or is a state offender, who obstructs a police officer in discharge of his duty, who attempts to escape from lawful custody, who is declared as a deserted from any of the Armed Forces of the Union, who is a released convict and breaches his contract of release etc.

Section 42 authorizes a police officer to arrest a person for an offence which is non-cognizable if the  person to be arrested refuses to give his name and residence.

Section 43 gives the right to a private person like you and me to carry out an arrest of a person who in his presence commits a cognizable or a non-bailable offence or who is a proclaimed offender. Section 44 arrest by magistrate as per section 44(1) of CrPC, the Magistrate has been given the power to arrest an individual who has committed an offence in his presence and also commit him to custody. 

However, CrPC exempts the members of Armed forces from being arrested for anything done by them in discharge of their official duties except after obtaining the consent of the government (section 45 CrPC).

Section 46 of CrPC explains how arrest is made with or without warrant.
Section 46(4) special protection as females, that forbids arrest of women after sunset and before sunrise, except in exceptional circumstances in which case the arrest can be done by a woman police officer after making a written report obtaining a prior permission from the concerned judicial magistrate of first class within whose local jurisdiction the offence is committed or the arrest is to be made.

Constitutionality of Section 107 and 151 of CrPC

For the purpose of arresting without a warrant, a police officer may pursue such an individual into any place in India as stated under Section 48. Section 49 of the Code says that the arrested person shall not be subject to any unnecessary restraint or physical inconvenience unless it is required to do so to prevent his escape.

Section 151 gives power to the police officials to arrest a person, without a warrant, on the suspicion that he may commit a cognizable offence. However, this comes with certain conditions: the anticipated offence should be cognizable and the officer should feel that the offence would be prevented only by an arrest of the suspect. Section 107 gives similar powers to the magistrate. However, Numerous petitions have been filed questioning the constitutional validity of these sections as it gives plenty of room for the misuse of powers under these sections.

Landmark Case Laws 

Birendra Kumar Rai vs Union of India 1992
It was held that to make an arrest the police officer need not be handcuff the person, and it can be completed by spoken words  also if the person submits to custody himself.

It was held in the case of Bharosa Ramdayal vs Emperor, 1941, that if a person makes a statement to the police admitting himself of committing an offence, he would be considered to submitting to the custody of the police officer. Also, if the accused goes to the police station as directed by the police officer, he has again considered to have submitted to the custody. In such cases, physical contact is not required.

In Kultej Singh vs Circle Inspector of Police, 1992, it was held by the court  that keeping a person in custody in the police station or confining the movement of the person in the precincts of the police station amounts to arrest of the person.

Medha Patkar v. State (2007): This is a case in MP regarding the Sardar Sarovar Project. Some landowners and other people who were affected by this project in MP gathered on the road, shouting slogans, demanding land for land and other rehabilitation measures.  The gathering was peaceful without disturbing public order and peace but despite this the Police took it upon themselves to beat the protestors and arrest all of them under Section 151 of CrPC and also summoned by the Magistrate under Section 107 of CrPC.There were women and children too among the protestors. When the protestors did not submit a personal bond then sending them to jail, still amounted to the violation of Article 21 of the Constitution of India.

Rights of an arrested person in India 

Introduction

The accused in India are afforded certain rights, the most basic of which are found in the Indian Constitution. Article 21 of Indian Constitution provides few rays of hope to the lives of arrested, under trials and convicts. The treatment of such people has to be humane and in the manner prescribed by law. Hence, the accused has been provided with certain rights under the law. 

The rights are as follows and have been discussed in the chapters that follow, of this project in detail.

They are as follows and there is a brief mention of the legal provisions for them. 

Grounds of Arrest: Right to be informed

This right has been given the status of a Fundamental right in the Indian Constitution.  Article 22(2) of the Indian Constitution says that “no person who is arrested shall be detained in custody without being informed as soon as may be, of the grounds of such arrest nor shall he be denied the right to consult, and to be defended by a legal practitioner of his choice.”
This right is very important for the person arrested as he may be innocent. If he gets to know of the grounds of arrest then it enables him to apply for bail or in appropriate circumstances for a writ of habeas corpus, or to make fast and suitable s arrangement for his defence. Also, it gives the arrestee the right that any one person close to him is informed about his arrest immediately.

Madhu Limaye Case is an example here.

The legal provisions for the same can be found in: 

Section 50(1). 55,75 of CrPC and Art 22(2) of the Constitution of India

Right to Silence 

Just because the accused /arrested person chose to be silent under interrogation doesn’t mean that he is guilty. There is much speculation if this right is to be exercised in modern times as mentioned in Justice Malimath Committee’s report.

Nandini Sathpathy vs P.L.Dani: In this case  it was mentioned that no one can forcibly extract statements from the accused, who has tevery right to keep silent if he so chooses.

The legal provisions for the same can be found in: 

Art 20(2) of the Constitution of India

Right to be released on Bail 

Article 21 of the Indian Constitution says that every individual shall have a right to liberty as per procedures established by law. However, an accused cannot be given all these liberties till he is proven innocent. But he needs to be informed that he has a right to apply for bail in bailabe offences and even in non-bailable offences, bail is granted by the Court after taking into factors such as nature or seriousness of the offence, the character of the evidence etc. 

Case Law: Uday Mohanlal Acharya v. State of Maharashtra

The legal provisions for the same can be found in:

Sections 50(2), 436, 437, 438 of  CrPC

Sections 42, 43, 56, 59, 169, 170, 436, 437 and Schedule I Column 5 of CrPC also confer the right to grant bail to the accused but by the police under certain rules.

Right to be taken before Magistrate without delay 

Whether the arrest was made with or without warrant. The person making such an arrest is duty bound to present the accused before the magistrate within 24 hours excluding the time taken for traveling from the place of arrest to the Magistrates’ court.

Case Law: State of Punjab v Ajaib Singh

The legal provisions for the same can be found in:

Sections 56,71,76 of CrPC

Rights regarding detention 

If the arrested person is not produced before a magistrate within 24 hours of the arrest, by the police officer then he shall be held guilty of wrongful detention.

This right has been created with a view-
i. that the arrestee is not compelled to give confessions, or as a means of compelling people to give information;
ii. So, the police stations don’t act like prisons for which they are unsuitable.

Case Law: Gunupati Keshavram v. Nafisul Hasan

The legal provisions for the same can be found in:

Section 57 of CrPC, Art 22(2) of the Constitution of India

Rights at trial 

Keeping with the international system of law, our constitution upholds the fair trial system and the same is also seen in our procedural law. Fair trial is necessary to protect the accused individual’s basic rights from unlawful and arbitrary deprivation and it is also based on the principle of natural justice.

Case Laws:

• Rattiaram v. Territory of Madhya Pradesh AIR 2012 SC 1485.

• Zahira Habibullah Sheik and Ors. v. Province of Gujarat and Ors  (2006) 3 SCC 374

The legal provisions for the same can be found in:

Article 14 and 21 of Constitution of India

Right to consult a legal practitioner 

The Supreme court upheld the right of consulting a legal practitioner by an accused as a Constitutional right under Articles 21 and 22(1) of the Constitution of India.

Case Law: Janardhan Reddy v State of Hyderabad is an example.

The legal provisions for the same can be found in:

Sections 41(D), 50(3), 303 of CrPC and Article 22(1) of Constitution of India

Rights to free legal aid 

In India, this facility is provided to all poor accused inspite of the severity of the crime they have committed. This is for the 3-tier justice system in totality at every stage. This service is provided both for the trial and appeal as neither the Indian Constitution nor does the Legal Services Authorities Act makes any distinction between them.

Case Laws: 

• Hussainara  Khatoon vs State of Bihar

• M.H.Hoskote v State of Mahashtra

The legal provisions for the same can be found in:

Section 304 CrPC, Articles 21, 39(A) of Constitution of India

Right to be examined by a medical Practitioner 

This is an absolute necessity to put on record any mark or injuries or ascertain the health of the accused when taken into custody and put it on record. Subsequently this also works as check to ensure if there was any torture by the powers that be during interrogation or during custody.

Case Law: Anil Lohande v State of Maharashtra  

The legal provisions for the same can be found in:

Section 53 and 54 of CrPC

Right of the accused to produce evidence 

Very important right to the proceedings of a fair trial.

Case Law: Joginder Kumar v State of U.P 

The legal provisions for the same can be found in:

Section 243(1), 273 of CrPC

Conclusion

The Code of Criminal Procedure, 1973 provides certain safeguards but till date the power of arrest given to the police is being misused.  It is believed till today that the police use authority in order to threaten arrested people and extort money from them. There have been reports that the police fail to inform the arrested people against the charges against them and do not provide them with adequate means of representation they should get.      Thus it is very important to bring changes in Criminal Justice Administration so that the State knows that its primary duty is to seize and reform the wrongdoer and not just punish him. All of the proceedings go according to the Rule of Law which regulates functions of all organs of the State’s Machinery. It also includes people and agencies conducting prosecution and investigation cases. 

It is the first and foremost duty of the police to protect all individuals and their rights in society which also includes the arrested people. Thus, it is the duty of the police to also protect the rights of the accused and make sure that they are treated fairly according to the proceedings established by law and not harassed unnecessarily. The police should make sure that the person arrested is informed about his rights like grounds of arrest, if he / she is entitled to bail and produced before a magistrate within twenty four hours.

The post Arrest and the rights of the arrested in India appeared first on iPleaders.

This article is written by Gautami Pradhan, a student at Symbiosis Law School, Noida. In this article, she discusses about Constitutionalism in the Indian scenario and the extent of its practical application.

Introduction

The constitution of a democracy consists of certain arrangements and provisions that control or ascertain the legal, social and political framework of a society and how it needs to be governed. Thus, constitutional laws or provisions are considered to be the supreme law of the land as they govern the decision making powers of the three organs of a democracy. Now considering these circumstances, inefficiency and inadequacy of the constitution may result in the rule of law of the land getting affected. Most modern societies or countries follow the practice of power separation of their governments into legislature, executive and judiciary. These bodies do not function exclusively but rather work interdependently while maintaining their autonomous nature.

Constitutionalism, in a general sense, is a concept or a complex of ideologies whose essence is limitation of power of the government and supremacy of law. Thus, the basic idea of constitutionalism is that the government should have limited powers and that the constitution provides the nation with the moral and legal framework which limits the powers of the state. The will of the citizens of that nation must govern this framework and must be reached through their consensus. The state is not free to do whatever it wants and has to follow the rule of law of the land.

According to the contemporary jurist Louis Henkin, Constitutionalism has the following 9 elements, these are:

• Government based off of the constitution
• Sovereign will of the people
• Power separation
• Democracy
• Independence of the judiciary
• Constitutional review
• Limited power of the state to amend or suspend some parts of the constitution.
• Civil control of the police and military
• Limited power of the government in relation to bills and laws regarding individual rights

These elements can be broadly divided or classified into two groups: One concerning power structure and the other, concerning the protection of rights. These two groups of elements work interdependently to safeguard the authority of the constitution, the freedom and limitations of the state and the protection of the people’s liberty.

State which does not abide by its limitations loses all its legitimacy and authority. In this manner, to safeguard the fundamental opportunities of the individual, and to keep up his/her character and dignity, the Constitution ought to be saturated with ‘Constitutionalism’, it ought to have some inbuilt confinements on the forces given by it to these legislative organs.

Jurisprudence and Background

The underlying foundations of constitutionalism go way back. It didn’t simply come into existence out of nowhere, instead evolved and advanced into what it is currently. In the year 1215, England’s King John was constrained or rather forced by a gathering of affluent nobles to sign a record called the Magna Carta. The Magna Carta set certain points of limitations on the lord’s capacity/powers. The practical importance of the Magna Carta has been overstated throughout the years, however, it did set a point of reference for limited powers of the state.

Moving forward, in the year 1689, King William III of England signed the English Bill of Rights. William III came into power through a movement of depositioning and replacement of King James II which came to be known as the Glorious Revolution. Essentially, the citizens of England were worn out and fed up of James’ pro-catholic strategies and welcomed William, who was a Protestant, to come attack their nation and become their new lord. The English Bill of Rights sketched out what rights English residents had, and put restrictions on the powers of the ruler and Parliament. The English Bill of Rights is a foundational document that inspired the American Bill of Rights.

English philosopher and theorist John Locke assumed an immense role in establishing the way of thinking of constitutionalism. Locke was English scholarly who built up the idea of Social Contract Theory. In talking about the history and nature of constitutionalism, a correlation is frequently drawn between Thomas Hobbes and John Locke who are thought to have safeguarded, separately, the idea of constitutionally boundless power versus that of sovereign constrained by the provisions of the social contract containing limitations on the power of the sovereign authority.

Hobbes and Locke both gave secular social contract theories. In other words, there was no place for God in them. Thus, these theories were in complete contrast to the theories of divine right. Divine Right theories held that all citizens must abide by the King’s order because he was the emissary of God, and hence disobeying him meant disobeying God. Nevertheless, these theories were sharply different from each other. 

The Social Contract Theory as per the British jurist Thomas Hobbes was mentioned in his book Leviathan and he believed that human beings were evil by nature. Thus, he was of the view that they required a supreme/sovereign authority to keep in check their evil ideas, impulses and acts, otherwise it could result in a state of perpetual war and humans would rob, kill, rape and disobey law and order. Thus, there would be impossibility of a peaceful life. Subsequently a ruler is required to keep up peace and maintain law and order, and that is the reason a sovereign is fundamental and he should be complied with. Although apparently this hypothesis gave outright power to the lord, there was actually a catch which came to be seen later on. Since, as indicated by Hobbes, a ruler was required as an authority to look after law, order and harmony in the public eye, it pursues that if the sovereign by his deeds or oversights neglects to keep up the lawfulness, the individuals hold the power to expel him. Subsequently, the privilege of upheaval or revolution was intrinsic in Hobbes’ hypothesis, however not explicitly referenced, and that is the reason the lord’s supporters, who at first acclaimed the hypothesis, later ended up condemning of it as they understood its revolutionary potential. 

The hypothesis of the British jurist John Locke as mentioned in his 2nd treatise on Civil Government in the year 1690 is that even though the ruler is sovereign, his power is restricted and not total (as Hobbes had declared). It is restricted by the common rights which each person has by the very virtue of being an individual. The ruler can’t infringe on, or meddle with, these characteristic rights which incorporates the right to speak freely, opportunity to practice one’s religion, opportunity to claim or procure property, and freedom.

These ideologies, theories and documents influenced the Constitutionalism in India. Our Indian Constitution is inspired by the western models of constitution. Our establishing fathers obtained the Parliamentary type of government and independent and autonomous judiciary from Britain, the directive principles from the Irish model, the fundamental rights from its US counterpart and so on. In this manner, the fundamental standards and state organizations set up in our constitution were not of our own creation. We acquired present day western ideas and current foundations from western nations and imposed them on our retrogressive, semi-medieval society.

Critical Analysis

In order to identify the position of Constitutionalism in India and to what extent is it present in the Indian legislative system, one must analyse the following provisions laid down under the Indian Constitution. These can be analysed on the basis of the provisions of the Constitution which limits the powers of the Government and establish the position of the sovereign. The first provision is found in the Preamble.

Preamble

The Indian Constitution was enacted on 26th November,2019 and the question whether the Preamble is a part of the Indian Constitution or not has been a great matter of concern. However, in the famous case of Keshavnanda Bharti v. State of Kerala, the 13 judges bench held that it was indeed a part of the Constitution.

According to Justice Subbarao in the Golaknath v. State Of Punjab case “Preamble is the soul of the constitution, without which a body in the form of state cannot be survived. The objectives of constitution ensure the dignified conditions for the people of India and provide them all rights and liberties within ambit of fundamental spirit of constitutionalism embodied in entire body of the Constitution” One of the objectives explained in the preamble is to constitute the Republic of India into a sovereign and secular nation. Secularism, which mirrors no state religion, implies each resident has a right or a privilege to practice religion of their own decision, which advances naturally freedom of worship and faith. Along these lines, It can be induced that preamble holds the soul of constitutionalism.

Judicial Review

The second provision is judicial review. Justice Marshall in Marbury v. Madison case, introduced the doctrine of Judicial Review and clearly stated that it is the duty of the judiciary to annul any law or order passed by the legislature which violates the provisions of the constitution and takes away from the individual rights of the citizens.

In the Indian Constitution the spirit of this ideology has been expressed in Article 13(2) –“Laws which are inconsistent to Part III of the Constitution shall be declared null and void.” I.R. Coelho V. State of Tamil Nadu (2007) case cemented this doctrine and established the superiority of basic structure theory which has in turn enhanced the Constitutionalism spirit.

Rule of Law

The first question that comes to our minds when we talk about the Rule of law is ‘what is law?’ The appropriate response of this inquiry lives in two rules that are- 

Due Process – it stands for judicial supremacy and furthermore there is a peril for legal or judicial absolutism in light of the fact that the court if not self-controlled may go past the limitations set by the constitution. 

Procedure set up by law- In India, there is a “Procedure set up by law” doctrine which prevails, embraced from Constitution of Japan. It is clearly stated in Article 21 of Indian Constitution. It demonstrates parliamentary sovereignty in light of the fact that in India, law is made by the council, it confines the judicial supremacy and just deduces the right to do literal interpretation of the laws, rules and regulations and not statutory development of laws.

Separation of Powers

The Constitution of India demarcates between the powers of the organs of Government. Articles 245 and 246 along with Schedule VII of the Constitution deal with the demarcation of law making powers between the Union and State governments. Now, under the Articles 256-263, the administrative relations between the two governments is clearly defined. Articles 264 to 291 deal with fiscal relations between the centre and state. This reduces the risk of clash between the centre and the state resulting in the smooth co-dependent functioning of the legislature. As the powers of the centre and the state are clearly demarcated, there is no scope for the use of arbitrary powers over any of the subjects.
Subjects having National importance come under the Union List whereas the subjects having regional importance come under the State List. Subjects In which both the centre and state have interest comes under the Concurrent list. Central Government made laws come under this but the State government can amend these laws depending upon the requirements of that particular region. This way, the separation of powers also promotes constitutionalism in India. 

Rights of the Citizens

Article 12-35 deal with the fundamental Rights which are guaranteed to all the Citizens of India and violation of which gives the Individual a right to approach the court under Articles 32 and 226 of the Indian Constitution. This shows that the citizens of a country also have the right to protect themselves from the arbitrary powers of the State. These Provisions ensure that Constitutionalism in India is practised extensively and the Constitution of India has certain provisions laid down that enable the proper functioning of the organs of the government so that they can serve the citizens of the country better with limited powers and supremacy of law of the land. Constitution of India also guarantees the people of India with rights which safeguard them against exploitation by the state.

Conclusion 

This brief discussion about the provisions of the constitution provides us with a vision to see the process going on in the political system of our country. Through our study we’ve found that there description of powers of organs of government are extremely detailed and are extensively laid down in the Indian Constitution , so that they can exercise their powers within the boundaries of constitution. This results in the Government acting within the boundaries of Limitations of their powers. In this way, In India, constitutionalism is undoubtedly present but there is only one exception that the doctrine of Rule of Law does not prevail in India as in England (regarding parliamentary sovereignty). It exists in India in form of natural justice principles to govern administrative functions. Judges are to promote the value of constitutionalism arising from a legal draft, drafted by constituent assembly constituted of representatives expressing their public opinion. Each provision has its own significance and if any provision isn’t expressly present in a constitution however its appearance is found in certain provisos or clauses, at that point it will be adequate to advance the spirit of constitutionalism.

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Corporate Social Responsibility (CSR) carries 2 marks in the bar exam. Students are advised to refer to the Companies Act, 2013 bare act while answering questions on the subject. 

Introduction

CSR initiatives have only been taken on a voluntary basis. In 2009, the Ministry of Corporate Affairs had released ‘voluntary guidelines’ on CSR, which were optional for companies to follow. However, CSR activities have been made mandatory under the Companies Act for certain classes of companies. Under the Companies Act, 2013, every company (including a foreign company which has its branch or project office in India) which has:

i) net worth of at least Rs. 500 crores,

ii) turnover of at least Rs. 1000 crores, 

iii) a net profit of at least Rs. 5 crores during any financial year, is required to mandatorily allocate at least 2 percent of its profits (calculated as per the average net profits for the past three financial years) to CSR initiatives. (Section 135, Companies Act) 

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Which initiatives qualify as CSR initiatives? 

The activities enumerated in Schedule VII of the Companies Act 2013 qualify as CSR initiatives and are listed below: 

1. eradicating hunger, poverty and malnutrition, promoting preventive health care and sanitation and making available safe drinking water.
2. Promoting education, including special education and employment enhancing vocation skills especially among children, women, elderly, and the differently abled and livelihood enhancement projects; 
3. Promoting gender equality, empowering women, setting up homes and hostels for women and orphans; 
4. Setting up old age homes, day care centres and such other facilities for senior citizens and measures for reducing inequalities faced by socially and economically backward groups; 
5. Ensuring environmental sustainability, ecological balance, protection of flora and fauna, animal welfare, agro-forestry, conservation of natural resources and maintaining quality of soil, air and water; 
6. Protection of national heritage, art and culture including restoration of buildings and sites of historical importance and works of art; setting up public libraries; promotion and development of traditional arts and handicrafts.
7. Measures for the benefit of armed forces veterans, war widows and their dependents. 
8. Training to promote rural sports, nationally recognised sports, para-olympics sports and Olympic sports; 
9. Contribution to the Prime Minister’s National Relief Fund or any other fund set up by the Central Government for socio-economic development and relief and welfare of the Scheduled Caste, the Scheduled Tribes, other backward classes, minorities and women; contributions or funds provided to technology incubators located within academic institutions which are approved by the Central Government; 
10. Rural development projects salaries paid to the company’s regular CSR staff and volunteers will be considered as part of CSR expenditure. 

The scope of the above-listed initiatives must be interpreted liberally, taking into account the broad essence of the above-enlisted initiatives. 

What initiatives do not count as CSR contributions? 

The Act excludes certain kinds of activities from the ambit of CSR, as follows: 

• Any contribution made to a political party, either directly or indirectly will not be considered as CSR contribution. 
• CSR contributions cannot be made in respect of activities which are undertaken by the company in the normal course of its business. 
• Any contribution made only for the benefit of the employees of the company or their family will not be considered as CSR contribution. 
• Any one-off event like marathons/ awards/ charitable contribution/ advertisement/ sponsorships of TV programmes, which is not part of the CSR project/programme will not be considered as CSR contribution. 
• Expenses incurred by the company for the fulfilment of any Act/Statute or regulations (such as labour laws, land acquisition laws) will not be considered as CSR contribution. 

How should a company which is required to make CSR contributions comply with its obligations under the law?

Step 1: The Company should establish a CSR Committee of the Board of directors comprising of at least 3 directors, of which at least 1 must be an independent director. A private or an unlisted public company which is not required to appoint an independent director is exempted from appointing an independent director, or if it is a private company having only two directors, they are allowed to appoint only two such directors to the Committee. 

Step 2: The Company should create a CSR Policy specifying the following: 

•  List of activities (from amongst those specified in Schedule VII of the Companies Act which can be undertaken) 
• A monitoring process for such activities.
• The policy must also specify 

Step 3: Preparation of Annual Report on CSR activities and inclusion of the must disclose the composition of the Corporate Social Responsibility Committee, CSR Policy, activities undertaken and expenditure as part of the Board’s report. The CSR policy of the company should also be disclosed in the report. Foreign companies operating in India should include the CSR report as an annex to their balance sheet. 

Step 4: In case the company has a website, the CSR policy (and activities) of the company should be disclosed on the website. 

Is it necessary for the company to execute the CSR activities by itself?

Note that as per the Companies Act, it is not necessary for a company to actively participate in CSR initiatives by itself – it is only required to make a financial contribution of 2 percent profits to CSR initiatives. It has the option to implement CSR activities through associated entities, but CSR initiatives it can also merely make a financial contribution towards CSR initiatives of other unrelated entities. It can even collaborate with other companies while running its initiatives. 

Note: That any project will be considered to be a CSR project only when it is undertaken through a registered society, a registered trust or a section 8 company (non-profit company). 

Such entities can be created by the company itself or its parent / sister companies (in case the CSR activities are proposed to be carried out through related entities). The entity must exclusively be created for the purpose of undertaking CSR activities or a special corpus has been created for executing a CSR initiative (as mentioned earlier). 

If the company is only interested in making a financial contribution to CSR initiatives of other entities, the company should ensure that the third party has an established track record of undertaking similar projects for at least three years. 

Can a company channelize profits from the CSR activity into its own business activities?

CSR activities may also generate profits. However, as per the rules, the surplus from any CSR activities cannot be part of business profits of the company – therefore, they must be kept separately. They cannot be ploughed back into the business of the company and must only be utilized in furtherance of the CSR responsibilities of the company. 

What are the consequences of non-compliance? 

In case of failure to provide details of CSR policies developed and implemented by the company (or in case of misstatements) in the report of the Board of Directors, the company and its officers who are responsible for the omission will also be liable to pay fine ranging from INR 50,000 to INR 25,00,000. In addition, they may face imprisonment of upto 3 years. 

Though there is no specific penalty provided for non-compliance with the spending requirement on CSR under Companies Act, 2013. However, Section 450 of the Companies Act, 2013 which is an overarching provision for punishing a company or its officers in case no specific punishment is provided for a particular offence in the Act states, any company or every officer of the company who are responsible for the omission will be liable to pay a fine of INR 10,000 along with INR 1,000 per day after the first day of non- compliance.

