This article is written by Gaurav Raj Grover, a fifth-year law student at Lloyd Law College, Greater Noida. This article discusses the features of Vicarious Liability in India.

Introduction

Every person is liable for acts, the person commits and not liable for the acts done by others but in some situations when a person is liable for the acts of another person is known as vicarious liability. So, for this to happen there must be a specific kind of relationship between both the people and the act must be connected with the relationship. These relationships can be of a master and servant or principal and agent. 

Vicarious liability is the liability of a person for an act of another person because of their relationship with each other. For eg: Saurav is the driver of Gaurav, and Gaurav sent Saurav to drop his friend Suryash to the Airport. On their way, Saurav hits Mahesh because of his reckless driving. In this situation, Gaurav was not even in the car while the car hit Mahesh, but still, he was liable for the accident caused by Saurav. This is because of vicarious liability. 

So, vicarious liabilities only deal with the situation where the person is liable for some other person’s acts. It is considered as an exception to the general rule that the person is liable for his acts only. Vicarious liability is based on the principle of ‘qui facit per se per alium facit per se’, which means ‘He who does an act through another is deemed in law to do it himself’. 

Essentials of Vicarious Liability

The essentials of vicarious liability are:

1. There must be a certain type of relation between the parties. 
2. The wrongful act must be committed by another person. 
3. The wrongful act must happen during the course of employment. 

Relations in Vicarious Liability

So, this liability can only take place when one party is socially superior to another party and superior party shall be considered liable. Some examples of these relationships are:

• Master and Servant
• Owner and Independent Contractor
• Partners in Partnership Firm
• Principal and Agent
• Company and its Directors

Reasons for Vicarious Liability

The reasons behind holding the master liable for the actions of his servant are:

1. A servant is just an agent who is controlled and supervised by his employer. So, the servant works according to the master which means he works in the manner the master wants the work to be done. So, the liability for the actions of the servant must be of the master. 
2. The master always enjoys the profit derived from the efforts of the servant, so he must also bear the loss that occurred by the activity of the servant but only in the course of employment. 
3. The master is financially stable than that of a servant. So, the master is more suitable to pay for the damages caused by the tortious act of the servant. But the masters are allowed to take reasonable care and precautions to prevent himself from such situations. 

Scope of Employment

The actions of the employees related to the term of his employment are considered as the scope of employment. The scope changes through the requirements of the job and the number of people are required to do the job. There are situations where a worker is not working under the scope of employment. These include:

• Independent Contractor 

An independent contractor is a person doing work for someone else, these contractors are not considered as employees because they are not working in the scope of employment and are certainly not considered as employer’s liability. 

• Illegal Acts

Any illegal act is not under the scope of employment. So, any harm caused by the illegal act is mostly not considered as the employer’s liability. 

When an employee performs an activity that is neither directed nor controlled by the employer, the employee is not in the scope of employment. In this situation, if the employee engages in any wrongful tortious activity, the employer is not liable for the damages. 

For example, A is the driver of B, after dropping B to his office A left the office premises to meet his friend C with B’s car. A picked up C, they went for a drive and had an accident. Z was injured in the accident. In this situation, B is not liable for any damages because B had no idea of A’s plan and A was not in any course of employment given by B. 

Difference between Servant and Independent Contractor

A servant and independent contractors are quite similar as they both work for the employer, which means both of them can not decide their choice of work, the employer will assign the work to them but in the case of liability of tort, the master is liable for the wrongful act of the servant but he is not liable for the wrongful act of the independent contractor because the servant is engaged under the contract of services while the independent contractor is engaged under the contract for services. 

The master is liable in the case of a servant because the servant commits the wrongful act in his course of employment. So, the wrongful act of the servant is considered as the act of the master. Thus, the master is liable vicariously for the wrong done of the servant. But in the end, the plaintiff has the choice to take action against either or both of them. The liability of master and servant is both joint and several as they are considered joint tortfeasors. 

For example, A has a company and all the people working in his company are his servants as A has the right to control and supervise the work of the people working in his company. 

While the work of an independent contractor can not be controlled by the master. The master can only provide the type and duration of the work to the independent contractor but can not control the process he uses during the work. An independent contractor himself chooses the manner in which the work is to be done.

For example, all the third party workers who work on a daily basis on contracts, the taxi drivers as the person taking a cab is not liable for an accident that occurred during the ride but the person will be liable when he is in a car with his driver. 

A has a shop, one day there was something wrong with the A.C., A called a mechanic B to repair the A.C. while B is working for A but it doesn’t mean that A will be liable for B’s wrongdoings as in this case B is an independent contractor, not a servant because A can only tell B what to do but B himself will figure out how to do that specific work. 

Vicarious Liability in Medical Care

For any wrongdoing caused by the employee in any medical institution, the hospital or the doctor is vicariously liable for the damages. The employees include all the nurses, technicians, physicians, lab assistants, administrative department and other staff members. 