This provision can be applicable for not spending the mandatory contribution to be made for CSR under Companies Act, 2013. Though the applicable penalty is quite low in comparison with the liability under the Act; non-spending of mandatory contribution might lead to reputational risks for an organisation. 

Quiz

1.) In what year did the provisions for Corporate Social Responsibility came into force in India? 

A.) 2012 

B.) 2013 

C.) 2014 

D.) None of the above 

2.) Section 135 of the Companies Act requires every company whose turnover is above _______ to undertake Corporate Social Responsibility. 

A.) Rs. 100 crore or more 

B.) Rs. 1000 crore or more 

C.) Rs. 5000 crore or more 

D.) Rs. 2000 crore or more 

3.) What part of the net profit does a company need to spend on CSR activities? 

A.) at least 2% of its average net profit for the immediately preceding 4 financial years 

B.) at least 5% of its average net profit for the immediately preceding 2 financial years 

C.) at least 5% of its average net profit for the immediately preceding 3 financial years 

D.) at least 2% of its average net profit for the immediately preceding 3 financial years 

4.) How many Board of Directors are requred to constitute the CSR Committee? 

A.) At least 5 

B.) Only 4 

C.) At least 3 

D.) Maximum 2 

5.) Which of the following is not a function of the CSR Committee 

A.) recommend to the Board a policy which shall indicate the activities to be undertaken 

B.) recommend ways to increase net profit so as to increase the amount spent on CSR activities 

C.) recommend the amount of expenditure to be incurred on the activities referred 

D.) monitor the CSR Policy of the company 

6.) Would CSR activities undertaken outside India be taken into consideration as per the Companies Act? 

A.) Yes 

B.) No 

C.) Only for Public Companies 

D.) Only for One Person Companies 

7.) What is the maximum amount of penalty leviable on a company failing to fulfil its CSR responsibility? 

A.) 20 lakhs 

B.) 15 lakhs 

C.) 25 lakhs 

D.) None of the above 

8.) What is the maximum amount of penalty leviable on an officer of the company, who fails to fulfil its CSR responsibility? 

A.) 7 lakhs 

B.) 5 lakhs 

C.) 8 lakhs 

D.) 6 lakhs 

9.) Does a foreign company need to follow CSR laws of India? 

A.) Only if it falls under Section 380 of the Companies Act 

B.) Only if it falls under Section 2 (42) of the Companies Act 

C.) Both (1) and (2) are true 

D.) Neither (1) or (2) is true 

10.) Whether contribution to a political party be considered a valid activity under CSR Rules? 

A.) Yes, if the contribution is direct 

B.) Yes, only if the contribution is indirect 

C.) No 

D.) Both (1) and (2) are true 

11.) What is the maximum amount of net profits that a company can spend on CSR activities in a year? 

A.) 5% of profits of one year 

B.) 2% of profits of two years 

C.) 5% of profits of two years 

D.) None of the above 

12.) What is the minimum amount of penalty leviable on a company failing to fulfil its CSR responsibility? 

A.) 40000 

B.) 50, 000 

C.) 60000 

D.) 70000 

13.) What is the minimum amount of penalty leviable on an officer of the company, who fails to fulfil its CSR responsibility? 

A.) 10000 

B.) 20000 

C.) 30000 

D.) 50000 

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This article is written by Shreya Bajaj, pursuing a Certificate Course in Advanced Corporate Taxation from LawSikho.com. She discusses “Powers and Procedure for Income Tax Raids (Search and Investigation)”.

Income Tax Act, 1961 (hereinafter referred to as “the act”) is the code for levying and computing taxes on the income of the people and is a mandatory statute with consequences for violation of the law. With such a nature, it becomes necessary to have enforcement machinery in a mechanism to curb the proliferation of “Black Money”, that is, the unaccounted money on which tax has been avoided. One of the tools that the Income-tax department have with them is the power to conduct a survey, search and investigation in the premises of the suspected tax avoiders, this process being popularly known as “Raids”. 

1. Survey

This power primarily emanates from Section 133A and enables the tax authority to collect information about the financial transaction of various persons within various classes to help with or that are relevant to any proceedings within the act. It is a much-tempered power as compared to the search and seizure. Under this section, the officers authorised can enter any place within jurisdiction where any business or profession is carried out and inspect books of accounts, place marks of identification on them and even impound in his custody for reasons recorded, make inventory of stock, cash etc and verify values, and record statements that can be relevant in proceedings. A place where no business or profession is carried out can also be surveyed if it contains a book of account or such document relevant and all necessary facilities would, therefore, be extended to such officers in those places as well. Additionally, as per section 133(5), in case of ostentatious expenditure suspected in a function or ceremony, the authorities can require the furnishing of such information necessary about such expenditure from persons who would have the knowledge and such information can be used as evidence in tax proceedings. If a person required to furnish information in a survey doesn’t do so, summons can be issued to him to enforce compliance. Additionally, the act also contains the power to conduct door to door surveys over a geographical area under Section 133B. 

2. Search and Seizure

The power to conduct search and consequent seizure emanate primarily from Section 132 of the Act. It can be conducted after a survey or even straight away on the prerequisites being fulfilled. Its purpose is twofold: acquire evidence disclosing the person’s tax liability, and getting hold of assets that can represent undisclosed income and be used to be applied to discharge outstanding liabilities.

While being an indispensable tool in the hands of income tax authorities, it has fetters in the form of important procedures to be followed for such search and seizure to be legal.

• When can a search and seizure be conducted

As mentioned in 132(1), such an operation can be conducted when any among a certain set of officers has a “reason to believe” as a consequence of information possessed, that any of the following conditions have been fulfilled:-

Where a person to whom a summons or notice has been issued to produce any book of account or document and the person has failed to comply to produce or cause such documents to be produced Where a person to whom such a summon has been or might be issued will or would fail to comply in producing the documents relevant for any tax proceeding Where a person is in possession of bullion, money, jewellery or other valuable articles and such other things that represent the income undisclosed. 

Following are the officers entitled to form such a “reason to believe”:

Director-General/Director

Chief Commissioner/Commissioner

Joint Director or Joint Commissioner empowered by the Central Board of Direct Taxes (“CBDT”)

Thus, when a certain level of officers possess certain information, which can be in the form of credible information received from government departments, the intelligence wing, informants etc, and information from records of the tax department, from a survey conducted, from records of unexplained transactions, lavish expenditure, illegal investments and a plethora other sources, and such information leads to an application of mind that there is reason to believe that the aforesaid circumstances mentioned exist in a case, then such an operation can be conducted. But the operation itself can be conducted by lower-level officers as well as authorised. 

• Who can conduct a Search and Seizure

It is important to know this procedural condition to conduct a legal raid and also to defend oneself from illegal action by tax authorities. Only the following officers ( hereinafter referred to as “Authorized officers”)can conduct a search:

The Joint Director/commissioner/Assistant director/deputy director/Assistant commissioner/deputy commissioner/Income tax officer as authorised by the Director/Director-General or Commissioner/Chief Commissioner

The joint director/Joint commissioner can authorise any Assistant Director/deputy director/assistant commissioner/deputy commissioner/IT, officer

Thus, a certain level of officers like Assistant Director cannot institute such an action without proper authorisation from senior officers as mentioned in the statute. Additionally, as per the first proviso to Section 132(1) and Section 132(1A), relevant officers can be authorised by Chief Commissioner/commissioner to conduct action with respect to persons outside the jurisdiction and where delay in getting authority from that other jurisdiction’s commissioner can be prejudicial to revenue interests, and with respect to such other places or premises if the original authorisation is inadequate.  

Such a warrant of authorisation by the competent officer can sanction certain powers to an authorised officer in his search and seizure operation. Such a warrant of authorisation is as per Rule 112 of the Income Tax rules, 1962 with forms 45, 45A, and 45B for the appropriate circumstances. 

• Powers of an Authorised Officer

To enter and search any premises like any building/vessel/place etc where he has reason to suspect that the articles/documents in question are kept 

When the key to doing the above action is not available, then such an officer can break open locks of lockers/almirahs/safes etc

Such an officer can also conduct a personal search of a person who has just got out of the premises, is about to get in, or is inside and there is a reason to suspect that such persons are hiding their identity or of certain articles in question

To require persons in possession of electronic records to give the facility to access and inspect it

Placemarks of identification on documents or/and get extracts or copies made

Make an inventory of articles/things

Seizure: One important power within the power to search is the power of seizure. The officer can seize any book of account/other documents or other articles in the question of the raid, successfully found as a consequence of the search. There is an exception to this. If such things are stock in trade of the person’s business, that is, the things are to be used in the ordinary course of business and don’t function as a personal asset, then such articles cannot be seized and only an inventory or note can be made in respect of such items.

Other administrative processes: As per the manual of procedure for Income tax search and seizure, the authorised officer alone does not conduct such an operation. He heads a “Search party” that needs to be brief thoroughly beforehand on the person in question, time of the strike, tax records, information seeked, nature of business etc and care is assumed to let all this information be absolutely confidential until the time of the raid. Certain search kits are also provided to such a party. Additionally, a control room is set up in a local tax office with officers manning it including a custodian of seized articles. The search party coordinates with the control room throughout the search and updates on all important developments and to get guidance. 

• Taxpayers Rights and Duties

As per official publications emanating out of statutory provisions and practice (ITR Vol. 208 (St.) 1994), there are certain rights and duties of taxpayers that are recognised in such raids. 

Rights

• To see the warrant duly signed and sealed in the prescribed fashion
• To check and verify the identities of the search party members
• To have two independent and respectable people from the locality as witnesses

(witnesses are to be appointed by the officer in the beginning in all premises where there is a locality from which witnesses can be procured, such witnesses should not be related to either the tax department or the party searched, should be literate etc. Such witnesses have the duty to examine the operation and make sure there is no illegality, for instance, undue coercion in the record of statements)

• To have females searched only by female officers
• To have copies of the punchnama
• To have a copy of the statements recorded
• To call a medical practitioner if unwell
• To have children go to sell on their bags being checked
• To have meals at proper times
• To inspect or take extracts from documents seized
• To object to the retention of documents beyond 180 days of the seizure

Duties

• To allow unhindered access to the premises
• To sign the warrant, recorded statements, punchnama, inventories etc
• To identify all receptacles with the articles and to hand over the keys to such receptacles and identify and explain the ownership of assets found, and identify each person around explaining the relationship with himself
• To maintain peace, and cooperate with the investigation including after the raid in any follow-up information required in the investigation

In addition to the general duties as mentioned above, certain other duties can be inferred from the penal consequences of certain actions:

• Section 416 of Indian Penal Code (“IPC”): cheating by impersonation, by assuming another identity. Thus a person can be punished under this offence if he doesn’t identify himself accurately in the raid
• Section 204 of IPC: A person cannot remove any article without notice to the officer and if a person does anything with an article to prevent it from being produced as evidence in a court of law, he is punished under this section
• Section 179 of IPC: A person is punished under this when they refuse to answer relevant questions with respect to the search operation
• Section 181 of IPC: If a person lies under oath in a recorded statement, he is punished under this section. 
• Section 191 of IPC: If a person gives false evidence, then he is punished under this section.

Thus, with such consequences flowing from the IPC including the prosecution available under the Income Tax Act itself show that the person has to be very cautious and prudent and be absolutely truthful and sincere in such operations. 

It is also relevant to note that barring situations for which the act itself has special provisions, the provisions of the Code of Criminal Procedure would apply with respect to the procedure in search and seizure. For instance, in case of a woman staying in the premises who does not appear in public, she should be given the facility to withdraw, before the operation. 

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• Other important provisions

1. Restraint order: Under section 132 (3), a restraint order can be issued to a person not to remove or deal with the articles in question in any manner except with permission of an authorised officer. This is not deemed to a seizure and is invoked in cases such as when it is not practicable to seize right away due to special arrangements yet to be made when the search is inconclusive and is postponed to another date. 
2. Deemed seizure: This is under 132(1) second proviso and it states that when an article cannot be seized due to it being dangerous, or due its volume or weight, it shall be constructively seized and an order would be served on the person not to part with it or deal with it in any manner. 
3. Power to examine on oath: Under section 132 (4), the officer can conduct on the spot “oath examination” to elicit the maximum truth as refusing to give a statement would lead to an offence and an adverse inference and lying under oath is also an offence as described above
4. Requisition of accounts: Under section 132A, the officer can requisition accounts/documents kept in custody of other officers other departments of the government
5. Prosecution: For refusal to obey various orders that can be passed by an authorised officer in the course of the raid, the prosecution can be instituted under section 275A. 
6. Under section 132 (8), seized goods can be retained only for 30 days after the assessment order and it can be extended with reasons with the approval of the commissioner, but not for more than 30 days after all proceedings under the act are completed. 

There exist various other rules, and departmental instructions to deal with various minute aspects of the search including how to seize various kinds of articles and articles are valued. For instance, cash, FDRs, keys, pieces of art, bullion etc will all be treated differently. For instance, in case of perishable articles to be seized, assets can be released with an irrevocable bank guarantee furnished on the tax authority. However, where articles are to be used as evidence, they can not be released until the proceedings are over, irrespective of the nature of the articles and the value they can fetch. 

3. Survey and Search/Seizure

There are certain differences between the two with respect to the scope of power that the authorised officers have. Under the survey, only places deemed to be places of business or profession can be entered. In search, any premises including residential premises can be entered. Only books of accounts can be impounded in a search while all kinds of articles can be seized in a search. Statements are recorded in both, however, the only search consists of statement under oath having wide legal ramifications and increased risk in case of lying. There is no power of personal search in the survey while it does vest in the officers in case of a search operation. Thus, survey can be considered a preliminary operation with search and seizure more focussed once a reason to believe has been developed. 

4. Case Laws

There are a plethora of judgements by various tax tribunals and high courts holding various points of law regarding raids. For instance, that premises of a non-resident can also be searched [Ram Kumar Dhanuka v. UOI (2001) 252 ITR 205 (Raj)(HC)], or that survey operations can be converted into search operations only after record of reasons and satisfaction [Dr. Nalini Mahajan and others v. DIT (Inv)(2002) 257 ITR 123 (Delhi)(HC)]. However, certain important principles have been highlighted by the apex court as well, as given below

1. Pooran Mal v. DIT (1974) 93 ITR 505 (SC)

In this case, the constitutionality of the provisions of section 132 of the act and rule 112 of the Income-tax rules 1962 was upheld and were held not to be violative of Article 19 of the Constitution. The apex court held the law to be covered under “reasonable restrictions” and also held that evidence obtained in such search is not liable to be rejected. 

It cited another case (M.P. Sharma v. Satish Chandra, 1954 AIR 300) to assert that search and seizure is only a temporary interference with the right to hold the articles and premises and for limited purposes of investigation and any damage caused due it is a subject of redress in other proceedings. It also commented that there are many inbuilt safeguards including the fact that this power is vested only in the highest officers.

2. Rajendran Chingaravlelu (Mr) v. R. K. Mishra, Addl. CIT (2010) 320 ITR 1 (SC) (10)
   

In this case, the court shunned the practices of various officers of informing the media before an investigation is completed. Thus, a trial by media has to be strictly avoided in case of raids as well.

3. K.Choyi v. Syed Abdulla Bafakky Thangal & Ors. (1980) 123 ITR 435 (SC) (437) 

In this case, the court held that section 132 occurs in the -pre-assessment stage and can never be brought into action after an assessment has already been made to recover the tax. Thus, there can be no seizure once an assessment has been completed.

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

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This article is written by Suryansh Singh, a 3rd-year law student from Indore Institute of law. This article mainly discusses the role of domestic courts in influencing the International Commercial Arbitration process.

Introduction

As it can be seen that the colossal and radical boom in international trade and investment sector around the globe has resulted in the staggering growth of our economy. Though such tremendous growth in international trade and investment has tended to propel our economy, it most certainly gives rise to various contractual and trade disputes. Globalization has become one of the reasons which have triggered various countries of the world to take appropriate measures of dispute resolution.

One such mechanism is the International Commercial Arbitration which tends to resolve investment or trade disputes. Generally, people are in favor of the resolution through arbitration instead of getting it done by litigation, which is considered to be more time consuming and expensive.

However, judicial independence and intervention is also required in order to ensure fairness in the functioning of the arbitral process and for the protection of the interest of the public. The court’s supervision is required so that the arbitral system should not be damaged. Both the arbitral system and the judicial control should go hand in hand and the balance is to be maintained.

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Arbitration

In general, the term ‘Arbitration’ is used comprehensively in order to resolve disputes between the parties without the intervention of courts. It is a mechanism that is used as an alternative dispute resolution by the parties through there in order to get the dispute resolved. In the case of arbitration, the matter is presented before one or more arbitrators acting as a competent authority and the decision of the arbitrators is binding.

In India, the concept of Arbitration has been embedded under ‘The Arbitration and Conciliation Act, 1996’. Section 2(1)(a) of the Act states that the term arbitration means any arbitration whether or not administered by a permanent arbitral institution.

International Commercial Arbitration

International Commercial Arbitration is the mechanism used by parties to resolve any contractual or trade disputes arising out of international trade or investment. The process of this mechanism is free from the proceedings of the court. The mechanism of the International Commercial Arbitration is opted by parties in order to avoid the various technicalities and long procedures of the court.

This form of dispute resolution aims to resolve the matter economically or cost-efficiently and avoids unnecessary delays in its proceedings. The consent of the parties plays an important role in resolving the dispute arising on the matter referred to a competent authority who produces an award which can be enforced by the domestic courts.

Under section 2 (1)(f) of the Arbitration and Conciliation Act, 1996 the term International Commercial Arbitration means a mechanism of resolving disputes which arises out of legal or business relationships, whether possessing contractual character or not, considered as commercial, in the eyes of law in force in India and where one of the parties to the agreement who is not a  resident of India, any corporate body situated outside India, any association whose central authority or headquarter is situated in any other country or the government of any other country.

This process of dispute resolution tends to resolve any matter arising between the parties residing in different territories. They opt for this method to avoid the long procedure of the court and can get the matter resolved on their terms. This procedure is considered to be cost-efficient and less time-consuming.

This process of the arbitration includes all the terms and conditions that were already specified in the arbitration agreement and the award is produced on the basis of this arbitration agreement.

Indian perspective regarding international     commercial arbitration

As stated above, the mechanism of the International Commercial Arbitration is the process which deals with the contractual or trade dispute where the parties residing in different countries. This concept of International Commercial Arbitration is followed by  Indian law. When one of the parties involved in the matter is residing in a different country or is of foreign nationals and the arbitration seat is of India then in such case, the matter falls under the ambit of International Commercial Arbitration (Part I of the Arbitration and Conciliation Act). However, the matter falls under part II of the arbitration and conciliation Act if the seat is outside India.

What are the types of arbitration?

There are two types of International Commercial Arbitration popularly known as Ad Hoc and Institutional. Parties involved in the dispute have the liberty to choose either of the methods. Both Ad hoc and institutional commercial arbitration tend to resolve disputes on the basis of facts and circumstances of the matter with certain advantages and disadvantages to it.

Ad hoc arbitration

This type of dispute resolution is used by the parties involved in the matter free from arbitral assistance. The parties are obligated to specify all the aspects of this arbitration, for example, the procedure of conducting this arbitration, the number of arbitrators appointed for this matter, etc. 

Options available to parties who seek this type mechanism of arbitration in which the parties proceed without the rules drawn for them contains

• Alteration in rules drawn by any arbitral institution.
• Including or incorporating various procedures enacted by statute.
• Including rules drawn with the very purpose of dealing with the matters (international or national disputes) of ad hoc arbitration.

Institutional arbitration

This type of dispute resolving mechanism is used by the parties involved in the matter in which there is an institution specialized with a character which aids the arbitration process as drawn and provided by such institution. It is essential to understand that it is the arbitrators that possess the power to arbitrate and not the institution.

The procedural structure regarding the arbitration process has been enshrined under the institutional rules. These institutional rules also lay down certain important factors which authorizes the arbitral institution to be the appointing authority in case if the parties involved in the matter can’t agree, aid or help arbitrators whenever required, chalk out the timetable for the proceedings of the matter and decide the place of arbitration, sets or decides the fees to be charged by the parties involved in the matter by the arbitrators and in certain conditions review the arbitral award in order to avoid the unenforceability.

These institutions provide assistance to the arbitrators chosen by the parties involved in the matter.

What are the basic features of institutional arbitration?

Following are the essential features of an institutional arbitration

The agreement to arbitrate

The institutional arbitration is formed on the consent of the parties involved in the matter. There exist two forms of agreements regarding arbitration.

(1)   Arbitration agreement enshrined with the arbitration clause referring the future disputes to arbitration.

(2)   A submission agreement formed after the dispute has arisen.

Generally, without a legally sanctioned arbitration agreement, the award may not be enforced under the New York convention.

The choice of the arbitrators

The parties involved in the matter are conferred with the power and are at full liberty to appoint their own arbitrators who may possess extraordinary skills and knowledge regarding the subject matter of the dispute.

The decisions of the arbitral tribunal

The decision of the arbitral tribunal is in the form of an award which is final and binding on the parties involved in the matter. These arbitral awards are not subjected to any formal appeal, though the decision of the arbitral tribunal can be questioned.

The enforcement of the award

Awards issued by the arbitral tribunal courts are enforceable and binding on the parties involved in the matter. It can be enforced at an international parameter under the New York convention.

What is the role of the judiciary in the International Commercial Arbitration?

The question always arises on whether the intervention of the judiciary in the process of arbitration is required. Parties seek the process of arbitration in order to resolve the matter promptly, economically. It is argued that the arbitral process shall be free from any kind of judicial intervention in order to remain effective, but it is also contended that the role of courts in the arbitral process is necessary in order to impart just and fair decision. So in order to neutralize the following contentions, various laws and rules were formulated.

What are the theories behind judicial intervention?

In order to ascertain the level at which judicial intervention should take place must depend upon the essential nature of the arbitration. There are three different theories formulated on the particular issue. The first theory emphasizes the arbitration agreement and the arbitral award which should be considered similar to a court judgment. The second theory states that the award generated from an arbitration agreement is inseparable.

Thus an arbitral award falls under the ambit of contract and is slightly different from a court judgment. The third theory states that an arbitral award is similar to a court judgment only when the order of the court is needed for the enforcement, thus theory is considered to be a compromise between the first and second theory.

These three theories are popularly known as “jurisdictional theory”, the “contractual theory” and the “mixed theory”. Later on, a fourth theory was also developed which was known as the autonomous theory.

The jurisdictional theory

According to this theory arbitral process lies under the ambit of law, and a state is conferred with the power to regulate its process. While the theory states that the arbitral process in an independent process and is formed on an agreement between the parties involved in the matter but the validity of the agreement and the award, the powers conferred on the arbitrators and the enforceability of the award depends upon the law.

The parties to the matter are permitted by the law to resolve the matter through arbitration. Even after having extremely similar functions the only distinction between the arbitral process and the function of the court is that the arbitrators are appointed by the parties involved in the matter and judges are appointed by the state. This theory mainly focuses on the power of state law over the arbitral process.

 Contractual theory

This theory states that arbitration is based on an agreement formed between the parties involved in the matter in order to resolve the dispute. It gives importance to the contractual character of the arbitration agreement. Without an agreement, no parties can compel another to arbitrate a dispute however there certain situations in which the parties can be compelled to arbitrate for example compulsory arbitration.

Issues relating to the constitution of the arbitral tribunal is to be decided through an arbitration agreement. It is due to the arbitration agreement that the award issued by the arbitral tribunal is enforced and recognized.

 Fixed or hybrid theory

This theory is considered to be a compromise between the jurisdictional theory and the contractual theory. According to this theory, arbitration is a private agreement between the parties with the exclusive jurisdiction of the court in the dispute.

 Autonomous theory

This theory establishes a new perception regarding the process of arbitration. According to this theory, arbitration is an independent system. In order to remain effective and retain its true nature, it shall remain autonomous and free from any kind of judicial intervention.   

What is the role played by domestic courts in International Commercial Arbitration?

Courts play an important role in modern commercial arbitration and it’s as the involvement of the court in the arbitral process is necessary to protect evidence and to avoid damages. It recognizes the arbitration agreement between the parties involved in the matter and enforces the arbitral award. The role of domestic courts in International Commercial Arbitration is considered to be very crucial.

The Arbitration agreement

An arbitration is formed on an agreement between the parties involved in the matter which is legally sanctioned and binding on the parties. Under the New York Convention and the UNCITRAL model law requires that in order to take recourse of arbitration parties must initiate an agreement which then is referred to the court in order to determine its validity and whether to enforce it.

Arab African energy corp. ltd v. Olieproduckten Nederland BB.

In the instant case, the courts adopted a more progressive and comprehensive approach in interpreting the legality of an arbitration agreement.

Courts while determining the validity of the arbitration clause emphasizes the substance rather than on form. New York conventions and the model law directs the courts of contracting states to refer the matter for the arbitral process in order to resolve the dispute. The arbitration agreement is generally enforced by the courts, where the matter is of public policy.

Mitsubishi v. Solar Chrysler Plymouth Inc. 42 U.S 614(1985)

In the instant case the US Supreme Court in spite of public policy issues, by sustaining appeal where the federal court assumes exclusive jurisdiction in the matters in spite of arbitration agreement.

The domestic courts play a crucial role in validating the parties autonomy requiring them to resolve the dispute by referring the matter for arbitration where they have mutual consent to accept the terms of the valid arbitration agreement. Under certain situations, if a party to the valid agreement goes to the court for litigation and another party invokes the jurisdiction of the agreement then the court is bound to stay any action brought before it.

Boart Sweden AB v. NYA Stromnes AB(1992), 50 C.L.R.74(B.C.S.C.)

In the instant case it was stated that parties giving their consent in a contract where the claim is to be decided by the arbitrators instead of taking the assistance of the court, the parties shall be bound to hold that contract.

Chastain v. Robinson-Humphrey Co.957 F. 2d 851(11th Cr. 1992)

In the instant case, the Chastain court held that a contract signed by the parties under the normal circumstances within the purview of an arbitration provision becomes a sufficient ground for the court to send any dispute for arbitration. Under these circumstances, the parties mutually agree to resolve any dispute through the arbitral process including the from the validity of the contract.

Challenges to the arbitrators

Arbitrators are the authorities appointed by the parties involved in the matter in order to give an independent and unbiased performance in order to resolve the dispute. The arbitrators can be challenged by the parties if they failed to execute their functions properly. Generally, the courts intervene to set aside the awards issued if any question is raised regarding the decision of the tribunal which is considered to be partial or biased

Szilard v Szaz

In the instant case, the Supreme Court of Canada decided that parties involved in the matter must enjoy a sense of confidence and suspicion that the arbitrator is partial which will render an award being set aside.

There is a distinction between the term impartiality and independence. As enshrined under the English arbitration act 1996 impartiality becomes the ground for the parties involved in the matter to challenge the appointment of the arbitrators.

 AT&T Corporation v. Saudi Cables corp.

In the instant case, the court set aside the award issued by the arbitrator due to the nondisclosure of the business even though actual impartiality was not established.

The domestic court in order to maintain a fair and independent arbitral process keeps a check on the arbitrators. The domestic courts generally perform their supervisory jurisdiction to ensure impartial resolution of the disputes.

The island territory of curacao v. solitron device Inc.

In the instant case, the court decided not to set aside award even when the grounds of objection were known but were not taken promptly.

Interim measures by the domestic court

Domestic court possesses the power of taking interim measures on application by the parties under certain circumstances including such measures that may appear fair and convenient to the courts.

Domestic courts assistance while taking the evidence

Article 27 enshrined under the model law states that either the arbitral tribunal or the parties involved in the matter after taking the approval of the tribunal can approach the court seeking its assistance in taking evidence. After the request made by the arbitral tribunal or the parties, the court may under its jurisdiction execute the request to its rules on taking evidence. Under the model law parties to the matter are not at liberty to give consent to preclude the court’s competence in taking evidence.

If the domestic court’s assistance promotes International Commercial Arbitration instead of emphasizing the national arbitration laws then the scope of article 27 and other various provisions remains narrow in the ambit of national arbitration laws.

Recognising and enforcement of awards by domestic courts

An arbitration agreement and the award becomes binding when it is enforced by the courts. The party satisfying the award shall invoke powers of the courts in order to enforce the award and make it legally sanctioned like a courts judgment.

Under the New York Convention, the court’s intervention to enforce an award is regarding the matter related to public policy.

In the instant case of Soleimany v Soleimany, the English court under its competence denied enforcing the award based on the grounds of public policy as the contract between the parties was subject to the criminality of tax evasion.

Any sort of uncertainty or ambiguity in the arbitral process can be challenged by the parties to the matter or the parties are conferred with the power to appeal if there is any substantial question of law arising out of the award. In order to become an effective resolution mechanism, the arbitration recognizes the role of domestic courts. It is the duty of the domestic court to preserve the integrity of the arbitral process.

The concept of Arbitrability

The concept of arbitrability generally deals with the matters which are to be settled through arbitration and which is closely linked to the state policy. It depends upon the court to decide whether the dispute is arbitrable nature or not.

The concept of Separability

The concept of separability means an agreement of arbitration which retains its contractual character and exists independently. Domestic courts acting as a direct source for arbitral tribunals authority has also been recognized by the concept of separability.

Heyman v. darwins ltd.(1942) AC 356

In the instant case, the court held that even if the contract fails the arbitration clause relating to the matter will survive in order to resolve the dispute.

The concept of competence- competence

The principle of competence-competence is loosely based on article 16 of the UNCITRAL under which it has been stated that the arbitral tribunal may operate from its own jurisdictional competence with compliance to the existing arbitration agreement. For this instance, an arbitration clause consisting of a part of a contract shall be treated as agreement free from other contractual terms. Coming down from the concept of separability, the arbitral tribunal is conferred with the power to determine their own competence to determine the matter. Following international conventions and standards confer rights on the tribunal which is recognized by the courts.

The foundation of this concept is based on the tribunal’s competence to rule on its own jurisdiction even though the decision of the tribunal may be altered or cancelled by the court.

 Dalmia dairy industries v. National bank of Pakistan,(1978) 2 Lloyds’ Rep.223

In the instant case, the English court of appeal validated the rule of ICC conferring power on the arbitrators to decide the dispute or matter in their own competence.

SNE v. Joc oil case

In the instant case, the arbitral tribunal issued the award over the matter by assuming its competence through the concept of competence-competence. This decision was backed up by the court of appeal of Bermuda.

By conferring the right over the arbitral tribunal to determine their competence decreases the intervention of domestic courts and promotes International Commercial Arbitration. 

Conclusion

It can be concluded that arbitration is an alternative mechanism used by the parties involved in the matter in order to resolve the dispute. Under this process the parties through mutual consent enter into an agreement and award is issued by the arbitral tribunal which is to be enforced by the court. Thus arbitration needs the assistance of the court in order to remain effective. As it can be seen that with the colossal and radical boom in the international trade and investment around the globe has resulted in the staggering growth of our economy.

Though such tremendous growth in international trade and investment has tend to propel our economy it most certainly gives rise to various contractual and trade disputes. Globalization has become one of the reasons which have triggered various countries of the world to take appropriate measures of dispute resolution.

One such mechanism is the International Commercial Arbitration which tends to resolve investment or trade disputes. Generally, people are in favour of the resolution through arbitration instead of getting it done by litigation, which is considered to be more time consuming and expensive.

However, judicial independence and intervention are also required in order to ensure fairness in the functioning of the arbitral process and for the protection of the interest of the public. The courts supervision is required so that the arbitral system should not be damaged. Both the arbitral system and the judicial control should go hand in hand and the balance is to be maintained.

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This article is written by Suryansh Singh, a 3rd-year law student from Indore Institute of law. This article mainly discusses the schools of Hindu law acting as the major source in developing the roots of Hindu law.

Introduction of Hindu Law

Hindu law is considered to be the most ancient and prolific law in the world. It has been around every phase. It is about 6000 years old. Hindu law has been established by the people, not for the purpose of removing any crime or transgression from society but it was established so that the people will follow it in order to attain salvation. Originally Hindu law was established so that the need of the people gets fulfilled. The concept was initiated for the welfare of the people.

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Sources of Hindu law

There is the two-fold classification of the sources of the Hindu law

• Ancient sources

• Modern sources 

Ancient source 

Ancient sources are the source that developed the concept of Hindu law in ancient times. It is further classified into four categories

• Shruti
• Smriti
• Customs
• Digest and commentaries

Shruti 

The term Shruti means what has been heard. It contains the sacred words of the god. This source is considered to be the most important and essential source of all. Shruti’s are the sacred pure utterance that has been enshrined in the Vedas and the Upanishads. They have religious nexus with a person and helps him in a way to attain the knowledge of salvation and incarnation. It is considered to be the primitive source containing the knowledge of the law.

Smritis

Smritis are considered as text which has been remembered and then interpreted by the rishis throughout the generation. There is a further classification of the term Smrities which are as follows

• Dharma Sutra (Prose) 
• Dharmashastras (Poetry).

Commentaries and digest

The third ancient source of Hindu law is commentaries and digestives. Commentaries and digestives have expanded the scope of Hindu law. It played a very major role in developing the very concept of Hindu law. It helped in the interpretation of the smritis. Single interpretation of the smritis is called as a commentary while different interpretations of the smritis is known as digestive. Dayabhaga and Mitakshara are considered to be the two most important commentaries.  

Customs 

Customs is the tradition that has been practiced in society since ancient times. It is the type of practice which is under the continuous observation of the people has been followed by the people. 

Further, the customs have been classified into two categories-

• Legal customs 
• Conventional customs

Legal customs

Legal custom is those customs which are enforceable or sanctioned by law. It can’t be deemed invalid until the law itself declares it invalid. There are two types of legal customs.

Local customs 

Local customs are the customs that are practiced in a local area. This type of custom is not highly recognized.

General customs

General customs are the customs or traditions which are practiced in a large area. This type of custom is highly recognized by people.

Conventional customs

Conventional customs are customs that are related to the incorporation of an agreement and it is conditional. 

What are the essentials of a custom?

Following are the essential points which constitute a custom-

• A customs must be continuous in practice
• A custom should not be vague or ambiguous
• A  custom must have time antiquity
• There must be a complete observation of the custom
• It should be certain and clear
• A custom must not oppose the public policy which will affect the interest of the general public.

Deivanai Achi v. chidambaram (1954) Mad. 667.

In the instant case it was held that in order to become legally sanctioned by law and binding on the people a custom must be continuous in practice, it should not be vague and ambiguous and should not oppose the well established public policy. A customary rule must be in the complete observation of society.

Laxmi v. bhagwantbuva AIR 2013 SC 1204

In the instant case, the supreme court stated that a custom becomes legally enforceable when the majority of people make the continuous use of such practice.

Onus 

Generally when a custom attains the judicial recognition no further proof is required, however in certain cases where the customary practices do not attain the judicial recognition, the burden of proving lies on the person who alleges its existence.

Munna lal v. Raj Kumar AIR 1972 SC 1493

In the instant case the supreme court stated that a custom brought before a court several times, the court might hold that such custom has been enforced by the law with the necessity of its proof.

Modern sources

Judicial Decisions 

judicial decisions are considered to be the most important ingredient of modern sources. Judicial decision is considered to be authoritative and binding. The doctrine of precedent was established and it was applied in the cases resembling the same facts and circumstances of a case already decided.

The legislation is considered to be the codification of customs which plays an essential role in expanding the concept of Hindu law. Legislations are enacted by the parliament.

Justice equity and good conscience

Justice equity and good conscience is the basic rule of law. This rule of law applies when an existing law doesn’t apply in a case before the court decides the particular matter by applying its rationality and the concept of justice equity and good conscience.

This rule is considered to be the fairest and reasonable option available to a person.

In Gurunath v Kamlabai the supreme court held that in the absence of any existing law the rule of justice equity and good conscience was applied.

Kanchava v. girimalappa (1924) 51 IA 368

In the instant case, the privy council barred the murderer from inheriting the property of the victim.

Legislation

The legislation is considered to be the most important source of Hindu law. It is considered as a base for the growth of Hindu law in the modern world. It has been stated that in order to meet the new conditions of the society it became a necessity to codify the law. 

Schools of Hindu law

Schools of Hindu law are considered to are the commentaries and the digestives of the smritis. These schools have widened the scope of Hindu law and explicitly contributed to its development.

The two major schools of Hindu law are as follows-

• Mitakshara 
• Daya Bhaga

Mitakshara 

Mitakshara School: Mitakshara is one of the most important schools of Hindu law. It is a running commentary of the Smriti written by Yajnvalkya. This school is applicable in the whole part of India except in West Bengal and Assam. The Mitakshara has a very wide jurisdiction. However different parts of the country practice law differently because of the different customary rules followed by them.

Mitakshara is further divided  into five sub-schools namely

• Benaras Hindu law school
• Mithila law school
• Maharashtra law school
• Punjab law school
• Dravida or madras law school

These law schools come under the ambit of Mitakshara law school. They enjoy the same fundamental principle but differ in certain circumstances.

Benaras law school

This law school comes under the authority of the Mitakshara law school and covers  Northern India including Orissa. Viramitrodaya Nirnyasindhu vivada are some of its major commentaries.

Mithila law school

This law school exercises its authority in the territorial parts of tirhoot and north Bihar. The principles of the law school prevail in the north. The major commentaries of this school are Vivadaratnakar, Vivadachintamani, smritsara.

Maharashtra or Bombay law school

The Maharashtra law school has the authority to exercise its jurisdiction over the territorial parts including Gujarat Karana and the parts where there is the Marathi language is proficiently spoken. The main authorities of these schools are Vyavhara Mayukha, Virmitrodaya, etc.

Madras law school

This law school tends to cover the whole southern part of India. It also exercises its authorities under Mitakshara law school. The main authorities of this school are Smriti Chandrika, Vaijayanti, etc.

Punjab law school

This law school was predominantly established in east Punjab. It had established its own customs and traditions. The main commentaries of this school are viramitrodaya and it established customs.

Dayabhaga school

Dayabhaga school predominantly prevailed in Assam and West Bengal. This is also one of the most important schools of hindu laws. It is considered to be a digest for the leading smritis. Its primary focus was to deal with partition, inheritance and joint family. According to Kane, it was incorporated in between 1090-1130 A.D.

Dayabhaga school was formulated with a view to eradicating all the other absurd and artificial principles of inheritance. The immediate benefit of this new digest is that it tends to remove all the shortcomings and limitations of the previously established principles and inclusion of many cognates in the list of heirs,  which was restricted by the Mitakshara school.

In Dayabhaga school various other commentaries were followed such as:

• Dayatatya 
• Dayakram-sangrah 
• Virmitrodaya
• Dattaka chandrika

What is the difference between Mitakshara and Dayabhaga school?

The difference in relation to the joint property

1. Under Mitakshara school right to ancestral property arises by birth. Hence the son becomes the co-owner of the property sharing similar rights as of fathers. While in Dayabhaga school the right to ancestral property is only given after the death of the last owner. It does not recognise the birth right of any individual over an ancestral property.
2. Under the Mitakshara school the father does not possess the absolute right to alienate the property but in daya bhaga the father has absolute right of alienation of the ancestral property as he is the sole owner of that property during his lifetime.
3. Under Mitakshara school the son attains the right to become the co-owner of the property he can ask for the partition of the ancestral property even against the father and can demand for his share but in case of Dayabhaga school son has no right to ask for the partition of ancestral property against his father.
4. Under Mitakshara school the survivorship rule is prevalent. In case of the death of any member in the joint family, his interest shall pass to other members of the family. While in case of Dayabhaga school the interest of the member on their death shall pass on to their heirs like widow, son, daughters.
5. Under the Mitakshara school the members can’t dispose of their share of property while undivided while in daya bhaga the members of the family enjoys absolute right dispose off their property.

The difference as regards to inheritance

• Under Mitakshara the rule of blood relationship or consanguinity is followed in case of inheritance whereas in case of Dayabhaga school the inheritance is governed by the rule of the offering of pinda.
• Under Mitakshara school the cognates are postponed to agnates or not preferred upon agnates while in case of Dayabhaga cognates are preferred upon the agnates.
• Mitakshara school expanded its recognition to a very limited extent in regards to the recognition of the doctrine of factum valet but Dayabhaga, on the other hand, has expanded it recognition to the full extent.
• Under the Hindu law the difference between the Mitakshara school and the Dayabhaga school is not recognised as in the present scenario there exists one uniform law of succession for all the Hindus.

The doctrine of factum valet

The doctrine of “factum valet quod fieri non debuit” means what ought not to be done becomes valid when done. This principle was formulated by the authors of the Dayabhaga school and was recognised to a limited extent by the followers of the Mitakshara school. The doctrine of factum valet states that once an act is done or a fact is accomplished it can’t be altered by the written texts of laws. As the fact is considered to be a concrete establishment and is deemed to be legally binding.

Conclusion

It can be concluded that Hindu law is considered to be the most ancient and prolific laws in the world. It has been around every phase. It is about 6000 years old. Hindu law has been established by the people, not for the purpose of removing any crime or transgression from society but it was established so that the people will follow it in order to attain salvation. Originally Hindu law was established so that the need of the people gets fulfilled. The concept was initiated in for the welfare of the people. There is the two-fold classification of the sources of the Hindu law

• Ancient sources
• Modern sources 

Schools of Hindu law are considered to be the basic source of Hindu law which constituted in the development of the Hindu law from its roots. It is also known as the commentaries and the digestives of the smritis. These schools have widened the scope of Hindu law and explicitly contributed in its development.

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

I spent a good part of my weekend with a close friend, a VP legal of a finance company. He was helping me to figure out what to teach in a banking and finance litigation course.

This is an in-house lawyer who is meticulous, has every update on his fingertips and is respected for the depth and breadth of his knowledge. He has overtaken many senior lawyers to become a VP in a big private equity and finance company thanks to his sheer knowledge and ability to apply the same to complex situations.

He is totally the nightmare client of every law firm partner he hires for any work because he is going to take you to the cleaners if you bumble around with his mandate.

And he told me something very important in the course of our discussion. We talked for hours and hours on this theme, and I was fascinated! I do not want to take his name here because I have not taken his permission to share our conversation with the public, and I intend to continue to pick his brains in the foreseeable future.

I have spent several years now trying to understand what kind of premium learning products we could create for law firm partners. 

With law firms and in-house legal teams, we have so far only managed to create courses that cater to entry-level to mid-level lawyers. We have so far not succeeded in creating or conceptualizing a program that would appeal to the partner level people in a big law firm. Even with our recent Legal Practice Development course, we are at best hoping to tap into senior associates and principal associates at best, and we have mostly attracted founders of boutique law firms and litigation chambers. 

However, what my friend told me was eye-opening. I spent the next few days talking to other in-house counsels. We had a sense of this but had no clue that the problem was so widespread.

In a law firm, you always specialize. Very soon you begin to do the same kind of deals or work. You often deal with a finite set of legal instruments and legislation. Things are a little better in disputes and arbitration teams in law firms, but even they must specialize in big law firms. 

This specialization is very important from a profitability and scalability point of view. If you do a lot of the same type of work, you tend to get that work done faster, productivity goes up, it is easier to train your team, and having seen a lot of deals of a similar nature you know what are the red flags to watch out for, and where the twists and turns in the tale may come. 

And that is why clients often go to highly specialized law firm partners with a specific skill set and extensive experience in certain kinds of work.

At the same time, over-specialization over time can become one’s Achilles heel. 

If you are a top dollar financial transactions lawyer, negotiating massive loan and project finance agreements day-in and day-out, you may not remember to get updated on the latest insolvency judgments or stay updated about amendments to a certain agricultural indebtedness act in a random state.

If you are an arbitration partner, it is unlikely that you are always updating yourself on the above issues either. You know how to look up the law when required, do you need to be an encyclopedia of laws?

That’s not how an in-house counsel, who instructs you, thinks about this situation though. He/she has a different take on it. I will come to that shortly.

Staying updated outside their immediate area of interest is a massive challenge for law firm partners, while they constantly get judged for the same by their primary clients, the in-house lawyers.

In-house counsels on the other hand, by the nature of their job, have to handle varied kinds of matters. If one day they are defending the company against a class action suit, another day they may have to deal with the environment ministry to get a project clearance. Sometimes it is an acquisition deal going on, and another time they have to prepare the company for getting listed. Contract drafting of different kinds and all sorts of disputes are dime a dozen. They have to jump from business structuring to labour law compliance and then on to engaging with policy professionals with equal elan. 

Naturally, they are curious about every bit of law or regulation that may even tangentially apply to their company because they are after all the last line of defense. They cannot let anything slip.

And usually, they do not get to specialize. Many of them intentionally do not specialize, because if they want to become a general counsel (chief legal officer), for that they must have an understanding of a variety of laws, rather than just a narrow field. For this reason, in-house counsels make sure that they get to work in different sectors throughout their careers so that in senior years they can claim the kind of diverse and varied experience that a general counsel requires. 

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So we have a situation where the in-house counsels, the clients, have generalized knowledge of varied areas of law, and the service provider, the law firm partner, rarely has that. The law firm partner, on the other hand, may ask why he must have diverse knowledge. Is it not his specialist experience that the client is paying for?

The truth is that a lot of work that law firms used to do is now going to in-house legal teams. In-house legal teams have grown in size, stature, and depth, and the trend is in favour of corporate India spending more on in-house teams than on outside law firms.

This dynamic is fundamentally altering the economics calculations of the legal industry.

In-house counsels, therefore, would be more and more demanding and judgmental in times to come, while law firm partners will have to be super-specialized to survive in a more competitive environment where the more staple, easy and general work goes to in-house legal teams and not to law firms.

Hyper specialized work also makes sense from another perspective. Hourly rates are higher for such work, and in-house teams are totally out of depth when such work comes up. An example could be handling a raid by the competition commission. So law firm partners must specialize even narrowly in the decades to come. 

However, this also means that law firm lawyers have to work harder to earn the respect of their clients (the in-house lawyers), and would need to have viable, easy avenues to update and train themselves in varied areas of business laws, and perhaps even public law, despite being hyper-specialized in their area of practice.

Law firm partners who know more about things outside their area of specialization, and therefore can match in-house counsels in terms of diversity of legal knowledge, will therefore be liked and respected more by in-house counsels as opposed to those partners who have no clue about things outside their area of practice.

There would certainly be more premium on knowledge, and what can be better for us? To be honest, we are still not very clear what our specialized product or services for law firm partners would look like, and it seems that our R&D will last for a while more. It would probably be a more sharp and curated version of the current Master Access program. Definitely a more expensive version.

However, we have a fantastic course for newbie in-house counsels or lawyers who want to impress their corporate clients with their wide knowledge of various business laws. It is our oldest course, and here is the link. Even if you are in an in-house counsel job for a while and feeling stuck in your career, I promise, you would want to check this out. 

Check it out and let me know what you think I should add to this course.

Here is an article on what in-house counsels must learn about business laws that you may need to read.

Here are the other courses that close on the 15th of September.

Diploma

Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution 

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

Diploma in Entrepreneurship Administration and Business Laws

Executive Certificate Courses

Certificate Course in Advanced Corporate Taxation

Certificate Course in 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 Securities Laws, Insider Trading and SEBI Litigation

Certificate Course in Media and Entertainment Law: Contracts, Licensing and Regulations

Test Preparation

Judgment Writing and Drafting Course for Judicial Services

The post In-House Counsel v. Law Firm Partners: Knowledge Deficit appeared first on iPleaders.

This article has been written by Rishabh, B.A. LL.B. (Criminal Law Hons.), National Law University, Jodhpur.

Abstract

The object of this paper is to analyse the DNA Technology (use and application) Regulation Bill-2019 by analyzing the current position of law in regard to use of DNA. This paper also analyze the question that what is a DNA and how is it relevant in current legal system. Further, the paper analyze the existing legal provision which are mentioned in other statutes and finally the paper discuss the provisions of the bill,  how it is beneficial for the society and how it will harm the rights of the people.

The greatest single achievement of nature to date was surely the invention of the molecule DNA

-Lewis Thomas

Introduction

The DNA (Deoxyribonucleic Acid) is a complex molecule which contains all the information necessary to build and maintain an organism. The DNA isn’t present in red corpuscles of blood, its presence can be traced in white corpuscles of blood and all the living things have DNA. It appears like a twisted rope ladder or in the double helix structure.  DNA can be extracted from saliva, hair, blood, bones, semen and from other organs of the body. Its structure varies from personality to personality and each and every living individual have a unique DNA.

The DNA of every person is unique in itself, and variation in the sequence of DNA can be used to match individuals and identify them[1]. In a current technological world this technique (DNA Technique) helps the identification of criminals on the scientific lines. The DNA techniques is basically made up of amino acids and it is matched with the bases which provide the key to determine the genetic blueprints of a living being.

History

In the year 1985, first time the DNA evidence accepted by the Indian courts. But, it was not till January 2019 that a bill on the issue of DNA was first time introduced in parliament. The idea to draft a DNA bill regulating the use of DNA samples for crime related reasons was advanced by the Department of Biotechnology in 2003[2]. The department of biotechnology established a DNA profiling advisory committee to make recommendations for the drafting of the profiling bill 2006 and from 2003 to 2007, after four years of effort which eventually became the Human DNA Profiling Bill, 2007.

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In the year 2007, the draft Human DNA profiling bill was made public. But, it was never introduced in the Parliament and in January 2013, the government through the Department of Biotechnology created an expert committee to deliberate on concerns raised about the bill and to examine the 2012 draft by finalizing the text.

After finishing it up in late-2014 they have circulated the draft within the Ministry of Science and Tech. for their comments and in 2015, the government planned to present the bill in the monsoon session of parliament but it wasn’t presented due to too much criticism over privacy and data security issues.

Later, in 2016 the bill was listed for introduction, consideration and passing. And in 2018 the Law commission of India report in its 271^st report prepared the draft bill named the DNA based technology bill 2017. Which was presented in parliament in 2019.

Indian legal system

In the legal arena DNA analysis has become one of a common form of evidence in a criminal trials and so many countries have specific laws over it. It is not only restricted to criminal cases, it is also used in civil cases (e.g. for determination of paternity of identity). Although, till now there is no specific legislation which can provide specific guidelines about the need and use DNA in investigation. Moreover, there is no specific legislation/provision under Code of Criminal Procedure, 1973 and Indian evidence Act, 1972 to manage forensic science, technology and science issues under a criminal trial.

Under article 51A (h) and (j) of The constitution of India it is provided that “it shall be the duty of every citizen of India- to develop the scientific temper, humanism and the spirit of inquiry and to strive towards excellence in all sphere of individual and collective activity so that the nation constantly rises to higher levels of endeavor and achievement”

Section 53[3] of Code of Criminal Procedure (Examination of accused by medical practitioner at the request of police officer) authorizes a police officer to get the assistance of a medical practitioner in bona fide manner for the purpose of the investigation. But, it doesn’t allow a complainant to collect blood sample, semen, etc. for bringing the criminal charges against that particular person/accused. The Code of Criminal Procedure (amendment) Act, 2005 has brought two new section in Code of Criminal Procedure which authorizes the investigating officer to collect DNA from the body of the accused and the victim of a case. 

Though the explanation to Section 53, 53A and 54[4] of the CrPC, 1973 was amended in the 2005 to clarify the scope of medical examination of the accused, particukarky with regard to the extraction of bodily substances, and specifically to use of DNA profile technique. In the case of Krishna Kumar Malik vs State of Haryana[5] the Supreme Court said that after the incorporation of Section 53(A) in the Criminal Procedure Code, w.e.f. 23.06.2006, brought to our notice by learned council for the respondent-state, it has become necessary for the prosecution to go in for DNA test in this kind of cases, facilitating the prosecution to prove its case against the accused. Before 2006 even without the aforesaid specific provision in the Cr.P.C. prosecution could have still resorted to the present procedure of obtaining the DNA test or analysis and matching of semen/bodily fluid of the appellant with that found on the undergarments of prosecutrix to make it a fool proof case.

Indian Evidence Act also provide certain provisions such as Section 112[6] (birth during marriage, conclusive proof of legitimacy) which determine child’s parentage and states that a child born in a valid marriage between a mother and a man within 280 days of the dissolution of the marriage, and the mother remaining unmarried shows that child belongs to the man, unless proved otherwise but again there is no specific provision which would cover modern scientific techniques. DNA analysis is proved very important in determining the paternity of a child in the cases of civil dispute. Need of this evidence is most significant in the criminal cases, civil cases, and in the maintenance proceeding in the criminal courts under section 125[7] of CrPC.

In the Indian legal arena, the legal position of forensic technique has to pass through a three-fold litmus test viz.

1. What is constitutional validity of such test?
2. What is the evidential value of the forensic information Obtained from the experts?
3. In the absence of any concrete legislation what stand is taken by the judiciary regarding admissibility of DNA forensics?

Bill of 2019

The DNA technology Regulation Bill 2019, which is also known as the DNA profiling bill has been formulated recognizing the need for regulation of use and application of deoxyribonucleic acid technology for the use of DNA technology to establish the identity of an individual. According to government it will be a game changer in the criminal cases or the cases which is related or rely on the scientific evidence for speedy trial.

The DNA technology bill aims to establishing identity of missing person, offenders, victims, person who are under trial and unknown deceased person. The main purpose of this particular DNA technology bill is to expand the application of DNA- based forensic technologies to support and strengthen the justice delivery system of the country. The bill is also expected to fast-track criminal cases where DNA evidence could be prove conclusive[8]. Except criminal cases the bill also allows the use of technology to establish the identity of persons in the matters of parentage dispute, immigration and transplantation of human organs[9]. 

Provisions of the bill

1. The bill seeks to establish a ‘national data bank’ and ‘regional data banks’ for every state, or for two or more than two states[10]. The labs are required to share DNA data with the national and regional DNA data banks. 
2. The bill said that every data bank will maintain the indices for the  following categories[11]:

• The crime scene index
• An offender’s index
• A suspect’s index
• An under trials’ index
• Missing person’s index and
• An unknown deceased persons’ index

3. The bill also seeks to establish a DNA regulatory board, and the board will called the ‘DNA regulatory board’[12]. The board will supervise the data banks and laboratories, further the board shall be a body corporate, having perpetual succession and a common seal, which is subject to the provision of this particular act, to acquire, hold and dispose of property, and to contract, and shall, by the said name, sue or to be sued[13]. Further it also said that the ex officio chairman of the board will be the Secretary of Department of Biotechnology. 

The regulatory board will comprise-

• Director General of the National Investigation Agency and the Director of the CBI, and
• Experts in the field of biological sciences.

4. The bill provides for the ‘removal of DNA profiles’ of suspect on the filing of a police report or court order, and of under trials on the basis of a court order. The profiles in the crime scene and the index of missing person will be removed on a written request[14].
5. The bill also provides that any laboratory undertaking DNA testing is required to obtain accreditation from the Board itself.  The Board can revoke the accreditation for several reasons including the failure to:  

• Undertake DNA testing, or 
• Comply with the conditions which are attached to the accreditation. If the accreditation is revoked by the board, an appeal will lie before the central government or any authority notified by the central government. 

 Further, it is also necessary for every DNA laboratory to follow standards for the quality assurance in collection, storing, and analysis of samples of DNA.

6. The bill allow DNA testing only in respect of matters listed in the schedule to the bill. 
7. The bill also proposes a provision related to a ‘written consent’ of an individual to be obtained before collection of their DNA samples[15]. The victim as well as convicted or under trial person must give their consent in written. However, such consent is not required for the offences which include the punishment of more than seven years in prison or in case of DNA profiling for civil matters.
8. The bill also specifies the penalties for different offences which includes-

• For disclosure of DNA information.
• For using DNA sample without authorization

9. The bill further provides that the disclosure of DNA information will be punishable with imprisonment of up to three years and fine of up to one lakh Indian rupees[16]. And Whoever, knowingly and intentionally, destroys, alters, contaminates or tampers with biological evidence which is required to be preserved under any law for the time being in force, with the intention to prevent that evidence from being subjected to DNA testing or to prevent the production or use of that evidence in a judicial proceeding, shall be punishable with imprisonment for a term which may extend to five years and also with fine which may extend to 2 lakh rupees[17].

Arguments in favour of the bill

1. By this bill the individual privacy is ensured as the data banks will not allow to release any information without any formal requisition. The person who is in need of DNA process i.e. investigator has to go through a formal requisition process. 
2. The pattern of DNA will be kept only in DNA banks and can be used only whenever it is required for any purpose of national interest, forensic interest and police interest.
3. The DNA profile of a person will be kept in a government run regulatory body with some terms and references so that, there is a least chances of any misuse.

Arguments against the bill

1. The bill is in violation of human rights as it is in conflict with the privacy of the individuals, because all the details of the individual person’s body and his DNA profile will be with the state. Even though the Supreme Court has recognized the right to privacy as a fundamental right. In Justice K. S. Puttaswamy and Ors. vs Union of India and Ors[18], case, The Apex Court has interpreted the Constitution to include ‘right to privacy’ as a fundamental right. The court said that this right may be infringed only if three conditions are met. Which are:

• There should be a law;
• The law should aim to achieve a public purpose, and
• The public purpose should be proportionate to the infringement of privacy

Since the storage of DNA profiles for civil matters in the Data Banks may not serve the public purpose, it may violate the fundamental right to privacy.

2. There is no clarity on some matters. The schedule lists civil matters where the DNA profiling can be taken in use. This includes the issues which are related to the establishment of an individuals’ identity. 
3. The bill is also unclear on privacy issues that whether the DNA profile for civil matters should also store in the DNA data banks.
4. Under the Bill, a DNA profile is defined as the result of analysis of a DNA sample for establishing the identity of a person.  A DNA sample of an individual can provide additional information with regard to that individual other than his identity.  The Bill does not clearly specify that information other than identity will not be included in a DNA profile.  
5. While the DNA of a person can establish the identity of a person, its analysis can also reveal information related to his physical and medical characteristics, which can affect his privacy.  Because of this, DNA profiling to establish the identity of a person is done using a specific portion of the DNA that does not reveal any additional information about the individual.  This practice is followed in several countries including the United States of America and United Kingdom[19]. Laws in countries such as South Africa and Ireland specify that the DNA profile will not contain information related to medical or physical characteristics of the individual[20] Note that the Law Commission in its report on the draft Bill of 2017, stated that only the portion of the human DNA which provides information on identity will be used for profiling.  However, this is not specified in the Bill.    

Conclusion

The DNA technology (use and application) regulation bill-2019 can be an evolutionary legislation in the Indian legal system because as the government said, it well fast-track criminal cases where DNA evidence could be prove conclusive.  In the cases of rape and other criminal offences where there is only DNA evidences are present it will provide too much assistance for fetching the justice. There are so many countries in the world which are using the DNA technology for tracking criminal offence and the criminal in which Europe is on the top in applying the DNA technology in the very successful manner. 

Though, the bill is clear on some extent but it is not clear on the issue of privacy and consent which is the fundamental right of a person and which can’t be terminated.

Endnotes

[1]  “DNA Technology in Forensic Science”, Committee on DNA Technology in Forensic Science, United States of America, 1992.

[2] Lok Sabha Passes DNA Technology Bill-All you need to know, The Wire, available at: https://thewire.in/the-sciences/lok-sabha-passes-dna-technology-bill-all-you-need-to-know [Last accessed on 25^th august 2019]

[3] The Code of Criminal Procedure, 1973

[4]  Ibid

[5] (2011) 7 SCC 130

[6] Indian Evidence Act, 1872

[7] Supra. 3

[8] Ibid

[9] Lok sabha passes the DNA technology bill, the hindu newspaper, printed on 8 jan 2019. available at: https://www.thehindu.com/news/national/lok-sabha-passes-dna-bill/article25940769.ece [Last accessed on: 30th August 2019].

[10] Clause 25(1), chapter-V, The DNA Technology (use and application) Regulation Bill-2019

[11] Clause 26(1), chapter-V, The DNA Technology (use and application) Regulation Bill-2019

[12] Clause 3(1), chapter-II, The DNA Technology (use and application) Regulation Bill-2019

[13]  Clause 3(2), chapter-IV, The DNA Technology (use and application) Regulation Bill-2019

[14] Clause 31(3), Chapter-V, The DNA Technology (use and application) Regulation Bill-2019

[15] Clause 23(2), chapter-IV, The DNA Technology (use and application) Regulation Bill-2019

[16] Clause 45, chapter-VIII, The DNA Technology (use and application) Regulation Bill-2019

[17] Clause 49, chapter VIII, The DNA Technology (use and application) Regulation Bill-2019

[18] AIR 2017 SC 4161

[19] Maryland vs King, Supreme Court of the United States, October 2012.; see, National DNA Database, NDNAD Strategy Board, Annual Report 2007-09, United Kingdom

[20] Section 36A(1)(fC), Criminal Procedure Act, 1977, South Africa; Section 2(1), Criminal Justice (Forensic Evidence and DNA Database System) Act, 2014, Ireland

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This article is written by Khushnum Motafram, pursuing a Diploma in M&A, Institutional Finance and Investment Laws (PE and VC transactions) from Lawsikho.com. Here she discusses “What are Hedge Funds?”.

Introduction

Hedge Funds is one of the financial instrument that is used in raising capital funds from the market and often called as capital market instrument. These financial instruments play an integral part in the growth of the capital market worldwide. Since the number of known and used financial instruments are quite less in the market, financial instrument innovation is imperative for the continuous growth of the capital market. Innovation in financial terms means improvising an existing financial instrument through introduction, deduction or modification of various factors such as interest rate, change in tax structure and regulatory changes etc. 

Concept of Hedge Funds

Hedge Funds is the young baby of the Indian market. It was given a green signal to function in the year 2012 when the Securities and Exchange Board of India (SEBI) gave a go-ahead to the alternative investment funding in India. As per Clause 2(1)(l) of the Securities Exchange Board of India (Alternative Investment Funds) Regulations, 2012, hedge fund means an Alternative Investment Fund which employs diverse and complex trading strategies and invests and trades in securities having diverse risks or complex products including listed and unlisted derivatives.  

Hedge Funds are generally unregistered private investment partnerships or funds or pools that may invest and trade in many different markets, instruments, strategies including securities, non-securities and derivatives. One of the major highlights of Hedge Funds is that it is not subject to the same regulatory requirement as are applicable to mutual funds, including a specific requirement of providing certain periodic and standardized pricing and valuation information to the investors.

Hedge Fund portfolio consists of various types of securities i.e. equity, bonds, debentures and convertible securities etc. Hedge Funds are a collection of funds from accredited investors like banks, financial institutions, pension funds and high net worth individuals etc. Minimum investment amount by any investor should at least be INR 1 crore. These funds are then invested in varied securities across the market in order to hedge risk to the investees’ money against the market’s ups and downs. Furthermore, since these funds are managed by private investment experts, they are costlier to invest in. These private experts charge fees under two heads i.e. performance fees ranging from 15% to 20% of the return value and fixed fees ranging from 1% to 2% of the total investment making it feasible only for someone who has surplus funds and is a risk-seeker.  

Some examples of hedge funds include names like Munoth Hedge Fund, Forefront Alternative Investment Trust, Quant First Alternative Investment Trust and IIFL Opportunities Fund. There are others such as Singlar India Opportunities Trust, Motilal Oswal’s offshore hedge fund and India Zen Fund.

Key Characteristics of Hedge Funds

1. Hedge Funds are generally organized as unregistered private investment partnerships or offshore investment corporations;
2. The investment mechanism of Hedge Funds involves a wide variety of trading strategies including position-taking in a range of market;
3. A varied amount of risk management techniques, trading techniques and instruments including short selling and leverage are employed;
4. Pays performance fees to their managers;
5. Hedge Funds have relatively high minimum investment limit;
6. Investor base of the Hedge Funds compromises of wealthy individuals and institutions.

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Types of Hedge Funds

Basically, there are two types of Hedge Funds: 

1. Domestic Hedge Fund

These Hedge Funds are generally created in the form of limited partnerships. They are created for investors who are subject to the income tax regime of the United States of America. These funds can also be created in the form of Limited Liability Corporation (LLC) or Business Trust. Since LLPs, LLCs and business trusts are not separately taxed in the US, income is taxed only at the level of the individual investors.

2. Offshore Hedge Fund

These Hedge Funds are generally created in the form of corporations in various countries including Cayman Island, the Bahamas, and Panama etc. These offshore Hedge Funds are funded by U.S based tax exempted entities as well as from non-U.S. residents. Offshore Hedge Funds are generally funded by U.S. tax exempted entities because such entities may be subject to taxation if they invest in domestic limited partnership hedge funds. 

Strategies of Hedge Funds

Hedge Funds strategies are basically divided into four categories. All these strategies have their own risk and return profiles. It is not compulsory for these funds to employ a single strategy for their investment in different portfolios. They may use different strategies at the same time to achieve the best return for their clients. These strategies include elements like hedge funds entering the market, the instrument used for hedging, the market sector, diversification of funds within that market sector in different instruments etc.

1. Directional Trading 

Based upon speculation of market direction in multiple asset classes. Both model-based systems and subjective judgment are used to make trading decisions. 

2. Relative Value

Focus on spread relationships between pricing components of financial assets. Market risk is kept to minimum and many managers use leverage to enhance returns.

3. Specialist Credit

Based around lending to credit-sensitive issuers. Funds in this strategy conduct a high level of due diligence in order to identify relatively inexpensive securities.

4. Stock Selection

Combine long and short positions, primarily in equities, in order to exploit under and overvalued securities. Market exposure can vary substantially. 

Apart from the above-mentioned strategies, managers of Hedge Funds involve in some of the following techniques in order to achieve benefit from the market volatility. It is that is why said, that returns from hedge funds are rather skills of the individual manager and not the market conditions. 

1. Short Selling

Here the managers speculate and sell the securities bestowed with a belief that they will repurchase the securities on a future date at a price lesser than what they are selling it today.

2. Investment in an upcoming event

Managers take advantage of a various major market event such as mergers, acquisitions, spin off, amalgamation and invest in securities accordingly in order to achieve maximum profit. 

3. Investment in securities offered at high discounts

These risk taking managers also invest in securities of companies and entities which are on the verge of insolvency or are financially stressed as these companies or entities are willing to sell their shares at a highly discounted price to attain liquidity. 

4. Use arbitrage

Managers also take advantage of various contradictory or inefficient pricing of securities in the market. Hedge funds are then benefited from these securities at a later stage upon attainment of the fair market value.

Hedge Funds and Mutual Funds

Registration as Alternative Investment Funds under SEBI (Alternative Investment Funds) Regulations, 2012 (“Regulation”)

• As per Clause 3 of the Regulation, every person or entity who wishes to act as an Alternative Investment Fund shall obtain registration from the SEBI by submitting Form A along with prescribed fees. 
• In the event of failure to obtain such registration within the prescribed period, such funds shall cease to carry on its activities as an Alternative Investment Fund (“AIF”).
• Hedge Funds shall obtain registration under the said Regulation as Category III Alternative Investment Fund. 
• As per Clause 6 of the Regulation, SEBI may grant certificate of registration to the entity in Form B upon satisfaction that the applicant has fulfilled all the necessary requirements as are specified in the Regulations. 
• As per Clause 13 of the Regulation, Category III Alternative Investment Fund may be open-ended or close-ended.

Further, Hedge Funds registered with SEBI as Category III Alternative Investment Fund are also subject to various conditions concerning investment as given in Clause 10, 15 and 18 of the Regulation. Also, these Category III Alternative Investment Fund are subject to certain general obligation and transparency requirement as are given under Clause 20 and 22 of the Regulations respectively.

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

The post What are Hedge Funds? appeared first on iPleaders.

This article is written by Khushnum Motafram, pursuing a Diploma in M&A, Institutional Finance and Investment Laws (PE and VC transactions) from Lawsikho.com.  Here she discusses “When does the Competition Commission of India need to be approached for Acquisitions?”.

Introduction

India is one of the fastest-growing economies in the world. The growth potential of the Indian economy has still not reached its point of saturation. Market players i.e. firms, entities or the sellers are opting into various competitive techniques to achieve their business objectives or goals such as higher profit margins, sales, greater market share etc. In this cut-throat competition in the business market, it would not be wrong to say those market players would not opt for anti-competitive practices in order to achieve their end needs. However, it is worth noting that free and fair competition guided by sound and effective competition law and policy would be one of the key catalysts in obtaining an efficient market economy. So with the growing economy, globalization and opening of the markets worldwide, establishment of an agency to control anti-competitive practices was essential to harness full growth potential in many critical aspects of the Indian economy in a prudent and efficient manner. The Indian legislature enacted the Competition Act, 2002 with a notion to prevent anti-competitive practices in the territory of India and to encourage and sustain competition, protect the interest of the consumers and ensure freedom of trade in the market. 

Competition and the Competition Act, 2002

Competition can be defined as an economic rivalry between two or more market players in order to attract more customer to attain their business objective. Further, the World Bank and OECD in its Report ‘A Framework for the Design and Implementation of Competition Law and Policy’, broadly defines the competition is “a situation in a market in which firms or sellers independently strive for the buyers’ patronage in order to achieve a particular business objective, for example, profits, sales or market share.” Domestic and multinational companies, distributors, shopkeepers, retailers or wholesalers qualifies within the meaning of market players. They may or may not indulge in anti-competitive techniques in order to wash away their competitor. However, in the interest of a welfare society and the economy, it was imperative to promote a market facilitating fair competitive outcomes in the market. Hence, the Competition Act, 2002 was enacted.

Chapter II of the Competition Act, 2002 provides for the substantive laws which prohibit anti-competitive practices in the Indian economy. Section 3 of the Act prohibits entering into anti-competitive agreements, Section 4 prohibits leading market player in the sector to abuse its dominance in the market over the other players. Section 5 and Section 6 prohibits and regulates the combination of two or more entities by way of merger, amalgamation or acquisition which would cause or likely to cause an appreciable adverse effect on the competition within the relevant market.

Further, Chapter III of the Act deals with provisions relating to establishment and composition of the commission, selection of committee for Chairperson and other members, terms of office of Chairperson etc. and Chapter IV elaborates duties, powers and functions of the commission. 

Regulation pertaining to combinations

1. Relevant meaning and definitions

Section 2(a) of the Act specifically defines acquisition to mean “directly or indirectly, acquiring or agreeing to acquire (i) shares, voting rights or assets of any enterprises; or (ii) control over management or control over assets of any enterprises”.

Section 2(h) of the Act defines enterprise to mean a person or a department of the Government, who or which is, or has been, engaged in any activity, relating to production, control of goods or provisions of services, or in investment, or in the business of acquiring, holding, underwriting or dealing in securities whether such unit or division or subsidiary is located at the same place where the enterprise is located or at different places. 

Section 2(y) of the Act defines turnover to include the value of the sale of goods and services. As per the explanation is given under Section 5, assets shall be valued at book value as given in the audited financial statements of the entity for the financial year immediately preceding the financial year in which the date of proposed merger falls. The said book value has to be adjusted by reducing depreciation.

2. Notifying the Competition Commission of India

As per the provisions of Section 5 of the Act, any acquisition of one or more enterprises by one or more persons, or merger or amalgamation of enterprises, shall be a ‘combination’ of such enterprises and person or enterprises if the threshold prescribed under the said Section are met. The threshold has been enhanced by 100% pursuant to notification no. S.O. 675(E) dated March 4, 2016, which is given herein below:

Explanation b to Section 5 of the Act, group shall mean two or more enterprises which, directly or indirectly, has the power to exercise 26% or more of the voting rights in the other enterprises or has the power to appoint more than 50% of the members of the board of directors in the other enterprises or control the management or affairs of the other enterprises. 

As per Section 6(1), any person or enterprise entering into combination where the aforementioned threshold has been exceeded and which causes or is likely to cause an appreciable adverse effect on the competition within the relevant market in India shall be void. 

However, in case any person or enterprise proposes to enter into such a combination where the prescribed threshold is exceeded, such person has to approach the Competition Commission of India and file a notice in the prescribed form within applicable fees, disclosing the proposed combination as per Section 6(2) of the Act. The time limit for filing of the notice has been relaxed for a period of 5 years from the date of notification by way of a notification dated June 27, 2017, issued by the Central Government.

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3. Procedure for notifying Competition Commissioner of India (CCI)

1. A notice has to be filed with the CCI specifying the details of the proposed combination upon execution of the agreement or other document pertaining to the acquisition;
2. The notice has to be given in Form I with a fee of INR 15,00,000. However, in case the horizontal overlap between the parties is more than 15% in the relevant market, or if the vertical overlap between the parties is more than 25% in the relevant market, the notice has to be given in Form II with a fee of INR 50,00,000;
3. In case the parties do not file notice as stated above, the CCI may suo moto take cognizance and order such parties to file a notice and may impose a penalty for non-filing of said notice with the CCI;
4. The CCI shall within 30 working days of submission of notice, pass an approval order, with or without modifications in case the said combination is not likely to have an appreciable adverse effect on competition;
5. In case CCI is of the opinion that such a combination would cause appreciable adverse effect on competition, it would commence an in-depth investigation into the said combination and may call for a report from the Director-General;
6. In the end, the CCI may either grant unconditional approval or condition approval or require that such a combination shall not take effect; and
7. As per Section 6(3), such combination shall be deemed to be approved at the end of 210 days from the date on which the notice has been given to the Commissioner in case CCI does not pass an order either approving or denying the grant of approval to the combination.

4. Penalty

In case the parties to the combination consummate any part of the combination before the approval of CCI, then the CCI can impose a penalty up to 1% of the total turnover or the assets, whichever is higher.

5. Exception

The provisions contained in Section 5 and Section 6 shall not be applicable in case of share subscription or financial facility or any acquisition, by a public financial institution, foreign institutional investor, bank or venture capital fund pursuant to any covenant of a loan agreement or investment agreement. 

Cases

In the event of non-disclosure of the combination in the prescribed forms in accordance with Section 6(2), the Competition Commissioner has the power to impose a penalty under Section 43A of the Competition Act, 2002. Given below are few of the cases in which the Competition Commissioner has taken strict actions against the defaulters of law.

1. Case pertaining to imposition of a penalty for non-compliance with the provisions of Section 6 of the Competition Act, 2002 (May 7, 2018)

In the matter of Intellect Design Arena Limited (IDAL), Polaris Financial Technology Limited (PFTL) demerged its “product business” by a board resolution dated March 18, 2014, on a going concern basis. The said demerged product line was then purchased by Intellect Design Arena Limited. In the instant case, as per the books of account, a total turnover of PFTL in India for the financial year 2012-13 was INR 1,853.90 crore. Thus, based on the book value, assets and turnover of PFTL exceed the De Minims Exemption threshold applicable at that point of time. The Commission observed that prima facie the transaction does not fall under de minimis exemption and the parties satisfy the jurisdictional threshold, in terms of combined assets and turnover of the parties, as provided in Section 5 of the Competition Act, 2002 making the said combination a notifiable transaction. In light of the said contravention, the Commission chaired by Mr. Devender Kumar Sikri imposed a penalty of INR 10,00,000 in the exercise of its power under Section 43A. 

2. Case pertaining to imposition of a penalty for non-compliance with the provisions of Section 6 of the Competition Act, 2002 (July 3, 2018) 

On October 26, 2012, the Competition Commission of India received a notice under Section 6(2) of the Competition Act, 2002, given by Lakshdeep Investments & Finance Private Limited (“Lakshdeep”) for the proposed acquisition of shares of Telewings Communications Services Private Limited (now Telenor (India) Communications Private Limited, hereinafter referred to as “Telewings” / “Telenor India”) filed pursuant to the execution of a Share Subscription and Shareholders’ Agreement (“SSHA”) dated October 26, 2012 between Telenor South Asia Investment Pte Limited (“Telenor South Asia”), an indirect wholly-owned subsidiary of Telenor ASA (“Telenor”, the ultimate holding company of Telenor Group), Lakshdeep and Telewings. However, Lakshdeep claimed that one transaction (i.e. Telenor increasing its shareholding to 74% and consequently Lakshdeep buying 26% in Telewings (“Telenor Share Transaction – Tranche 1”)) was an intra-group asset transfer in terms of Regulation 4 read with Item 8 of Schedule I of the Combination Regulations and need not be filed with the Commission. Further, on March 23, 2017, the Commission received another notice under Section 6(2) for 100% shares transfer from Telenor India to Airtel through a court driven scheme of merger. However, during the review the Commission observed that Telenor has consummated the Telenor Share Transaction – Tranche 1 and subsequently increased its shareholding in Telenor India from 74% to 100% (“Telenor Share Transaction – Tranche 2”) without notifying the Commission. Hence, violating the provisions of Section 6(2) of the Competition Act, 2002. In light of the said contravention, the Commission chaired by Mr. Sudhir Mittal imposed a penalty of INR 5,00,000 in the exercise of its power under Section 43A. 

3. Case relating to no appreciable adverse effect on competition (June 3, 2019)

In the matter of CVI CVF IV Master Fund II LP and others, a notice under Section 6(2) of the Competition Act, 2002 was jointly filed by CVI CVF IV Master Fund II LP, CVI AA Master Fund II LP, CVI AV Master Fund II LP, CVIC Master Fund LP, Carval GCF Master Fund II LP, CarVal GCF Lux Securities S. à r. l., CVI AA Lux Securities S. à r. l., CVI AV Lux Securities S. à r. l., CVI CVF IV Lux Securities S. à r. l., CVIC Lux Securities Trading S. à r. l and Nithia Capital Resources Advisors LLP (hereinafter collectively referred to as the “Acquirers”). They proposed to acquire up to 100% of the total issued and paid-up share capital of each of Uttam Galva Metallics Limited (“UGML”) and Uttam Value Steel Limited (“UVSL”) (UGML and UVSL are collectively referred to as “Targets”) by participating in the Corporate Insolvency Resolution Process (CIRP) under the Insolvency and Bankruptcy Code, 2016 (“IBC”). During the review of the proposed combination by the Commission, it was noted that the said combination pertains to steel sector in India and that Carval Funds and its affiliates held 0.7% in Tata Steel BSL Limited and does not have any other right over and above those conferred upon ordinary shareholders. Further, as regards Nithia’s, neither Nithia nor any of its affiliates have made investments in any entity in India and were not engaged in any business in India. Based on the above-stated facts, the Commission was of the view that proposed combination is not likely to result in a change in competitive dynamics in any market in India and is thus not likely to result in an appreciable adverse effect on competition in any of the markets in India. Hence, the said combination was approved by the Commission subject to the condition that the said approval shall stand revoked in case the information provided by the Acquirers are found to be incorrect.

4. Case relating to no appreciable adverse effect on competition (January 31, 2019)

A notice under Section 6(2) of the Competition Act, 2002 was filed by Royale Partners Investment Fund Ltd. (“Royale Partners/Acquirer”) relating to a proposed acquisition of EPC Constructions India Ltd. (“EPC Constructions”) with the Competition Commission of India. Royale Partners proposes to indirectly acquire EPC Constructions by amalgamating the special purpose vehicle, a proposed wholly-owned subsidiary of Royale Partners in India, with EPC Constructions. The Commission during its review noted that Royale Partners / RPMG Group and EPC do not produce/provide similar or identical or substitutable products or services and are not engaged in any activity relating to the production, supply, distribution, storage, sale and service or trade-in products or provision of services which is at different stages or levels of the production chain in India. Relying on the said facts, details provided in the notice and the assessment of the combination, the Commission was of the opinion that the combination is not likely to have an appreciable adverse effect on competition in India.

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

The post When does the Competition Commission of India need to be approached for Acquisitions? appeared first on iPleaders.

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

Rejections are very important. That’s how we get better.

I read a beautiful thing once – rejections are merely the way the universe redirects you to where you really belong, to your destiny. 

Of course, a lot of us tend to take some rejections too hard and decide to stop our journey of destiny. Some of us go back home and sit in a corner. Some of us resign to working in a dead-end job or enduring an abusive relationship for the rest of our lives. Or we decide horrible things about ourselves and self-sabotage – such as we are not good enough, we don’t deserve good things in life, that the world is especially cruel to us and whatnot. 

There is nothing worse than your spirit being defeated. That is the only time the game is over. I will tell you a story of an epic rejection, and how it changed my fortune.

About two years back, I pitched to one of the richest men in India, a sort of business sage, to invest in LawSikho. He forbade us from ever taking his name because he normally doesn’t invest in startups. He was curious about us because another billionaire business guru who often co-invested with him in many iconic companies of today asked him to take a look at us.

This may surprise you because I am normally against taking investment. However, if this person would come on board, I will take any investment he would give. I won’t even try to negotiate the valuation probably, because of the experience, credibility and simple strategic prowess he brought to the table. We have been offered investments and exits otherwise which we have not taken up. Who the investor is matters more than the cash to me.

I will tell you how.

The first pitch went well. He liked us and sent us some questions to answer. Then he met us again. And that meeting went haywire very quickly.

By end of it, he told us that he thinks that we have been sitting on our asses for years. We did some good things, but we squandered opportunities. He questioned why our courses were very low priced (there was a time when we used to offer some courses at 2000-3000 rupees like most of our competitors) and if we truly had confidence in what we were doing. 

Lawyers are rich. Why don’t you have a single course that costs one or two lakhs? I still remember that question. 

Upgrad is offering data sciences courses for 2.5 lakhs. What are you doing that you can charge that much? I had no answers.

And he walked out of the meeting. That meeting left a huge impact on me. He was right. I did not like his decision, but I could not disagree with what he said. What could we offer that lawyers would happily pay at least 1 lakh to us? 

Could we create products from which we could charge 2-3 lakhs from hundreds of lawyers? Can we offer services to directors of companies, general counsels or law firm partners? What would that have to be?

Our game was nowhere near what was required to charge in lakhs. I just could not see what I could launch that I could justifiably charge even 1 lakh for. Ultimately, for someone to pay me 1 lakh, they should at least get RoI worth of 5 lakhs from buying to the product, while I would prefer that they get the value of at least 10 lakhs. That is when a product really takes off, and selling becomes fun!

Say someone does a contract drafting course for INR 30,000 and can recover the cost in the next 3 months by drafting 3-4 contracts for clients, then the course in more than worth it, because now he knows he can earn even lakhs from the knowledge and skills he gained in the next one year. 

It is not enough if people only learn this after doing a course. They should ideally be able to foresee this benefit even before they buy something, for a product to be a really big hit. And that is what we have to play for!

So we started by launching courses worth INR 20,000 in July of 2018. Over the next year, we completely overhauled how we delivered and created courses. I even let go of my sales and marketing team and put in every penny we had into developing premium quality courses. We realized that the content is not enough on its own if we have to be truly premium, because lawyers did not really learn enough from canned content.

Instead of giving discounts, we focused on how we can provide more benefit and more results to the students, even if that meant we had to hike our prices. We did not worry about how we may be pricing ourselves out of most of the market. We believed that if we can deliver true results, enough people will enroll. Lawyers can make a lot of money if they can do good work, why should 15,000 or 30,000 rupees be a big barrier for learning really valuable skills from which they can earn 10 times more?

Instead of keeping a low price, therefore we focussed on how to enable the lawyers to earn more!

That paved the way for live classes, weekly skills training, simulation exercises, monthly article writing and publishing, and coaching calls to ensure completion of courses.

And that enabled us to charge a premium price when all our competitors raced to the bottom with more and more discounts and provided very little value to their learners.

It is possible to charge a premium price, but only when you can provide unquestionable, superlative value. This lesson is not only for entrepreneurs like me but extremely relevant for lawyers and those who work for other organizations too.

Jobs that come with higher salary tags do so because the work is hard, and because you are likely required to solve many problems. More problems you can troubleshoot, more value you can build for others, bigger gets your paycheck too!

I heard another beautiful story that relates to the same issue from a top-notch business consultant later. She is the founder of a number of very well known brands, but I have not taken her permission and hence would not take her name.

 Click Above

She told me the story of a milkman who came to consult her. This guy had hundreds of cows and earned a few crores a year from selling milk. And he was trying to add more cows because he thought that’s how his business will grow. The consultant told her to focus on selling cheese, cream, and such other products to 5-star hotels. Within a few years, the guy crossed 100 crores in revenue.

She left me with one assignment. Think of a product you can sell for 1 lakh per person. Trust me, it took me at least one year to come up with an answer. And it was Master Access. I also mooted an idea for a course for foreign businesses looking to do business in India and one for directors of listed companies, but I never got to making these products because I could not validate from market research.

So yes, we figured out what our 5-star cheese could be, though it took a while.

One key learning was to focus on the legal market rather than just law students. Most legal training companies in India have invariably focussed on the law students market, perhaps because the entry barrier is low and they think it is easier to create courses for law students. And it’s true, you can get away with low-quality products when it comes to law students because their expectation is so low. Some students may value cheap courses that easily gives them a certificate to mention in their CV more than lawyers ever will. So that’s what everyone stuck with.

We also started by focussing on law students in the beginning, but then we realized that we are focussing on the wrong market. What if we focussed on the lawyers instead? Their benefits are more instant. They can actually make a lot of money, right now, by adding new skills to their repertoire. And that’s what we focussed on.

The instruction to our course creation team is to teach at least 2 skills per week to every trainee. These skills should be such that they should be able to charge at least 10,000 or upwards for doing that kind of work. 

So if you do a one year course from us, you should learn 100 such skills. This is what we aim for.

Interestingly, this focus reduced law student enrollments only marginally, because many advanced law students want to learn the skills that they would require when they begin their career journey as a lawyer, and there is no reason why they must wait to graduate to learn these skills.

Of course, these courses are not for those who are already struggling with their college curriculum! 

We continue to work on how we can elevate our courses to higher levels, where we can service more established lawyers with more knowledge and expertise. LawSikho, therefore, is a work in progress.

Miles to go before we sleep.

Tell me your story. What rejections have turned around your career? How to plan on move up the chain of value and charge more for your work?

I am eager to hear from you.

Here are some courses you can check out. Enrollment closes on 14th September, so hurry.

Diploma

Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution 

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

Diploma in Entrepreneurship Administration and Business Laws

Executive Certificate Courses

Certificate Course in Advanced Corporate Taxation

Certificate Course in 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 Securities Laws, Insider Trading and SEBI Litigation

Certificate Course in Media and Entertainment Law: Contracts, Licensing and Regulations

Test Preparation

Judgment Writing and Drafting Course for Judicial Services

The post How to Use the Worst Rejections to Move Up Your Game appeared first on iPleaders.

This article is written by Khushi Rastogi, a student at Symbiosis Law School, Noida. In this article, she discusses various types of Muslim marriages, registration and dissolution of marriages under Muslim law.

Introduction

Marriage under Islam is a matrimonial relation and an institution which legalizes the sexual activities between a male and female for the object of procreation of kids, promotion of love, mutual support and creation of families which are considered an essential unit in a society. Just like Hinduism, Islam is also a strong advocate of marriage. However, the Muslim conception of marriage differs from the Hindu conception according to which marriage is not a mere civil contract but a sacrament. According many philosophers, marriage in Islam is a religious duty. Everyone must marry in order to fulfil one’s desire of procreation of kids legally.

Muslim law has been derived from various codified and uncodified sources like- Quran, Ijma, Qiyas, customs, urf, precedents, equity and various legislations. There are 4 major sunni school of thoughts- hanifa, hamabli, maliki and shafai. These four schools recognize each other’s validity and they have interacted in legal debate over the centuries. In India, Hanifa school of Islamic law is dominant.

The general essentials of a Muslim Niqah are:

• Parties must have capacity to marry.
• Proposal (ijab) and acceptance (qubool).
• Free consent of both the parties.
• A consideration (mehr).
• No legal Impediment.
• Sufficient witnesses (different in shia and sunni).

Classification of Marriage

Valid (sahih)

When all the legal requirements are fulfilled and there are no prohibitions affecting the parties, then the marriage is correct or ‘sahih’. The prohibitions can be permanent as well as temporary, in case of  permanent prohibitions: the marriage will be void and if the prohibitions are temporary then the marriage is irregular.

Effects of a valid marriage

•  The cohabitation between the husband and the wife becomes lawful.
• The children born out of a valid marriage are legitimate and they have right to inherit their parent’s properties.
• Mutual rights of inheritance between husband and wife are established. That is to say, after the death of the husband, the wife is entitled to inherit the husband’s properties and after the wife’s death, husband may also inherit her properties.
•  Prohibited relationship for purposes of marriage is created between the husband and wife and each of them is prohibited to marry the relations of the other within prohibited degrees.
• The wife’s right to claim dower is fully established just after the completion of marriage.
• The marriage gives to the wife also the right of maintenance from her husband with immediate effect.
• After the dissolution of the marriage, the widow or the divorced wife is under an obligation to observe the Iddat, during which she cannot remarry.

Void (Batil)

The marriage being void ab initio creates no rights or obligations and the children born out of such marriage are illegitimate. A marriage forbidden by the rules of blood relationship, affinity or fosterage is void. Similarly, a marriage with the wife of another or a divorced wife during iddah period is also void.

Irregular (Fasid)

Due to lack of some formality, or the existence of an impediment which can be rectified, a marriage becomes irregular, However, this irregularity is not permanent in nature and can be removed. Thus, the marriage itself is not unlawful. It can be made valid once the prohibitions are rectified. Marriage in such circumstances or with following prohibitions are called ‘Fasid’.

1. A marriage contracted without required number of witnesses;
2. A marriage with women during her Iddat period;
3. A marriage with women without the consent of her guardian when such consent is considered necessary;
4. A marriage prohibited on account of difference of religion;
5. A marriage with a woman who is pregnant, when the pregnancy was not caused by adultery or fornication;
6. A marriage with a fifth wife.

Muta or Nikah mut’ah

The term literally means “pleasure marriage”. Muta marriage is a temporary agreement for a limited time period, upon which both the parties agreed. There is no prescribed minimum or maximum time limit, it can be for a day, a month or year(s). The marriage dissolves itself after the expiration of the decided period, however if no such time limit was expressed or written, the marriage will be presumed permanent. This type of marriage is seen as prostitution by the Sunni Muslims and thus, is not approved by Sunnis. 

However, it is considered legitimate by the Twelver Shia sect, which is predominant in Iran and constitutes 90% of India’s Shia population. In Iran, the word mut’ah is only from time to time utilized and this practice is called ‘sigah’. The rules for sigah are fixed for eg- the contract for temporary marriage can be attracted for one hour to 99 years; it can’t be for an indeterminate period. This provision distinguishes mut’a from nikah or lasting marriage, which has no time limit. However, just like in nikah, in sigah too, the bride must get some monetary benefit.

No witnesses are required for mut’ah. And just like in any other contract, the woman being a party can lay down conditions for her sexual union throughout this time limit, this can also include her daily maintenance. Her temporary husband must respect these conditions. The marriage automatically dissolves at the end of the stated period. No matter how short the duration was, the woman has to practice abstinence lasting up to two menstrual cycles.

Interesting part is that, the temporary husband and wife can renew the contract but the husband must regardless of this pay the amount to the bride. Husband has a unilateral right to revoke the marriage-mark of his superior position in the relationship. But the woman can refuse to be intimate with him or even leave him, but in such case, she must return back the amount she received from him.

India is a country that has partially approved live-in relationships; However, it will still be quite difficult for the Supreme Court to constitutionally invalidate this form of marriage. In modern day era, where feminists all across the globe see this arrangement equivalent to prostitution. There are many advocates of Nikah mut’ah who believe that being a contract, this arrangement is superior to the live- in relationships.

Registeration of Marriage under Muslim Law 

Registration of marriage in Muslims is compulsory and mandatory, as a Muslim marriage is treated as a civil contract. According to section 3 of Muslim Marriages Registration Act 1981- “Every marriage contracted between Muslims after the commencement of this Act, shall be registered as hereinafter provided, within thirty days from the conclusion of the Nikah Ceremony”. Nikahnama is a type of legal document in Muslim marriages which contains the essential conditions/details of the marriage.

According to this act, a Nikahnama contains:

1. Place of marriage (with sufficient particulars to locate the Place.)

1. Full name of the bridegroom
2. Age
3. Address
4. Full name of bridegroom’s father
5. Whether father is alive or dead
6. Civil condition of the bridegroom at the time of marriage whether – Unmarried Widower Divorced Married, and if so, how many wives are alive
7. Signature or thumb impression of the bridegroom/Vakil/ Guardian according as the Nikah was performed in person by the bridegroom or through his Vakil or Guardian
8. Full name of Nikah-Khan (that is the person conducting the Nikah Ceremony.)
9. Signature of the Nikah-Khan (i.e person conducting the Nikah Ceremony with date.) 
10. Amount of dower fixed
11. Manner of payment of dower 
12. Name of witnesses with parentage, residence and address

Dissolution of Marriage

There are 2 categories of divorce under Muslim law:

• Judicial 
• Extra-Judicial

The Extra-judicial mode of Divorce can further be divided into 3 subdivisions:

1. By husband- talaaq, ila, and zihar.
2. By wife- talaaq-i-tafweez, lian 
3. By mutual agreement- khula and mubarat

A divorce falls into 2 categories:

Talaaq-i-sunnat

It can further be divided into two categories:

i) Talaaq-i-ahsan

A single pronouncement of divorce is made during the period of tuhr (the period of purity between two menstrual cycles), followed by abstinence from sexual intercourse during the period of iddat. Here, the divorce can be revoked at any time before the completion of iddat, thus preventing hasty and unreasonable divorces.

ii) Talaaq-i-hasan

A husband is required to pronounce a formula of Talaaq three times, during three successive tuhrs. It is important that pronouncements are made when no intercourse takes place during any period of tuhr. The marriage is dissolved irrevocably, regardless to the period of iddat.

Talaaq-i-Biddat

It is a form of Islamic divorce which is instant in nature. It allows any Muslim man to legally divorce his wife by stating the word “Talaaq” three times in oral, written, or more recently, electronic form. This is prevalent among the Muslims in India, especially among the adherents Hanafi school of Islam. This is also known as “Triple Talaaq” and has been a subject to debate and controversy.

In Shayara Bano V. Union of India and Ors. It was submitted that:

“This practice of talaq-e-biddat (unilateral triple-talaq) which practically treats women like chattel is neither harmonious with modern principles of human rights and gender equality, nor an integral part of Islamic faith, according to various noted scholars. Muslim women are subjected to such to such gross practices which treats them as chattel, thereby violating their fundamental rights enshrined in Articles 14, 15, 21 and 25 of the Constitution. The practice also wreaks havoc to the lives of many divorced women and their children, especially those belonging to the weaker economic sections of the society.”

There have been many cases in High courts and the supreme court, where the court invalidated the instant triple talaaq. In Shamim Ara V. State of U.P, the court observed that:

The correct law of Talaaq as ordained in Holy Quran is that:

1. There must be a reasonable cause for the divorce.
2. The declaration of divorce must be preceded by attempts of reconciliation between husband and wife by 2 arbitrators. If the attempts fail, then only the divorce will come into effect.

Supreme court in August 2017 declared Triple Talaaq as “unconstitutional”. The Modi Government introduced a bill called The Muslim Women (Protection of Rights on Marriage) Bill, 2017 and presented it in the Parliament which was passed on 28 December 2017 by the Lok Sabha. The bill makes moment triple (talaq-e-biddat) in any structure spoken, recorded as a hard copy or by electronic methods, for example, email, SMS and WhatsApp unlawful and void, with as long as three years of imprisonment for the husband. 

However, one of the principle conflicts against the proposed enactment has consistently been its acknowledgment of a common offense as a cognisable and non-bailable offence.

Conclusion

The notions of Muta marriage can be evidently seen in our country. In India, temporary marriage is not recognized, although there exists few who contract Muta marriage but such marriages are not enforceable in court. Hyderabad is considered to be the epicentre of the practice where marriage can be instituted for time span as short as one or two days. In a Hyderabad case it was held that there is no difference between muta for an unspecified period and a muta for life; a permanent nikah marriage for life can be contracted by the use of word muta also; specification of the period for which a muta marriage is contracted alone makes a marriage a temporary marriage for the period specified.

The practice of Temporary “Muta” marriage is widespread in the modern times and often arranged by Imams and other Islamic leaders in Europe, America (Shia parts of Dearborn, Michigan), and in the Middle east. It is commonly the destitute widows and orphaned girls that are within the clutches of temporary marriage who are often sold to old men. For the women, there is no desire or pleasure that drives them into such misery; it is the extreme means to pay the rent and feed themselves and their children. As a result, this arrangement has received widespread criticism by various countries as it impliedly encouraging legalization of prostitution.

The conflicts over the rights of minority women are best dealt with by creating new representative bodies which have special provisions to ensure that women are sufficiently represented. In the Shah Bano case, this would have meant creating a new mechanism to administer Muslim personal law instead of simply recognizing the Muslim Personal Law Board as the legitimate representative of the Muslim community. Creating a new mechanism is more sensitive to the political reality of Muslims in India, which is that they consist of widely dispersed groups characterized by significant differences. It would also make some provision to ensure that Muslim women have some access to the institutions which make the rules which govern their lives. 

References

• Ahmed, Akbar S. Discovering Islam: Making Sense of Muslim History and Society.
•  New York: Routledge & Kegan Paul Inc., 1988. Brass, Paul.
• R. Ethnicity and Nationalism: Theory and Comparison. New Delhi: Sage Publications, 1991.
• Language, Religion and Politics in India. London: Cambridge University Press, 1974. 
• The Politics of India since Independence. Cambridge: Cambridge University Press, 1990. 
• Brydon, Lynne and Sylvia Chant. Women in the Third World. London: Edward Elgar Publishing Ltd, 1989.
•  Bumiller, Elisabeth. May You Be the Mother of a Hundred Sons: A Journey Among the Women of India. New Delhi: Penguin Books India, 1990. Carroll, Lucy. 
• “Muslim Family Law in South Asia: Important Decisions Regarding Maintenance for Wives and Ex-Wives.
• Women and Society in India. Delhi: Ajanta Publications, 1987. Everett, Jana M. Woman and Social Change in India. 
• New York: St. Martin’s Press, 1979. Engineer, Asghar Ali. (ed.)The Shah Bano Controversy. Hyderabad, India: Orient Longman, 1987.

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BarHacker: Professional Misconduct. Find out the leading cases on professional misconduct and brace your concepts by solving an exhaustive quiz.

Click Here

1. Noratanmal Chaurasia vs. M.R. Murli (2004) 5 SCC 689– The Supreme court has held that misconduct has not been defined in the Advocates Act, 1966 but misconduct envisages breach of discipline, although it would not be possible to lay down exhaustively as to what would constitute misconduct and indiscipline which however, is wide enough to include wrongful omission or commission, whether done or omitted to be done intentionally or unintentionally. 

2. Narain Pandey vs. Pannalal Pandey (2013) 11 SCC 435 – An advocate who is found guilty of having filed vakalatnamas without authority and then filing false and fictitious compromises on behalf of the client without any authority deserves punishment proportionate to the degree of misconduct. Such punishment must meet two objectives- deterrence and correction. The Court referred to the Preamble of the BCI Rules- Chapter II while adjudging the misconduct. 
3. Shambhuram Yadav vs. Hanumandas Khatri AIR 2001 SC 2509- The lawyer suggested that his client give bribe to the judge to get the suit decided in his favour. The Supreme Court held the lawyer guilty of professional misconduct. (Violation of Rule 3 and 4 of BCI Rules- – Chapter II)
4. Bar Council of Andhra Pradesh vs. Kurapati Satyanarayana AIR 2003 SC 178– Lawyer misappropriated his client’s money. BCI acquitted him on the ground that there was no intention. Supreme Court held this decision of BCI to be “unfounded and perverse” and lacking the serious thought which was required to be given to the disciplinary committee of the BCI in the discharge of quasi-judicial functions while probing into such grave instances. (Rule 23 and 25 of the BCI Rules- Chapter II)
5. Harish Chandra Tiwari vs. Baiju 2002 (2) SCC 67- Misappropriation of client’s money is a grave misconduct to be committed by a legal practitioner, and must be punished accordingly under the Advocates Act. (Rule 23 and 25 of the BCI Rules- Chapter II)
6. Smt. Siya Bai vs. Sita Ram BCI Tr. Case No. 8/1987– The advocate withdrew the decretal amounts paid and did not make the payment to the client, in violation of Rule 27 of the BCI Rules on Professional Ethics. The Disciplinary Committee of the Bar Council of India ordered the advocate to refund the money to the complainant along with the 10% interest per annum and also ordered suspension of advocate for a period of one year. 
7. In Re: An Advocate vs. Unknown AIR 1961 Ker 209- It is the imperative duty of the counsel on receipt of the client’s decretal money, to inform the client thereof and pay him without the amount under receipt without any delay. The Kerala High Court suspended the respondent for a period of six months, for non-fulfillment of this duty under Rule 27 of the BCI Rules- Chapter II.
8. Bar Council of Maharashtra vs. V. Dabholkar and others AIR 1976 SC 242- The Bar Council functions in a dual capacity, one as the prosecutor through its Executive Committee and the other quasi-judicial performed through its Disciplinary Committee. Hence, being the prosecutor, the State Bar Council would be an ‘aggrieved person’ and therefore, the appeal under section 38 of the Advocates Act, 1961 would be maintainable.
9. PD Khandekar vs Bar Council of Maharashtra 1984 SCR (1) 414- It is professionally improper for a member of the bar to prepare false documents, or to draw pleadings knowing that the allegations made are untrue to his knowledge. Thus, giving of improper legal advice may amount to professional misconduct, which may not be so by the giving of wrong legal advice. (Violation of Rule 11 of the BCI Rules-Chapter II) 
10. Hikmat Ali Khan vs Ishwar Prasad Arya AIR 1997 SC 864- The defendant assaulted his opponent with a knife. Prosecuted under Section 307 of IPC and Section 25 of the Arms Act. Conviction suspended on basis of a letter from the governor. Supreme Court held that his conduct was such that his name should be removed from the state role of advocates as he was unworthy of remaining in the profession after the conviction. (Rule 7A of Chapter III of BCI Rules) 
11. NG Dastane vs. Shrikant S. Shivde AIR 2001 SC 2028- Advocates kept seeking adjournments, and thus harassing the witnesses for the purpose of cross-examination. Guilty of misconduct. Court also analysed Section 35 of the Act and held that the requirement of “reason to believe” cannot be converted into a formalised procedural road block, it being essentially a barrier against frivolous enquiries. Violation of Rule 11 of the BCI Rules- Chapter II.
12. In Re: Tulsidas Amanmal Karani vs. Unknown AIR 1941 Bom 228 – Section 35 envisages not only ‘professional misconduct’ but also ‘other misconducts’, not defined in the Act. In case relating to Indian Bar Councils Act 1926 the Court held that “any conduct which in any way renders a man unfit for the exercise of his profession or is ‘likely to hamper or embarrass the administration of justice by this Court or any of the Courts subordinate thereto’ may be considered to be misconduct calling for disciplinary action.” 
13. Central Bureau of Hyderabad vs. K Narayan Rao (2012) 9 SCC 512 – For liability, there has to be moral delinquency. Mere negligence sans moral delinquency will not suffice. If negligence is culpable nature, then it may lead to prof misconduct but not necessarily criminal liability. 
14. Harish Uppal vs. Union of India (2003) 2 SCC 45- Lawyers have no right to strike, i.e. to abstain from appearing in the court in cases in which they hold vakalat for the parties, even if it is in response to or in compliance with a decision of any association or body of lawyers. 
15. Byram Pestonji Gariwal vs. Union Bank of India (1992) 1 SCC 31 – Supreme Court discussed the role of the counsel in compromise of suit. It will be prudent for counsel not to act on implied authority (given by vakalatnama) except when warranted by the necessity of circumstances demanding immediate adjustment of suit by agreement or compromise and the signature of the party cannot be obtained without undue delay 
16. Rajendra Pai vs. Alex Fernandes AIR 2002 SC 1808 – The lawyer in a class action suit settled contingent fee depending on the quantum of compensation awarded to the claimant; and that he identified some claimants in opening a bank account wherein the cheque for the awarded amount of compensation was lodged and then the amount withdrawn which identification was later on found to be false. Held guilty of misconduct (as in violation of Rule 20 of the BCI Rules of Conduct) and suspended for seven years. 
17. R.D. Saxena vs. Balram Prasad Sharma (2000) 7 SCC 264 – The advocate does not have a lien for his fees on the litigation papers entrusted to him by his client.
18. Virendra Kumar Gupta vs. Anil Kumar Jain –The lawyer in connivance with the other party, deliberately and intentionally did not appear in the execution proceedings of his client, which were therefore dismissed in default. The lawyer did not serve the interest of his client and in fact acted against his interest. Guilty of misconduct under Rule 5 of the BCI Rules- Chapter II. 
19. Joginder Singh vs BCI AIR 1975 Delhi 192 – Advocate had concealed facts about his conviction under Section 473 of IPC and the fact that he was out on bail. Given the high standards expected of those in the legal profession, it would definitely be a fraud/misrepresentation if the concerned advocate does not disclose the fact of his previous conviction, especially those involving moral turpitude as they help ascertain the character of a man. (Violation of Rule 43 of the BCI Rules- Chapter II) 
20. Surendra Nath Mittal vs. Daya Nand Swaroop BCI Tr. Case No. 63 / 1987. – The advocate made manipulation in the operative part of the judgement and decree by adding the words “mai sood” i.e. including interest. Disciplinary committee held him guilty of professional misconduct. (Violation of Rule 1 and 2 of the BCI Rules- Chapter II) 
21. Vikramaditya vs. Smt. Jamila Khatoon D.C. Appeal No. 21/1996 – The obtaining of the signature by the advocate on blank vakalatnama and blank watermarked papers for the purpose of defrauding the client’s amounts to the professional misconduct under Rule 15 of the BCI Rules- Chapter II. 
22. Allahabad Bank vs. Girish Prasad Verma BCI Tr. Case No. 49/1993 – The advocate did not file, rather, misappropriated the sum paid to him by the client for the purpose of court fees (in violation of Rule 23 of the BCI Rules- Chapter II). U.P Bar Council disciplinary committee held him guilty of professional misconduct. 
23. Babu Lal Jain v. Subhash Jain BCI Tr. Case No. 115 / 1996- The complainant alleged that the respondent advocate was a practising lawyer as well as was working as an editor, printer, and publisher of a weekly paper. Rule 47 of BCI rules prohibits an advocate to be engaged personally in any business. The respondent advocate was found to have been actively engaged in carrying on the business and his conduct was taken by the disciplinary committee as professional misconduct. 
24. John D’souza v. Edward Ani 1994 SCC (2) 64 The lawyer refused to return the will he executed, in spite of two letters demanding to hand over the will. The Supreme Court held that the advocate has committed breach of his professional duty and found him guilty of profession misconduct. (Violation of Rule 15 of the BCI Rules- Chapter II) 
25. V. C. Rangadurai vs D. Gopalan 1979 SCR (1) 1054- The lawyer failed to disclose the conflicting interests to client, and also betrayed the trust reposed in him by the client, hence violating Rule 24 of the BCI Rules of Professional Ethics. The lawyer was suspended for one year. 

Professional Ethics Quiz 1 

1.) A applied for a government job. A certain percentage of seats had been reserved for a certain backward class. A, who was keen on getting the job, and did not belong to the reserved class, submitted a false certificate in order to secure a position. Would A be able to enrol as an advocate? 

A.) Yes, because A was really keen on getting the job 

B.) No, because what A did is illegal and criminally punishable 

C.) No, because the submission of a false certificate amounted to crime of moral turpitude 

D.) Yes, because the submission of a false certificate does not amount to a crime of moral turpitude. 

E.) No, because although the submission of a false certificate does not amount to a crime of moral turpitude, he should be tried for false representation. 

2.) A, an advocate assaulted the opposing counsel B, with a knife, during the lunch interval in a Munsif’s Court. A pistol shot is also said to have been fired by A at the time of incident A was convicted of the offence, and the High Court affirmed the conviction. Can the State Bar Council take any action against A? 

Principle: The Advocates Act provides that certain persons shall not be admitted as advocates on the state rolls. These include those convicted of an offence involving moral turpitude 

A.) Yes, the State Bar Council is equivalent to the High Court in a particular State and can take action against any errant. 

B.) No, this is a criminal offence and any punishment to A must be meted out by the Courts and the Bar Council has no power whatsoever 

C.) No, because once A has served his sentence given by the High Court, any further action on him by the Bar Council amounts to ‘double jeopardy’ which is unconstitutional 

D.) Yes, because the State Bar Council is empowered to pass an order imposing punishment on an advocate found guilty of professional or other misconduct. 

E.) No, because the order of the High Court is not final and conclusive as A can still appeal to the Supreme Court. However, if the S.C. reaffirms the H.C. order, then the Bar Council can take action. 

3.) P seeks enrolment as an advocate. P, however, did not disclose prior convictions under Ss. 411 and 473 of the Indian Penal Code. However, the application had no column for the same and hence P decides not to disclose his conviction. Can P be barred from enrolling an advocate? 

Principle: An advocate must make free and honest depositions about his past convictions while applying for state rolls. 

A.) No, because the fact that there is no column for the same in the form implies that such information is irrelevant for his enrolment. 

B.) Yes, because P is a branded criminal and should not be allowed to enter the noble profession of advocacy. 

C.) No, the authorities cannot be allowed to take advantage of their own negligence in providing the relevant column. 

D.) No, because S.411 and 473 of the I.P.C. does not deal with crimes of moral turpitude 

E.) Yes, under S.17 of the Indian Contract Act, P had a duty to speak; therefore, even if there was no column in the form for disclosing previous convictions, P should have disclosed it. 

4.) A received a maintenance allowance under S.17B of the Industrial Disputes Act, whilst a workmens’ dispute involving A was pending in the higher court and was simultaneously, practicing law as an enrolled Advocate. Is he guilty of violating professional ethics? 

Principle : If a person enters the profession of law as a pleader, she must make up her mind to conduct the business of pleader and nothing else. 

A.) Yes, A is guilty of misconduct because an advocate cannot take up any other means of employment as long as he is enlisted as a practising advocate 

B.) No, the decision of the Courts are beyond A’s control and hence he should not be punished for the same 

C.) No, A cannot be held guilty of violating professional ethics as a maintenance allowance received under the IDA cannot be said be engaging in ‘another profession’ 

D.) Yes, because the receiving of maintenance allowance under S.17B is fraudulent 

E.) No, A cannot be held guilty as the matter is still sub-judice. 

5.) A, a practising enrolled advocate was serving as a chairman of the board of directors of a Company without any ordinary sitting fee, and none of A’s duties as Chairman of the Board of Directors was of an executive character. It is to be noted that A was not the Managing Director or a Secretary of the Company. Is A guilty of violating professional ethics? 

Principle: Subject to certain exceptions, an enrolled advocate may not take up any other profession 

A.) Yes, because the Advocates Act prohibits any enrolled advocates from practising any other profession. 

B.) No, because the Advocates Act allows certain exception and A’s role falls within that exception 

C.) Yes, A is guilty as he is the Chairman of the Board of Directors. However, he could have escaped the liability if he was the Managing Director 

D.) No, because professional ethics is not defined in the ‘Advocates Act 1960’ 

E.) No, because in order to violate professional ethics, a person has to be criminally liable. A’s liability, in this case, does not give rise to any such liability 

6.) In a criminal case against C, C could not secure the services of any senior members of the Bar. C approached almost every member of the Bar. However, each one of them refused to represent C. All senior counsels had already been retained by the complainants. C, with no other alternative left, approached B, another senior counsel. However, B rejected the brief on grounds of her connection with the complainant. Is B entitled to act in such a fashion? 

Principle: An advocate must accept any brief in the Courts or Tribunals or any other authorities; the fee should be consistent with the advocate’s standing at the Bar and the nature of the case. An advocate may refuse to accept a particular brief in special circumstances. 

A.) Yes, B is an independent advocate and has full freedom to accept not accept any brief according to her personal choice 

B.) Yes, because it is illegal for a counsel to take up a matter when she has connections with the opposite party according to the BCI rules 

C.) No, because B is, in morals bound to take up the matter of a helpless man, although there is no legal rule compelling B to do the same 

D.) No, because a lawyer has no right to reject a brief offered to her on payment of the fee agreed upon between the parties on grounds of connection to the opposing party 

E.) Yes, because the counsel’s connections with the complainant can qualify as the ‘special circumstances’ mentioned in the principle. 

7.) A, an advocate, wanted to retire from a case. A did not, however, file any instruction providing sufficient cause to retire. A did not provide sufficient notice to the client, C. A also did not ensure the refund of the parts of fees that was unearned. Would A be allowed to retire from the case? 

Principle: An advocate cannot, subject to certain conditions, usually retire from a case 

A.) Yes, A is not legally bound to do any of the above as the sole interest of the case is with C and A has no interest in it whatsoever 

B.) Yes, A is not bound to refund the unearned money as fees to lawyers are, according to BCI rules to be treated as ‘gifts’ and once given cannot be returned 

C.) Yes, He is an independent advocate and may retire from the case if he chooses to. However, he should refund the money to C. 

D.) No, because according to BCI rules, for an advocate to retire from a case, he has to fulfil all the above three criteria, and A has not filled any 

E.) No, because that would be a breach of contract between A and C 

8.) In a partition suit, A, an advocate, was representing defendant, D. D submitted an affidavit from P, which was critical to the case. The affidavit contained identification by the advocate, A. A here is a material witness to prove the genuineness of the affidavit. Can A be disbared from appearing in the case in case an application for such withdrawal is made? 

Principle: An advocate should not accept a brief or appear in a case in which an advocate has reason to believe that she will be a witness. 

A.) Yes, because if an advocate handling the case, later becomes a genuine witness to the case, he has a duty to retire from the case 

B.) No, because the client’s interest are foremost for the advocate and his retirement would jeopardise such interest 

C.) No, because the two roles being separate and not interrelated, discharging one does not hamper discharge of another 

D.) Yes, but only because it is a partition suit and the Code of Civil Procedure, 1908 makes it mandatory for advocates to act accordingly 

E.) No, because a mere verification of an affidavit is not in law enough to qualify one as ‘material witness’ 

9.) Advocate A was engaged by C, the client, to file a suit on two promissory notes for recovery with interest due against a debtor, D. Advocate A knew the D for 7-8 years and has been appearing for her in succession certificate proceedings. A, however, accepted the brief and did not inform C about prior connection with D. Is A guilty of violating professional ethics? 

Principle: An advocate must disclose any interest the advocate might have, in or about the controversy, that a client would like to know to decide whether to engage the advocate, or continue the engagement of the advocate. 

A.) No, because certificate proceedings are fundamentally different from suits on promissory notes. However, had this been a suit for certificate proceeding, A would have been in violation of professional ethics 

B.) Yes, because A is under a duty to make a full and frank disclosure to C. A could only continue representing C, if C had asked A to continue after A had disclosed his connection with D. 

C.) No, because the prior cases done by A on behalf of D has no connection with this case on against D. A cannot be expected to disclose each and everyone of his past clients to C 

D.) No, because an advocate- client relationship has an underlying sense of confidentiality. In fact, revealing that D was his past client would be breach of that confidentiality and violate professional ethics. 

E.) Yes, because according to law, A cannot take up such a case as there is a presumption of unfair trade practises against him 

10.) A is retained by C, the client, to defend C from an offence C allegedly committed under S.289 of the India Penal Code. C was charged with criminal negligence in taking care of a pet which had aggressive tendencies. The pet caused serious harm to a person, J. A is very scared of aggressive pets, as he was mauled by a dog when he was a kid. He strongly feels that pets which can harm human beings have no place in society. A also believes that such pet owners should be taught a lesson. However, there is no adequate evidence against C, but A himself is sure that C is liable. A takes up the case and deliberately loses. Is A guilty of professional misconduct? 

Principle: An advocate has a duty to uphold the interest of the client, regardless of personal opinion. 

A.) Yes, because A is obligated under the BCI rules to not let his personal opinion come in the way of an effective defence for C in a criminal matter. 

B.) Yes, because losing a case, deliberately or not, amounts to professional misconduct and incompetence 

C.) No, because A stood up for what he felt is right and that should be appreciated 

D.) No, because by appointing A as his lawyer, C has impliedly accepted to abide by whatever A’s opinion is on the matter, and he is bound by whatever the consequences of such opinion is 

E.) No, because it should be appreciated that A did whatever he did as a result of the mental trauma he suffered as a kid without any ill will or motive. 

11.) P was prosecuting D in a high-profile murder case. The case received immense media attention, and P was praised for building a strong case. P had found nine witnesses, who were ready to testify that D was the murderer. As time went by, however, P found that 8 of those 9 witnesses had contradicted themselves or withdrawn their statement. P started developing serious doubts about the truthfulness of the witnesses. P also discovered that the only witness willing to testify herself had a motive to murder the victim. Under the circumstances, does P have an obligation in law to refrain from prosecuting D? Principle: A prosecutor must also ensure that there is no suppression of material that can establish the innocence of the accused. 

A.) No, because she is appointed by the State and any obligation P has is moral and not legal 

B.) No, as the correctness of the witness’s statement is for the Judge to decide and not P, so in the interest of justice, she should carry on with her prosecution 

C.) No, he not need refrain from prosecuting D. He should, however, disclose all the material in the interest of justice 

D.) Yes, because the witness’s motive to murder the victim provides a new angel f consideration in the particular case 

E.) Yes, because he is in law duty bound to make a free and fair disclosure and then refrain from prosecuting D based on statements of such witnesses. 

12.) A, being charged with embezzlement, retains B, an attorney to defend her. In the course of the proceedings, B observes that an entry has been made in A’s account book, charging A with the sum said to have been embezzled, and that this entry was not in the book at the commencement of his employment. Is this fact protected from disclosure u/s 126 of Indian Evidence Act? 

A.) Yes, because this fact is confidential between B and his client A and revealing such would lead to violation of the fiduciary relationship between them 

B.) No, because S. 126 of the Indian Evidence Act is not applicable to the present case 

C.) No, this fact, being a fact observed by B in the course of employment, shows that fraud has been committed since the commencement of the proceedings. 

D.) Yes, because account books are generally kept in custody under the instruction of the Court and it is the job for the prosecution should undertake due diligence and observe the account books 

E.) No, because such cases of embezzlement of often relate to national interest and the fiduciary relationship of a lawyer- client cannot be used to override national interest. 

13.) A, a client, says to B, an attorney: “I wish to obtain possession of property by the use of a forged deed on which I request you to sue.” Is such a communication protected from disclosure? 

Principle: Any communication made in furtherance of any criminal purpose is not protected from disclosure 

A.) No, the communication, being made in furtherance of a criminal purpose, is not protected from disclosure. 

B.) Yes, because this is a communication for the purpose of engagement made to the advocate by the client during such an engagement, thereby protected under S. 126 of the Indian Evidence Act 

C.) No, because in order to protect a communication from being disclosed, such communication must be in writing 

D.) Yes, as there is no evidence of any such communication taking place 

E.) Yes, because such disclosure depends on the free will of the advocate and he can choose not to disclose it 

14.) C is one of the three children and heirs with a one-third interest in undivided ancestral property. C approaches A, an advocate, requesting an alternative to litigation through which the share in the familial property could be settled fairly and amicably. A says to C that from twenty years professional experience, A is of the view that the person who “…goes to the court and fights really dirty gets the most in a ancestral family dispute of this nature.” Is A’s advice in accordance with professional ethics and standards? 

Principle: It should be the first duty of a member of the legal profession to compose family differences and settle dispute and controversies, by amicable settlement. 

A.) No, because by telling the number of years of his experience, A is trying to intimidate and impose his own opinion on his client 

B.) Yes, because A has given his honest opinion after due consideration, drawing from his experience as a lawyer 

C.) No, because A, here is fomenting litigation rather than proposing an amicable settlement which is violative of professional conducted. 

D.) Yes, because in cases of the nature mentioned above litigation is unavoidable and any efforts at amicable settlement is futile and a waste of time 

E.) Yes, because the litigation that might ensue from his advice can be financially very profitable for A, and the professional conduct of advocates stipulates that financial considerations should be taken into account by the advocate before giving his opinion. 

15.) A, an advocate, withdrew a suit filed by the client for declaration that she was not the lawfully wedded wife of the defendant, upon her instructions. A then filed an application for maintenance without instructions from the client by obtaining her signature on blank sheets, on a false premise. Is A guilty for professional misconduct? 

Principle: An advocate has a duty to act only on the instruction of the client, and no one else. 

A.) Yes, A is guilty of professional misconduct for acting without the client’s instructions. 

B.) No, because A is, in law, duty bound to act for the best interest of his client. 

C.) No, because A’s actions were motivated by previous instructions provided to him by his client and she has not explicitly cancelled the said instructions 

D.) No, A is not guilty of professional misconduct as his action was for his client’s best interest, but he is guilty of criminal breach of trust for obtaining her signature on a blank paper and using them without her authority 

E.) Yes, because a suit for maintenance in law cannot be filed after a suit for declaration that his client is not the lawfully wedded wife of the defendant, and this points to his professional incompetency 

16.) A, an advocate, entered into an agreement with C, the client, who was dismissed from service. The fee agreement entailed that, that if A were able to recover past salary and allowance, A would receive a fee of Rs. 5,000/-. Is this agreement legal? 

Principle: The advocate has a duty to refrain from a fee arrangement contingent upon outcome of litigation. 

A.) Yes, the agreement is a full fledged contract according to S.10 of the Indian Contract Act , being between A and C with Rs. 5000 being the consideration based on the contingency of winning the case. 

B.) No, because such a contract is wagering in nature. 

C.) Yes, because this is prevalent method of transaction between advocate and clients in India. 

D.) No, because such a contract is contingent on winning or losing of the case A is barred from agreeing to receive a fee dependent on the success of suit or agree to share the proceeds of that litigation under BCI rules. 

E.) No, because the requisite amount to be given to A is below the requisite amount for advocates mentioned in the Minimum Wages Act. 

17.) A, an advocate, purchased a property which was under litigation. The sale deed was fictitiously drawn in the name of B, to conceal the actual purchase by A. A, however, appeared as a pleader in the litigation, and succeeded. B executed a deed of relinquishment in favour of A. Is A guilty of misconduct? 

Principle: An advocate cannot purchase any property sold in the execution of a decree or order in any suit, appeal or other proceeding in which the advocate was in any way professionally engaged 

A.) Yes, A is guilty of misconduct as A acquired an interest in a pending suit, in which A was acting as an advocate. 

B.) No, because an advocate has no restrictions in buying a property in execution of a decree in whose litigation he was involved as long as he buys it in another’s name 

C.) No, because an advocate has no restrictions in buying a property in execution of a decree in whose litigation he was involved 

D.) Yes, because although the buying itself is legal, buying the property in B’s name amounts to Benami transaction 

E.) Yes, because no man should take advantage of his own mistakes 

18.) A, an advocate, owes C Rs.500/- as a debt for rent. C approaches A to draft his will. A says to C “I will draft the will; in any event, I owe you Rs.500/-, and it will be a good way to settle the debt.” Is A in violation of any rule pertaining to professional ethics of advocates? 

Principle: An advocate should separate his professional commitments from personal commitments 

A.) No, A owed C Rs. 500, and as long as both parties consent, they can choose to settle the debt in amount manner they choose to. 

B.) Yes, because A is adjusting the legal fees for writing a will against the rent money, which is a personal liability A owes to C. 

C.) No, because non definable in terms of money like ‘drafting of a will’ in law is not good consideration for settlement of a debt of a definable amount of money 

D.) Yes, because it is not in consonance with professional ethics of advocates to draft wills in such a casual manner, that too without taking a NOC for the particular will from the respective State authorities 

E.) No, because these type of settlements are encouraged by the BCI in order to simplify the relationship between advocates and clients 

19.) A, an advocate, was retained by the testatrix, T, to draft a will. A made an entry to this effect in the register of wills maintained by A, and also gave a receipt to T. After the death of her husband, T hired another advocate, B. B requested A to return the will. A denied having the will. Is a guilty of violation of the principle stated below? 

Principle: An advocate must not abuse or take advantage of the confidence reposed in her by the client. 

A.) No, because the fact that T was hiring another advocate indicates the lack of confidence reposed in him by T 

B.) No, because A’s duties are owed solely towards T and not towards B 

C.) Yes because A is the bailee of the will and T is the head bailor, whereas B is the Sub-bailor 

D.) No, because the wills, made by A himself, are his own property as long as it is in his possession. However, he should however, refund any money taken from T for drafting the same 

E.) Yes, A’s act of not returning the will that was entrusted to A by T is an abuse of trust reposed in A by T. 

20.) A, an advocate, was representing C, the client, in a criminal appeal. A received a sum of Rs.750/- from the client towards printing expenditures. A deposited the sum with the Court. Later, A withdrew the unspent balance of Rs.242/- without C’s consent, and kept it. Is A guilty of misconduct? 

Principle: An advocate should keep accounts of the client’s money entrusted to the advocate by the client. 

A.) No, because by virtue of being C’s lawyer A has an implied authorisation to withdraw money on behalf of the client and use it for settlement of his fees. However, he should record the same in books of account 

B.) No, because the A has rightfully deposited the money into Court after receiving it 

C.) Yes, A is guilty of misconduct, as he should have shown in detail how much A received in the form of expenses, and how much was refunded to A by the court. 

D.) Yes, because A needs express authorization of his client to withdraw any money on her behalf 

E.) No, as printing expenses can qualify as ‘nominal expenses’ and does not need to be recorded in books of accounts 

21.) A, an advocate, appeared for C, the complainant, in a criminal matter. Later, A accepted a brief on behalf of D, the accused in the same matter, taking the consent of the C. Is A guilty of violating professional ethics? 

Principle: An advocate who has, at any time, advised in connection with the institution of a suit, appeal or other matter or has drawn pleadings, or acted for a party, shall not act, appear, or plead for the opposite party. 

A.) Yes, as A has first appeared on behalf of the complainant and then accepted a brief from the opposite party in the same matter. 

B.) No, because the above stated rule is restricted to civil matters not applicable to criminal matters 

C.) No, because the consent of both parties were obtained 

D.) Yes, because accepting briefs of both parties gives rise to a presumption of unfairness on A’s part 

E.) No, because ‘professional ethics’ is a volatile concept and has no fixed definition 

22.) Advocate A, aggrieved by an order of the Supreme Court dismissing a matter in limine, filed a writ petition before the Supreme Court, wherein A stated that the matter was improper for the Chief Justice of India to hear, and further stated that the dismissal was totally unjust, unfair, arbitrary, and unlawful, and a flagrant violation of the mandate under A.14; that was a violation of the sacred oath of office, and to declare that the Chief Justice’s holding office was unfair. It was also asserted that since the first petition was not disposed of by a five-judge bench, the order was non-est. Does such behaviour on A’s part, amount to criminal contempt? 

Principle: An advocate should always conduct himself with dignity and self-respect before the court. An advocate should not be servile. However, whenever there is a proper ground for serious complaint, against a judicial officer, it is an advocate’s right and duty to submit his grievance to the proper authorities. 

A.) No, because A has freedom of speech and expression under Art 19 of the Indian Constitution. 

B.) No, because there is a proper ground for complaint in this case and A has a right to submit her grievances 

C.) Yes, because the assertion that the order was non est, interferes with the administration of justice, as it attacks judicial finality, and questions the authority of the court. 

D.) Yes, because constitutional matters demands more etiquette on part of an advocate than other civil and criminal matters 

E.) Yes, because the conduct and eligibility of the Chief Justice cannot be questioned by an advocate. 

Answer Key of Professional Ethics Quiz 1

1.) C 2.) D 3.) E 4.) A 5.) B 6.) E 7.) D 8.) A 9.) B 10.) A 11.) E 12.) C 13.) A 14.) C 15.) A 16.) D 17.) A 18.) B 19.) E 20.) C 21.) C 22.) C 

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This article is written by Gaurav Raj Grover, a fifth-year law student at Lloyd Law College, Greater Noida. This article talks about the meaning of the preamble.

The Preamble of the Indian Constitution states:

“WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens

JUSTICE, social, economic and political;

LIBERTY of thought, expression, belief, faith, and worship;

EQUALITY of status and of opportunity; and to promote among them all

FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation;

IN OUR CONSTITUENT ASSEMBLY this  26th day of November 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION”.

What is the Preamble?

A preamble of a bill is an introductory part of the document which explains the purpose, rules, regulations, and philosophy of the document. A preamble gives a brief introduction of documents by highlighting the principles and fundamental values of the document. It shows the source of the authority of the document. 

The preamble of the Constitution of India is an introduction of the Constitution which includes the sets of rules and regulations to guide the people of the country. The inspiration and the motto of the citizens are explained in it. The preamble can be considered as the beginning of the Constitution which highlights the base of the Constitution. 

Historical Background of Indian Constitution

Before 1947, India was divided into two main parts – 11 provinces that were ruled by the Britishers and Princely states ruled by Indian princes under the command of Britishers. Combining these two units formed the Union of India. The preamble is based on the principles written by the Constituent Assembly. 

It provides a way of life, which includes fraternity, liberty, and equality as the notion of a happy life and which can not be taken from each other. Liberty, equality, and fraternity and connected with each other and they can not be separated, which means without equality, liberty would produce the supremacy of the minority over the majority. Equality without liberty would kill individual perception. And fraternity helps liberty and equality in their course of action. 

Who wrote the Preamble of India and Date of its Adoption

The Preamble of the Indian Constitution is primarily based on the ‘Objective Resolution’ written by Jawaharlal Nehru. He introduced his objective resolution on December 13, 1946, later it was accepted by the Constituent Assembly on 22 January 1947. 

The drafting committee observed that the preamble must be limited in defining the important features of the new state and its socio-political objectives and other important matters should be refined further in the Constitution. The committee changed the motto from ‘Sovereign Independent Republic’ to ‘Sovereign Democratic Republic’ as it was mentioned in the ‘Objective Resolution’. 

The preamble can also be called the soul of the constitution as it has everything about the constitution. It was adopted on 26th November 1949 and it was started from 26th January 1950 also known as the Republic Day. 

Components of Preamble of the Indian Constitution

The components of the preamble are:

1. The preamble shows that the people of India are the source of authority. It means power lies with the citizens to elect their representatives and they also have the right to criticize their representatives. 
2. It comprises the date of its adoption which is November 26th, 1949. 
3. It states the objectives of the Constitution of India, which are justice, liberty, equality, and fraternity to maintain the integrity and unity of the nation as well as the citizens.
4. It also justifies the nature of the Indian State, which is Sovereign, Socialist, Republic, Secular, and Democratic. 

P.A. Inamdar v. the State of Maharashtra

In this case, the Supreme Court delivered a unanimous judgment declaring that the state can not impose any reservation policy on minority and non-minority unaided private colleges, including professional colleges. 

This judgment was an attempt to clear the previous judgments of the Supreme Court on the case of T.M.A. Pai Foundation v. the State of Karnataka and Islamic Academy of Education v.  the State of Karnataka. 

The Supreme Court discussed some topics in this judgment related to minority and non-minority unaided higher education institutions: 

• Reservation Policy

The Supreme Court stated that neither the policy of reservation nor any quota or percentage of admission can be enforced by the State in any minority or non-minority unaided educational institutions.

The institutions are free to admit students of their own choice including students of other communities and also the students of the same communities from different states in any manner the institution wants. 

The State can not impose policies on reservation for giving admission on marks less than the criteria set by the Private Educational Institutions who do not ask for help from the state. Even if the state is providing minimum resources to the private educational institutions, that is no ground a state can implement its policies to force the institute on granting admissions to students with fewer marks than the given criteria. 

• Admission Policy

The Supreme Court stated that the minority unaided educational institutions can enjoy total freedom until their undergraduate education. But there would be different provisions to apply for graduate and postgraduate level of education and also for technical and professional educational institutions. 

In the minority educational institutions, transparency, and merit of the institute must be assured. The state is allowed to conduct common entrance tests to provide fair and merit-based admissions and removing the wrong administration. 

The same candidate is allowed to appear in several tests. For every test, a merit list is created to identify the selected candidates who cleared the test and different institutions are allotted to the students depending on their marks and the admission is based on the score of the test and the options of the student filled in the admission form. 

• Fee Structure

The Supreme Court stated that a reasonable fee structure is a very important component in the administration of the institution. It means that every institution is free to make its own fee structure but they can not abuse profits from the students and they can not charge capitation fees in any form. 

The fees structure depends on certain factors which determine the reasonability of the fees:

1. The infrastructure and facilities available.
2. The investments made.
3. Salaries of the teachers and staff.
4. Future plans for expansion.

The Court held that the institutions must make a reasonable surplus which should not increase 15% for their future plans and betterment of the institution. 

• Regulation and Control by the State

The judgment of the case established some rights to administer an institution:

• To admit students.
• To set up a reasonable fee structure.
• To constitute a  governing body.
• To appoint staff (both teaching and non-teaching).
• To take action against problems.

It is an option for the minority educational institute to choose if they want to take help from the state or not. No institute can conduct any activity which violates the law in any way. So, the state can make provisions on the quality of the teachers and the minimum qualification of their course, but they can not interfere in their day-to-day administration. The main purpose of the management is to regulate the admission of students, recruiting staff and calculation of fee-structure which can not be controlled by the state. 

• Role of Committees dealing with admissions and fees

The Supreme Court stated that non-minority unaided educational institutions must have certain restrictions that are in favor of the students. Professional education must be available to all eligible students on merit basis and nothing else. 

So, committees must be established to regulate the admission procedure and to monitor the fee structure. Committees must look over the administration to avoid all the mal-practices which can be created by the administration. If any committee misuses their power in any individual institute, the decision can be questioned by the administration as the committee is quasi-judicial in nature. 

Objectives of the Indian Constitution

The main objective of the Indian Constitution is to promote harmony throughout the nation. As we know, the Constitution is the supreme law and it helps to maintain integrity in the society and to promote unity among the citizens to build a great nation. The factors which help in achieving this objective are:

Justice

The term ‘Justice’ comprises of three elements that complete the definition, which is social, economic, and political. Justice among the citizens is necessary to maintain order in society. Justice is promised through various provisions of Fundamental Rights and Directive Principles of State Policy provided by the Constitution of India. 

• Social Justice – Social justice means that the Constitution wants to create a society without discrimination on any grounds like caste, creed, gender, religion, etc. Where people have equal social status by helping the less privileged people. The Constitution tries to eliminate all the exploitations which harm equality in the society.
• Economic Justice – Economic Justice means no discrimination can be caused by people on the basis of their wealth, income, and economic status. It means wealth must be distributed on the basis of their work, not with any other reason. Every person must be paid equally for an equal position and all people must get opportunities to earn for their living.
• Political Justice – Political Justice means all the people have an equal, free and fair right without any discrimination to participate in political opportunities. It means everyone has equal rights to access political offices and have equal participation in the processes of the government. 

Equality

The term ‘Equality’ means no section of society has any special privileges and all the people have given equal opportunities for everything without any discriminations. It means removing all types of discriminations from society to build a healthy environment for the people to live in. Everyone is equal before the law. 

Liberty

The term ‘Liberty’ means freedom for the people to choose their way of life, have political views and behavior in society. It means no unreasonable restrictions can be imposed on the citizens in terms of their thoughts, feelings, and views. But liberty does not mean freedom to do anything, a person can do anything but in the limit set by the law. Anything which can create public disorder can not come under liberty. These limits are set by the Constitution to avoid injuries in the name of liberty.

Fraternity

The term ‘Fraternity’ means a feeling of brotherhood and an emotional attachment with the country and all the people. It refers to a feeling which helps to believe everyone is the children of the same soil and are connected with each other. Brotherhood is above social norms or regulations, it is the relationship above caste, age, or gender. Fraternity helps to promote dignity and unity in the nation. 

The preamble of the Indian Constitution does not grant any power or superiority to anyone while it gives direction and purpose to the Constitution. It only gives the fundamentals of the Constitution. It promotes equality by providing equal opportunities to the people without any discrimination. It helps in protecting all the people and maintaining the economic, social, and political justice among the citizens. Also, the preamble helps in explaining the facts which are needed to be explained. 

Is Preamble a part of the Constitution?

This is a very controversial topic as there have been many discussions about the preamble being part of the Constitution. This question can only be answered by reading two cases. 

Berubari Case

Berubari Case was used as a reference under Article 143(1) of the Constitution which was on the implementation of the Indo-Pakistan Agreement related to Berubari Union and in exchanging the enclaves which were decided for consideration by the bench consisting of eight judges. 

Through this case, the Court stated that ‘Preamble is the key to open the mind of the makers’ but it can not be considered as the part of the Constitution. 

Kesavananda Bharati Case

This case created history as for the first time, a bench of 13 judges was assembled to hear a writ petition. The Court held that:

1. The Preamble of the Constitution will now be considered as part of the Constitution. 
2. The Preamble is not the supreme power or source of any restriction or prohibition but it plays an important role in the interpretation of statutes and provisions of the Constitution. 

So, it can be concluded that preamble is part of the introductory part of the Constitution. 

Amendment of the Preamble

After the judgment of the Kesavanand Bharati case, it was accepted that the preamble is part of the Constitution. So, as a part of the Constitution, it can be amended under Article 368 of the Constitution, but the basic structure of the preamble can not be amended. Because the structure of the Constitution is based on the basic elements of the Preamble. As of now, the preamble is only amended once through the 42nd Amendment Act, 1976. 

42nd Amendment Act, 1976

The 42nd Amendment Act, 1976 was the first act ever to amend the preamble of the Constitution. On December 18th, 1976, ‘Socialist’, ‘Secular’, and ‘Integrity’ were added to the preamble to protect economic justice and eliminate discrimination whatsoever. Through this amendment, ‘socialist’ and ‘secular’ were added between ‘sovereign’ and ‘democratic’, and ‘Unity of the Nation’ was changed to ‘Unity and Integrity of the Nation’. 

Interpretation by the Supreme Court

The preamble was added to the Constitution after the enactment of the Constitution. In the Berubari Union Case, the Supreme Court held that the preamble is not a part of the Constitution rather it was considered as the guiding principle for the provisions of the Constitution. 

In the Kesavananda Bharati case, the Supreme Court changed its previous decision and accepted preamble as part of the Constitution which means it can be amended under Article 368 of the Constitution. 

In the LIC of India case, the Supreme Court continued with its judgment on declaring preamble as part of the Constitution. 

So, in the end, the preamble of the Constitution is considered a beautiful preface to the document as it contains all the basic information like the objective and philosophy of the Constitution. 

Key Words in the Preamble

Sovereign

The preamble of the Constitution states that India is a Sovereign State. The term ‘Sovereign’ means the independent authority of the state. It means the state has control over every subject and no other authority or external power has control over it. So, the legislature of our country has the powers to make laws in the country with restrictions keeping in mind imposed by the Constitution. 

Sovereignty, in general, has two types: External and internal. External sovereignty means the sovereignty in International Law which means the independence of the state against other states while internal sovereignty talks about the relationship between the state and the people living in it. 

In the case of Synthetic & Chemicals Ltd. v. the State of Uttar Pradesh, the Supreme Court decided that the word ‘sovereign’ means that the state has the authority everything within the restrictions given by the Constitution. Sovereign means supreme or independence. This case helped in differentiating between external and internal sovereign. This case proposed that ‘No country can have its own constitution unless it is not sovereign’. 

Socialist

The term ‘Socialist’ was added after the 42nd Amendment, 1976, during the emergency. The term socialist denotes democratic socialism. It means a political-economic system that provides social, economic, and political justice. 

Mrs. Indira Gandhi explained socialist as ‘equality of opportunity’ or ‘better life for the people’. She said socialism is like democracy, everyone has their own set of interpretations but in India socialism is a way for the better life of the people. 

• In the case of Excel wear v. Union of India, the Supreme Court found that with the addition of the word socialist, a portal is opened to lean the judgments in favor of nationalization and state ownership of the industry. But the principle of socialism and social justice can not ignore the interest of a different section of the society majorly the private owners. 
• In the case of D.S. Nakara v. Union of India, the Court held that ‘the basic purpose of socialism is to provide a decent standard of life to the people living in the country and to protect them from the day they are born till the day they die’. 

Secular

The term ‘Secular’ was also added by the 42nd Amendment Act, 1976, during the emergency. The Constitution states India as a secular state as the state has no official religion. The citizens have their own view of life and can choose their religion as they like. The state provides full freedom to the people to practice any religion of their choice. The state treats all religions equally, with equal respect and can not discriminate between them. The state has no right interfering with the people with their choice of religion, faith or idol of worship. 

Important Components of Secularism are:

1. The right to equality is guaranteed by Article 14 of the Constitution. 
2. Discrimination on any grounds such as religion, caste, etc is prohibited by Article 15 and 16 of the Constitution. 
3. Article 19 and 21 of the Constitution discuss all the freedoms of the citizens, including freedom of speech and expression. 
4. Article 24 to Article 28 covers the rights related to practice religion.
5. Article 44 of the Constitution abandoned the fundamental duty of the state to enact uniform civil laws treating all citizens as equal.

In the case of S.R. Bommai v. Union of India, the nine-judge bench of Apex Courts found the concept of secularism as the basic feature of the Constitution. 

In the case of Bal Patil v. Union of India, the Court held that all religions and religious groups must be treated equally and with equal respect. India is a secular state where people have the right to choose their religion. But the state will have no specific religion. 

In the case of M.P. Gopalkrishnan Nair v. the State of Kerala, the Court stated that the secular state is different than an atheist society, which means the state allows every religion and disrespect none. 

Democratic

The term ‘Democratic’ is derived from the Greek words where ‘demos’ means ‘people’ and ‘Kratos’ means ‘authority’. Which concludes that the government is constructed by the people. India is a democratic state as the people elect their government at all levels, that means, union, state, and local or ground level. Everyone has the right to vote irrespective of their caste, creed or gender. So, in a democratic form of government, every person has a direct or indirect share in administration. 

In the case of Mohan Lal v. District Magistrate of Rai Bareilly, the Court stated that Democracy is a philosophical topic related to politics where the people elect their representatives to form a government, where the basic principle is to treat the minority the same way people treat the majority. Every citizen is equal before the law in the democratic form of government. 

In the case of Union of India v. Association of Democratic Reforms, the Court states that the basic requirement of a successful democracy is awareness of the people. A democratic form of Government can not survive without fair elections as fair elections are the soul of democracy. Democracy also improves the way of life by protecting human dignity, equality, and the rule of law. 

Republic

India has a republic form of government as the head of state is elected and not a hereditary monarch like a king or queen. The term ‘Republic’ is obtained from ‘res publica’ that means public property or commonwealth. It means the power to elect the head of the state for a fixed term lies within the people. So, in conclusion, the word ‘republic’ shows a government where the head of state is elected by the people rather than any birthright. 

15 Facts you didn’t know about the Preamble

1. The original Constitution of India was written by Prem Bihari Narain Raizada in calligraphy with flowing italic style. 
2. The original copies of the Indian Constitution written in both Hindi and English are present in special helium-filled cases, in the library of the Parliament of India. 
3. The Indian Constitution consists of 25 parts with 448 articles and 12 schedules, which makes it the longest written constitution of any sovereign country in the world.
4. The Constituent Assembly took exactly 2 years, 11 months, and 18 days to complete the final draft of the Indian Constitution. 
5. Around 2000 amendments were made before finalizing the Constitution. 
6. The preamble of the Constitution of the United States of America also starts with ‘We the people’. 
7. The concept of fundamental rights came from the American Constitution as they had nine fundamental rights for the citizens. 
8. The 44th amendment deleted the Right to Property as the fundamental right which was given under Article 31 of the Constitution as ‘No person shall be deprived of his property save by authority of law’. 
9. The Constitution of India is considered as the best Constitution as it tries to change the errors or mistakes in it. Because of this, the Constitution had more than 100 amendments in the past. 
10. The page of the preamble along with all the other pages of the Constitution were designed and decorated by the renowned painter Beohar Rammanohar Sinha of Jabalpur. 
11. The Constitution of India is a handwritten Constitution that was signed on 24th January 1950 by 284 members of the Constituent Assembly, where 15 of them were women came into force on 26th January, two days later from signing. 
12. The final draft of the Constitution was completed on 26th November 1949 and it came into force after two months on 26th January 1950 known as Republic Day. 
13. Many provisions are adopted from various Constitutions by our drafting committee while drafting the Constitution. 
14. The concept of Directive Principles of State Policy (DPSP) is adopted from Ireland. 
15. The concept of Liberty, Equality, and Fraternity in our Preamble was adopted from the French Motto of the French Revolution. 

Conclusion

In conclusion, it will not be wrong to say that the preamble is an integral part of the Constitution because it contains the spirit and ideology of the Constitution. The preamble highlights the fundamental values and guiding principles of the Constitution. The preamble declares that the citizens of India accepted the Constitution on 26th November 1949, but the date of commencement of the Constitution was decided to be 26th January 1950. 

Article 394 of the Constitution states that Articles 5, 6, 7, 8, 9, 60, 324, 367, 379 and 394 came into force since the adoption of the Constitution on 26th November 1949 and the rest of the provisions on 26th January 1950. The preamble of the Constitution of India is one of the best preambles ever drafted, not only in ideas but expressions as well. It contains the purpose of the constitution, to build an independent nation that protects justice, liberty, equality, and fraternity which are the objectives of the Constitution.

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This article is written by Tanya Manglic, a student at Symbiosis Law School, Noida. In this article, she discusses about Maintenance given to Women Under Hindu Marriage Act, 1955.

Introduction

Maintenance is covered under section 24 of the Act of 1955 which provides relief and relaxation in terms of money and litigation expenses to the spouse who is parted from the marriage and unable to maintain his living during the tenure of proceedings. It has also been provided that the sum of money and the expenses of the proceeding should be disposed of within sixty days as under the followings of the issued notice on the wife or husband. Maintenance is granted to the spouse as a financial assistance to its litigating parties by order of court if any application has been filed and she does not have any source of income.

Maintenance has certain laws under the accompanying headings and sub-headings: Maintenance of Wife under Hindu, Muslims, Christian and Parsi Laws:

(a) Analysis of the authoritative arrangements.

(b) Evaluation of the legal proclamations.

(c) Recognizable proof of traps.

(d) Advocacy of changes and enhancements.

Under Hindu Law, the maintenance for wife deals with the specific and relevant provisions of Modern Hindu Law. The area of drawback of the case has been found during the procedure of the investigation of the administrative arrangements and the assessment of the legal professions. Hindu Marriage Act, 1955 and the Hindu Adoption and Maintenance Act, 1956 contained provisions which therein are required to discuss or to know the legislation position of wife under these Acts. The relevant provisions which are there: Section 24, and Section 25 of the Hindu Marriage Act, 1955, and Section 18 of the Hindu Adoption and Maintenance Act, 1956 which contain the prescribed law. Section 24 of the Hindu Marriage Act, 1955, manages the divorce settlement during the pendent light and the costs of the procedures. 

This Section enables the court to arrange the respondent to pay the candidate the expenses incurred at the time of the procedures, by determining that it creates the impression that either spouse or the husband has not free salary for his or her support and to meet out the important or necessary costs of the procedures. If we talk about the Section 25 then it considers the permanent alimony and maintenance, by keeping in view the respondents own income and its property.

Explanation of Maintenance Under Hindu Marriage Act, 1955

The right to claim for the maintenance under the Hindu Marriage Act, 1955 is an independent or absolute right and it is not being governed or maintained by the Hindu Adoption and Maintenance Act, but the main authority i.e. the jurisdiction of the court cannot be ousted on the plea that the applicant whose rights are mentioned under the Hindu Marriage Act is already getting maintenance under the Hindu Adoption and Maintenance Act, but while fixing the quantum of maintenance that may be taken into consideration. Under the Hindu Marriage Act, it has been determined that either of the spouse can seek maintenance, but there is a special provision under the Code of Criminal Procedure and Hindu Adoption and Maintenance Act, where only the wife can claim maintenance under this Act.

Section 18 – Maintenance of Wife

This provision is especially created to provide a support to the married women. It doesn’t matter that the Hindu wife, whether married before or after the commencement of this Act because every wife will get maintenance by their husband during their life tenure. Section 18(1) is applicable to the wife who is living with her husband. The wife who has ceased to be Hindu cannot claim for the maintenance but an unchaste wife who has been living with her husband under the same roof has the authority to claim for the maintenance by the court. 

(2) A Hindu spouse or wife shall be entitled to live their life independently from her better half without relinquishing her to forfeit the maintenance. 

1. If he is liable of abandonment or of stubbornly dismissing her. 
2. If he has regarded her with so much cold-bloodedness as to cause a sensible apprehension in her mind that it will be destructive or harmful to live with her husband. 
3. If he is experiencing a harmful type of infection or leprosy.
4. If he has some other spouse living and can be known as extra marital affairs.
5. If he keeps a mistress in a similar house wherein his better half is living or routinely lives with a concubine somewhere else. 
6. If he has stopped to be a Hindu by transformation to another religion. 
7. If there is some other reason legitimizing living independently. 

(3) (Forfeiture of the claim for the maintenance or support). A Hindu spouse will not be qualified for discrete living arrangements and support in the form of maintenance from her husband on the off chance that she is unchaste or stops to be a Hindu by transformation to another religion.

Amount of Maintenance to the Wife

Under section 23, the power to decide whether any or not the compensation should be given to the wife as maintenance to be awarded under this Act lies on the discretion of the court. The court will consider the following:

• The status and position of both parties.
• The wants that are claimed by the claimant are reasonable.
• If the claimant is separated than it is justified to do or not.
• Number of persons who have right to claim maintenance.

Section 25 states that the amount of maintenance which has to be given whether decided by the court decree or by the agreement will be changed only if there is materialistic change in the circumstances. But under Section 24, the spouse cannot claim for the maintenance if they ceased to be Hindu by conversing their religion to another.  In the case of Kanchan v. Kamalendra where the husband claimed for the maintenance under section 24 of this Act. However, to claim for the maintenance the husband has to prove something strong like any illness or disability to earn for his livelihood. As the wife in this case was the employee earning Rs. 2000 in which she needs to run her household expenses and to maintain her child.

The court further added that mere closure of the business will not be taken as a valid or strong point for claiming the support from wife. In these matters the court will not solely rely on the facts for the approval of maintenance as the husband was capable enough to promote idleness. This will be opposed to the idea of section 24 of this Act. The trial court after considering all the facts came to the decision without any justification for providing maintenance in favour of the non-applicant husband who claimed for maintenance.

Women Issues and Laws

There are four major entitlements which women own after the divorce or separation from the husband: title; fault; need and contribution. In India we tend to follow the laws of old English system which is the separation of property where rights of person are based on its title or highly upon the economic contribution. Women are expected to be a home keeper and no they were prevented from doing any job. There are instances where women have been penalised by the court for going out for work as they are considered to be a caretaker of the family. Under the common law regime there is a notion that husband property will be treated as exclusive property. 

There is only one provision under the matrimonial statute which states the issues relating to property division is section 27 of Hindu Marriage Act “property presented at the time of marriage or after will be acquainted by both the husband and wife”. 

The famous case of Kamalakar Ganesh Sambhus V. Master Tejas Kamalakar Sambhus reads out the fact that women established that in the house construction was done with half of the amount invested by her, so the Bombay High Court held that the order of the family court on these grounds should be set aside and the woman should be given the right on the property as it was economically supported by her as well. Further, the court also expanded the provisions given under section 27 of Hindu Marriage Act and ruled by stating that it can be invoked to pass the orders regarding the rights by separating properties of the party and or even the tenanted premises. 

These steps have been taken because the provisions of maintenance were more crucial for the divorced and deserted women and the ones who have conflict in their marriage. It is the right of the women to maintenance which need to be mentioned within the citizen claims in the constitution. Despite the several changes, clause 4 and 5 of section 125 give the scope to the husband who engages to destitute and deserted women in protracting and demeaning litigation. These false and harsh interventions grab the women in circuitous legal commotion which cause them problems like emotionally charged, financially drained and very time consuming.

When it comes to matrimony it creates a number of rights and obligations on the spouses to perform against each other where maintenance is one of these obligations. A husband has the obligations towards his wife which he has to maintain during the coverture and even at the time of separation and divorce. The Hindu Marriage Act, 1955 applicable to only Hindus which maintain and create laws or provisions for the maintenance of wife. The wife need to file a complaint against her husband and if found there is no such litigation, than she has no right given to claim any maintenance under the personal laws.

Apart from the personal laws mentioned above, there is section 125 of the code of criminal procedure which also provides the maintenance but irrespective of any religion. There are certain provisions enacted with an idea of some object:

1. For the speedier remedy.
2. To avoid and prevent from vagabondage and destitution of persons.

The essentials which are needed to prove for the application of section 125 are as follows:

1. That the husband has sufficient means.
2. Neglects and denies to give maintenance to his wife.
3. Wife is unable to manage her living.

On the fulfilment of these grounds the wife has the right to claim for the maintenance under this section. All the laws are independent in nature where they do not have any connection to other laws. The one law under which the wife claims will not bar upon the other law. The women’s low economic status has even restricted the court to create certain provisions for them. 

In the case of Rajeshri v. Shantibai, the first wife claim to have the right over the property of her deceased husband but she was denied to do so by his second wife and his brother. After going through the facts, the court declared the first wife as the sole heir of the property. Then the question arose by the second wife who was merely a mistress. She was neither the heir under Hindu Succession Act nor was she dependent on her own under the Hindu Adoption and Maintenance Act, 1956. So after analysing all the given facts, Justice Masodkar declared that woman as an illegitimate wife of her husband. He further interpreted the facts and said that the measures which are given for maintenance by themselves are secular and social in character. But it has been therefore submitted by the prevalent judicial interpretation of section 25 which allows the second wife where she has right to claim for the maintenance applicable to section 125 of the code. At least, when the there should be provision where the second wife is not aware of the first wife and should get maintenance.

Conclusion

It is well said and also being recognised in Hindu law that the right of maintenance provided to the helpless women is substantive and a continuing right and also the amount of maintenance varies from time to time. The court’s responsibility is to keep into account the status of the opposite party who has claimed for maintenance and then its further amount should be decided. This is because of the Section 25 which provides the right to the party in a marriage to support them with the remedy in the form of alimony and maintenance where they pass any decree under the Act or at any time there into.

After the amendment and the changes brought down in the Hindu Marriage Act, 1976, the scope of the Act has been widened up and now this new changes make it mandatory for the court of law to grant full opportunity to the parties to affirm their rival arguments by leading proper arguments given by them. The court should also not neglect to take into consideration the other sides which may affect the grant or payment of maintenance besides the income and their conduct of behaviour during the proceedings.

Section 24 and Section 25 of the said demonstration manages the arrangements of permitting pendente light and perpetual support individually. In Dr. Kulbhushan v/s Raj Kumari and Anr, the court while choosing the measure of support, saw that it is resolved by depending on the realities of each case by following the precedent and announced that on the off chance that the court upgrades or shape the measure of maintenance, at that point such a choice would be legitimized. It was additionally held for this situation that it is reasonable to give the spouse 25% of husband’s net income as compensation for the support. 

• Under Section 24 of the demonstrative Act if the court thinks about that fit and is fulfilled that either spouse or husband does not have a free pay, at that point it can arrange the respondent to pay the support to the applicant as per the arrangements of this Section. In this manner, the petitioner can be a spouse too. 
• Further, as indicated by the arrangements of Section 25 of the Act, which manages the allowing of divorce settlement on a permanent basis, the court may on the application made by the respondent, request to accommodate the maintenance or alimony either as periodical instalments or a gross whole to be given. Along these lines, for this situation the respondent can either be a spouse or a husband. 
• The motivation behind deciphering the arrangement along these lines is to stay away from the separation in light of the fact that both a couple are equivalent according to law.

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It is expected that the questions will primarily be framed from the Information Technology Act, 2000 (as amended in 2008), there might be cases where questions may be asked from the associated rules as well. It is essential that the students carry a Bare Act which contains the Rules as well, which is available in the market from any law books publisher. The students should be familiar with the important concepts, definitions, offences and adjudication mechanism. 

This is a concise guide on the Information Technology Act, which can be used for a short recall and revision of the concepts and the provisions just before the exam. 

Important Provisions of the Information Technology Act and its functioning 

With the advent of the internet, various aspects of daily activity such as shopping, communication, interaction, and commercial transactions started occurring online. The IT Act was essentially passed to give recognition to electronic modes of communication, prescribe standards for the authenticity of the communication and security standards for organizations which collect data.

At the same time, those who provide online platforms (e.g. search engines, blogs, social media networks, etc.) for third parties to interact or upload and share content have additional responsibilities to ensure that such content is not harmful for the rights of others. Crimes using technology were also made punishable offences. 

A conceptual understanding of these has been explained below. 

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Legal recognition of electronically stored information or ‘electronic records’ and e-governance (Sec. 4 and S. 6, 6A, 7,8 and 9 of IT Act) 

As per the Information Technology Act, an electronic version of any document would be treated in the same manner as a written or printed version. 

The IT Act also provides for recognition and usage of electronic records for filing, issuance of receipt, or payment, retention of documents in electronic form, publication of rules, regulation in electronic gazette and treating such electronic records at par with the physical maintenance, publication, delivery or transaction of the particular event. 

Provisions for authentication of electronic communication 

• Electronic and Digital Signature (Sec. 3 & 3A, 5) 

The relevance of digital signatures is best illustrated by the following question – when a specific communication has been sent, how does one identify whether the person who is purported to be the sender has actually despatched the communication? The IT Act prescribes authentication methods that can be applied to such communication – if these methods have been followed then it is presumed that the sender had actually sent the 

Any electronic record (i.e. information that is stored digitally) can be authenticated by using a digital signature (consisting of asymmetric crypto system and hash function) or an electronic signature (which is considered to be reliable and notified by the Central Government). Where a legal provision requires a particular document to be signed (say, for example, a declaration by the directors of the company that is required to be filed with the statutory authority), such document can be digitally or electronically signed in a manner prescribed by the Central Government. (Section 5, IT Act) 

What is the advantage of a digital or electronic signature? 

The identity of the sender of an ordinary email or the creator of an electronic document could be challenged in ordinary cases – unless a digital signature is appended. From a legal perspective, appending a digital signature to a document is considered to be reliable evidence of the following: 

1. The genuineness of the identity of the person who created or signed the document (i.e. that there was no forgery) and that ii) the document did not tamper during transmission. 

Fraudulent or dishonest use of a digital or electronic signature is punishable with imprisonment of up to 3 years or fine of INR 1 lakh. 

Note: Governance of digital signatures and Electronic Signature Certification Authorities (Sec. 17-39) 

As per the IT Act, only ‘Certification Authorities’ can provide digital signatures which are recognized by the government. These Certification Authorities are regulated by the ‘Controller of Certifying Authorities’, which exercises supervision over the Electronic Signature Certifying Authorities and laying down the standards to be maintained by the Certifying Authorities. 

The validity of electronic contracts (Sec. 10-A) 

Are electronically executed contracts valid, or should all contracts be signed in physical form? 

As per the IT Act, contracts (except on the matters listed below) which are in electronic form will be considered valid, unless there are additional requirements imposed by another law (such as having a minimum number of witnesses, or compliance with the provisions of the Indian Contract Act) to which the contract applies, and which have not been met.

Under Indian law, for a contract to be binding and enforceable in a court, it  should be in writing and should be adequately stamped (as per the law of the appropriate state). For most ordinary contracts, no additional requirements are required. However, there are certain instruments to which the IT Act does not apply, and hence they cannot be entered into electronically. These are listed below : 

• Negotiable Instruments 
• Powers-of-attorney 
• A trust deed 
• A will 
• Contracts for the sale or any other kind of transfer of an interest in immovable 

These instruments do not have the recognition that the IT Act grants to other instruments (discussed below). Therefore, it is advisable to execute these in physical form. 

There is no legal requirement to affix a digital/ electronic signature to such documents. 

• Attribution, Acknowledgment and Despatch of Electronic records (Sec. 11-13) 

An electronic record or document sent can be attributed or credited to that person, if it was sent by the originator himself, or he had the authority to send the document, or was automatically sent through a programme created by the originator himself. 

A person can confirm the receipt of an electronic record, where the sender has not specified any particular manner to acknowledging the receipt, by communicating the receipt through any manner (including automated receipts) or by conduct. However, if the sender of such electronic record wants a receipt of acknowledgement, unless such acknowledgement has been given by the recipient, it will be deemed that the electronic record was never sent. 

Data protection and breach (Sec. 43-A, 72, 72-A of IT Act) 

Indian law imposes certain obligations on entities which collect certain kinds of personal information of individuals which is considered to be ‘sensitive’. The obligations may apply to e-commerce websites, banks, employers, hospitals, and other entities, if they collect personal information of users.

The obligations for data protection have been mentioned in Section 43-A, 72, 72-A the Information Technology Act, 2000 (IT Act) and the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011 (SPDI Rules). The obligations under the IT Act and the SPDI Rules are applicable to body corporates, which includes companies, firms, or any association of individuals engaged in commercial activities that involve the collection of sensitive personal data or information. Thus, a partnership firm which collects sensitive data will have to comply with the SPDI Rules. 

Exceptions 

1) The rules are not applicable when data is collected or processed by an individual, e.g. a proprietorship business.

2) The SPDI Rules are also not applicable to Indian companies which collect and process data of foreign nationals – e.g. UK or US citizens. 3) Collection of information pertaining to a firm, partnership, trust, company, LLP, etc. will not attract data protection requirements under Indian law. 

Under Indian law, SPDI can be collected only: 

(i) the purpose for which the information is collected is lawful and is connected with a function or activity that the body corporate carries out, and (ii) if the collection of such information is necessary. 

Breach of confidentiality – punishment and adjudication (Section 46) 

The IT Act criminalizes the disclosure of confidential information obtained pursuant to a contract by any person (including an intermediary) with the intention of causing wrongful loss or gain with imprisonment up to three years and a fine of up to INR 500,000. Moreover, a body corporate handling any sensitive personal data or information will be liable to pay for the damages 

One can file an application before the Adjudicating Officer appointed under Section 46 of Information Technology Act, 2000 claiming breach of reasonable security procedures by a body corporate or any breach of the provisions from Section 43 to 45. The Adjudicating Officer has the power of a Civil Court to adjudicate in the matters where the claim does not exceed Rs 5 crores and give appropriate reliefs including interim orders and order for payment of damages. All appeals from the Adjudicating officer’s order lies with the Cyber Appellate Tribunal, which must be made within 45 days of receiving the certified copies of the order. 

• Appeals process – Cyber Appellate Tribunal (Sec 48-50, 57-64) 

All appeals from the order of adjudicating officer or the Controller lies with the Cyber Appellate Tribunal (CAT). It has certain powers of civil court. The chairperson of the CAT is or has been or must be qualified to be a Judge of a High Court. Generally the members of CAT will hold office for a term of 5 years or until he enters 65 years, whichever is earlier. Civil courts will not have jurisdiction on the matters on which the Adjudicating officer is empowered. All appeals from the order of CAT will lie with the High Court, which must be filed within 60 days from the date of judgment. 

Offences under the IT Act (65-78, 84-A, 84-B, 84-C) 

IT Act criminalises certain acts like sending offensive messages, hacking, frauds, publication or transmitting of pornographic materials. The offences can be broadly divided into – acts against public interest, fraud, hacking and identity theft, offences and other statutory violations by intermediaries, offences related to obscenity. A list of offences under IT Act has been provided in a separate annexure. 

Responsibility of intermediaries and those who provide online platforms 

(Section 79, Information Technology Act) 

Under law, if a person’s legal rights are violated by another person (Wrongdoer), any persons who have incited, abetted, or aided the Wrongdoer in committing the violation may also be held responsible (even if it is to a lesser degree). If commission of a particular act is punishable under Indian law, it is likely that facilitating or providing the means to encourage such action may also be punishable. Usually the punishment under criminal law is fine and imprisonment for the directors or the persons in control of the entity’s affairs. 

Under the IT Act, an intermediary (Intermediary) is defined to include “any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, web hosting service providers, search engines, online payment sites, online-auction sites, online market places and cyber cafes.” 

Intermediaries (websites, social media networks, blogs and other platform owners) can potentially be held liable under provisions for abetment for illegal acts of third parties who have committed the act on the platform or by using the platform, even such actions have been taken without their knowledge – as per the IT Act, an intermediary must not knowingly publish, host or initiate transmission of unlawful information. The intermediary will be liable if: 

(i) it has knowingly aided or induced the commission of an unlawful act, or (ii) if after receiving actual knowledge, or being notified by a Government or its agency that information hosted on a computer resource regulated by the intermediary is being used to commit an unlawful act, it does not remove information expeditiously. 

In order to protect intermediaries from the risk of liability from illegal or unlawful activities on the internet where the intermediaries have not been actively involved, the IT Act was amended in 2008. 

An intermediary will not be liable in respect of third party information or data hosted by it under the following circumstances: 

1. The function of the intermediary is restricted to providing access to a system where third party  information is transmitted, stored or temporarily hosted, or 
2. When the intermediary does not a) initiate the transmission of the information, b) select the receiver of the information, and c) select or modify the information contained in the transmission, i.e. when the intermediary is merely a ‘blind’ carrier of information sent by a person to another person. 
3. The intermediary observes ‘due diligence’ – this is an interesting condition (discussed later). The rules for due diligence are prescribed in the Information Technology (Intermediaries Guidelines) Rules, 2011 (Intermediaries Rules) (discussed below). 

Due diligence as per the Intermediaries Rules 

Under the Intermediaries Rules, due diligence requires the intermediary to take the following steps: 

1) Appointment of Grievance Officers: 2) Publication of privacy policy and terms of use 

3) Duty to comply to remove offending content in case of takedown notices from private entities within 36 hours of receiving the request. It should preserve records pertaining to the notice for 90 days. 4) Duty to assist government agencies with information 5) Compliance with Court Orders 6) Duty to comply with regulatory orders to block access to websites 

The IT Act has created a body called the Computer Emergency Response Team (“CERT”), which is empowered to issue instructions for blocking of websites. Intermediaries are under an obligation to block access to websites on the instructions of the CERT as per a notification issued by the Central Government (DoT Notification) pursuant to the IT Act. The CERT is empowered to act on the directions of the following persons or entities (they can be broadly classified as governmental agencies or a court) (Authorized Complainants): 

Questions around electronic evidence and investigative powers of the police 

Are digital information or records acceptable as evidence in legal proceedings? The Information Technology Act, 2000 has incorporated certain changes to Indian evidence law to accommodate acceptance of electronic information and documents in digital format in the courts as evidence. Under Indian law, the electronic record includes “any data, record or data generated, any image or sound stored, received or sent in an electronic form or microfilm or computer generated micro fiche.” 

• How should electronic evidence be produced before the court? 

The most obvious idea that comes to mind is to present electronic evidence in its original form, that is, on the original device or on the storage medium which contains the information. For example, a cell-phone containing a call record, a hard disk, original CD records or the memory card which contains the relevant conversation. How can you produce these? When you produce the device itself, it is called primary evidence of electronic records. However, what happens when information is stored in a server or a machine? How can such information be presented before a court? How can one produce electronic records like email or information stored in a computer database or a server? 

In such circumstances, the document will have to be presented as ‘secondary evidence’. The Evidence Act lays down procedures for production and admissibility of the content of computer generated information (that is, secondary electronic evidence). As electronic records may be stored in huge servers which are hard to physically produce for examination in a court, the law permits production of computer generated electronic records by printing them on a paper, or storing recording or copying them in an optical or magnetic media, without production of the original electronic device. However, such documents will only be accepted if they meet certain standards (see Section 65B of the Evidence Act for more details) . 

Moreover, Courts will accept the above records only when they are certified (through an affidavit) by a competent officer / person who is responsible for managing or operating the relevant device. 

• Presumptions pertaining to electronic evidence 

Parties to a legal proceeding need to establish facts by providing necessary evidence. With respect to digital and electronic evidence, courts typically go by certain ‘presumptions’, that is, a default state of affairs. These default presumptions kick in if certain preliminary conditions are met. Unless the other side indicates reasons or facts to challenge the genuineness of a particular presumption of a court, the court proceeds with the presumption and assumes that state of facts to be true. 

Presumptions with respect to electronic evidence are mentioned in Sections 85A, 85B, 85C, 88A and 90A of Indian Evidence Act – these are largely intuitive and correspond to common-sense. You are advised to refer to these. 

Expert witness: When there is an apprehension of the documents being tampered or if the parties are disputing the identity, authenticity or contents of electronic records, the court may take expert opinion of a ‘cyber forensics expert’ into consideration – typically, the opinion of an Examiner of Electronic Evidence (‘examiners’ are appointed by the Central Government u/s 79-A of the IT Act) in matters involving information stored or transmitted by a computer resource, mobile phones, or in any electronic or digital form. 

• Power of police to search (Sec 80) 

Any police officer, not below the rank of Inspector or any other rank as notified by the Central or State Government can enter any premises for search and arrest without warrant any person who has reasonable suspected to have committed the offence, or about to commit an offence under this Act. 

Quiz on Cyber Law

1.) What section of the Information Technology Act, 2008 authorises digital signature? 

A.) Section 4 

B.) Sec on 5 

C.) Section 6 

D.) Section 7 

2.) What is the maximum fees prescribed under IT Act, 2008 for application of renewal of license? 

A.) 5,000 

B.) 8,000 

C.) 4,000 

D.) 2,000 

3.) What is the obligation on the Certifying authority regarding display of their license? 

A.) There is no explicit obligation to show license 

B.) The certifying authorities are required to carry a copy of their license at all times 

C.) The certifying authorities are required to display their license at a conspicuous place of the business premises 

D.) Every customer is to be given a copy of the license 

4.) What is the maximum term of imprisonment provided under the IT Act? 

A.) 10 years 

B.) 20 years 

C.) life imprisonment 

D.) the Act doesn’t prescribe imprisonment as a punishment 

5.) What is the maximum punishment prescribed under IT Act for a first conviction for transmitting obscene material in electronic form? 

A.) 3 years imprisonment and 5 lakhs fine 

B.) 5 years imprisonment and 5 lakhs fine 

C.) 3 years imprisonment and 7 lakhs fine 

D.) 2 years imprisonment and 5 lakhs fine 

6.) What section of the Information Technology Act, 2008 gives legal recognition to electronic records? 

A.) Section 14 

B.) Sec on 12 

C.) Section 9 

D.) Section 4 

7.) Which one of the following is not an e-governance project launched by the Indian Government? 

A.) FRIENDS 

B.) Gyandoot 

C.) YASH 

D.) Bhoomi 

8.) Which of the following Section of the IT Act was invalidated by the Supreme Court in 2015? 

A.) 66B 

B.) 67A 

C.) 66A 

D.) 66F 

9.) Which Section of the IT Act deals with cyberterrorism? 

A.) 66A 

B.) 66B 

C.) 66C 

D.) 66F 

10.) How many schedules are listed in the IT Act? 

A.) 4 

B.) 5 

C.) 6 

D.) 7 

To know and study more about Professional Misconduct for All India Bar Exam, please Click Here.

The post BarHacker: Important Pointers you need to know about IT Act appeared first on iPleaders.

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

How rapidly is the practice of law changing?

I want to share with you a story I came across today. It really shows how absurdly fast things are changing in the practice of law, all thanks to technology and its adoption in the legal system. 

And it probably gives us a hint about what future of lawyering looks like.

There is a lot to learn for many of us about how we can design sophisticated systems that breeze past old ways of doing things, 

The story opens like this: “I know it’s not very common but I’ve been practicing US law as a digital nomad for about three years now living mostly in Asia and Latin America.”

What kind of law can one practice in the USA while living in Asia? Certainly not litigation?

Oh no, this person is a full-time litigator! This story is all about how he manages to litigate in the USA while living mostly in other countries, only occasionally flying into the city where the matter is. According to him, he has to get back to the USA about 4-5 times a year. In 2016, he made about USD 425000 through his practice, in profits (not revenue), which is a very impressive figure.

According to him, everything he does is mostly on the internet. Obviously. Let’s get into the details.

Never meet clients.

The first rule is that he never meets his clients in person. He says that 98% of them have no problem with this. None of them knows that he is not even in the country, as long as he replies to emails promptly and calls in a timely manner. 

How does he find his clients?

Online, of course. He advertises online, especially on Google AdWords. Unlike in India, advertising on Google AdWords is not banned for lawyers. He also gets referral clients.

How do clients get in touch with him?

When he is working remotely in Asia, it is difficult for him to make direct calls on his cellphone due to time zone differences. So he uses a call answering service where his clients, as well as potential leads, can call. The service provider charges him around 90 cents per call, and write down brief messages for him. He can then call back at his convenience. 

He has multiple internet US phone numbers with Google Voice, Sonetel and Plivo. The cost of such services ranges from free to $1.99 a month. These look like any generic US phone number. 

He uses a $2 a month service to receive faxes. Faxes once received are scanned and emailed to him. He can send faxes at 10 cents a page via eFax. 

What about a physical address where you can receive documents? He has multiple virtual offices that cost $20-30 a month. These offices scan the documents sent to these virtual office addresses and email the same to him. He has to pay for the scans. On an average month, he has to spend about $50-75 for each virtual office including scans depending on how much work he is getting.

He also uses an internet mailing service to send mail from a US address. It costs slightly more than sending mails directly from US soil, but he says that it has been a very useful service and even if he lived in the US he would use it because it’s cheaper than hiring an assistant. 

Click Above

So for any client interacting with him, nothing looks out of the ordinary. They are calling US numbers, sending documents to US addresses, receiving snail mails from within the USA and even sending and receiving faxes like they would with any law firm. Except, they never meet the lawyer in person.

Wonderful.

I bet that saves time and energy for the lawyer and clients both. Not bad at all.

All that is fine, but how does he appear in court hearings?

Apparently, in the USA you can attend a court hearing over a call. Wow. That is just insane. I had no idea. Would we ever have that in India? Lawyers would definitely love that. 

In his own words: “… for court hearings I almost always can appear by telephone. Just the other night I did one where I was in Asia and the hearing was in the US. It’s easy to appear by phone usually and the Judge has no idea whether you are in Chicago or Baghdad.”

Another big challenge was doing depositions. He started by flying back for depositions. However, that soon changed. He began to hire other lawyers to do the depositions for him on a freelance basis. He pays anything from $250 to $600 per deposition, but this is rarely a problem because he makes around 11-12 thousand dollars per case. Most cases usually have no more than one deposition, and a lot of them don’t even have any).

According to him, the biggest problem that he can’t get around is mediations. He has to go back to the USA for the mediations. So he tries to bunch them together and schedule 1 or 2 months ahead so that he can fly in, do them one after another, and fly back to the tropical paradises where he prefers to live.

So how often does he have to fly back to the USA?

Usually, a set of cases takes him 15 months from the beginning to the end. In the first 6-7 months, he does not have to go back to the USA at all. For the last 8 months, though, he has to go back to the US every 4-8 weeks for a few days at a time. However, the flight costs do not bother him at all because he saves a lot of money by not having to pay rent in an expensive US city, or having to rent expensive real estate as office space! He does not like flying back to the USA, but since it’s no more than 5 times a year it has become tolerable for him.

So the bottom line is that he lives in a nice place in Asia for a fraction of the cost, and enjoys a significantly better quality of life than what he would have in the US. 

My observations

A lot of lawyers are very stuck up about having fancy offices, cars, assistants, a lot of juniors and what not. They feel that without these trappings you cannot build a real and successful law practice. The lawyer who posted this story on Reddit shattered this myth and showed how you can be frugal and build a very profitable practice with nifty use of technology, without even having to be in the same country.

Trappings do not create a great law firm. Getting a fancy chamber will not grow your practice much. You don’t need to drive a BMW to raise your rates.

A lot of lawyers need to rethink their business models. It may not be your dream to become a digital nomad, but I hope what this lawyer is doing makes you question some of the basic assumptions you have entertained about how to build a law practice.

How can you cut through the clutter? How can you cut wastage of time, energy, and other resources? How can you use technology better and integrate it into your practice to create more efficiency?

I want you to think about these things. 

You can read the story on Reddit here:

https://www.reddit.com/r/digitalnomad/comments/64p6wx/lawyer_digital_nomads/

What is your take away?

Do share with me what you take away from this story. Is there something you can implement? 

Do you want to build a profitable solo practice or grow your own law firm? Let’s talk about how.

If you want a supportive group of lawyers to work with, through many challenges of building a law practice, we have something for you at LawSikho. You can learn from the best, the people who have successfully built their own law firms! please check out our law practice management course here. I guarantee that it would help you to grow your practice faster, save time, and become a whole lot more organized about the growth and development of your practice.

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The post How Does this Lawyer Run a USD 425,000 Litigation Practice in the USA While Traveling Around the World? appeared first on iPleaders.