Vicarious liability helps in improving the conditions of hospitals as the hospital is liable for all the staff. So, the hospital or any medical institution focuses on proper qualifications and credentials for the employees to perform their job but this doesn’t work for a healthcare provider who is an independent contractor of the hospital. 

For example, A had surgery at XYZ hospital and Doctor Who performed the surgery. The surgery was successful but Doctor Who forgot his ring inside A’s stomach. Now, in this case, Doctor Who is liable for negligence but A can sue both XYZ hospital as well as Doctor Who as the hospital is liable for the actions of the doctors. 

Types of Vicarious Liability

When some person is liable for damages caused by the other person because there was certain control, ownership, or direction involved, then the liability is known as vicarious liability. 

Principal Liability

When a person allows another person to use his vehicle to perform a task for the owner and while doing the task, the person causes damages or injury through negligence, in this case, the owner is liable for the damages through vicarious liability. 

For example, A has a recent surgery and was on complete bed rest, he asked B to complete his insurance work by sending the papers to the company, A lends his car to B, during the drive, B had an accident because of recklessness, in this case, A is liable for B’s accident. 

In another situation, after completing A’s work B used his car for her personal use and met an accident during the course of her work, in this situation A is not liable for B’s accident. 

This shows that the course of employment of the owner is necessary. 

Parental Liability

In any case, when a child creates damage by taking advantage of the situation created by their parents, the parents are liable for the damages. The situations can be allowing a child to drive, or leaving a loaded weapon in a child’s reach. In the lack of parental supervision, the parents are vicariously liable for their child’s negligence. 

For example, A is the mother of 10-year-old B, while performing the daily chores she was not able to keep an eye on B and B damaged the car of C. In this case, A is vicariously liable for B’s actions as B is the son of A and she has to keep an eye on B’s actions. 

Situations in which the Master is Liable

• When the wrongdoing arrived from a natural consequence of an act of servant. 

When the servant works on the instructions of his master, then the master is liable for all the damages arriving out of the work of the servant. 

• When the wrongdoing arrived from the negligence of the servant.

For example, B works as a house help for A, B was cleaning A’s house and forgot to close the door which resulted in the escape of their dog, the dog bit the son, A was liable for all the damages caused by B’s negligence. 

• When the wrongdoing through the mistake in execution from the lawful authority.

For example, A is the guard of XYZ bank and he is allowed to shoot in case of emergency. One day during the transfer of the cash, B was entering with the people who were transferring the cash in the bank, A in the suspicion of B as a dacoit shot him and caused his death. In this case, the bank is vicariously liable for A’s actions. 

• When the wrongdoing happened through the servant’s fraudulent act.

For example, A works in an insurance company, B went to the company to open insurance, A takes from B and creates a policy for his wife. In this case, the insurance company is liable for A’s fraudulent act. 

• When the servant wilfully committed the wrong to hurt the master. 

Every wrong act of servant which is in the course of employment either willful, reckless, or improper is liable for the master. For example, when a waiter hurts the customer for being rude to him, the waiter, as well as the hotel, is liable for the waiter’s negligence. The hotel is liable under vicarious liability. 

Exceptions

• When the servant is under a statutory duty which he can not delegate, the master is not liable.
• When there is a case where the servant is involved with the withdrawal of support from the neighboring land, the master is not liable.
• When situations involve very hazardous acts, the master is not liable.
• When situations involve escaping from the fire, the master is not liable.
• When situations using the highways, the master is not liable. 

Conclusion

Vicarious liability deals with only those cases when one person is liable for the actions of another person. And the liable person must be superior to the other person. The person who commits wrong must be in the course of employment. The course of employment is essential for vicarious liability. 

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 General facts you must know about Vicarious Liability appeared first on iPleaders.

AIBE: Companies Act, Strengthen and prepare your concepts on Companies Act by solving an exhaustive quiz, if you’re preparing for Bar Exam.

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Quiz on Companies Act- 1 

1.)As per the Companies Act, a body corporate or corporation does not include which of the following? 

1. A company incorporated in Maharashtra 
2. A company incorporated outside India 
3. A corporation sole 
4. A co-operative society 

A.) Both (1) and (2) 

B.) Both (1) and (3) 

C.) Both (2) and (4) 

D.) Both (3) and (4) 

2.)Any security which has the character of more than one type of security, including their derivatives is known as a: 

A.) Hybrid security 

B.) Debenture 

C.) Preferred Security 

D.) Participating Security 

3.) An industrial company which has accumulated losses in any financial year equal to fifty per cent, or more of its average net worth (of the past four years)or has failed to repay its debts in three consecutive quarters on demand made by a creditor is known as – 

A.) Defunct Industrial Company 

B.) Bankrupt Industrial Company 

C.) Sick Industrial Company 

D.) Indebted Industrial Company 

4.) Company XYZ is a private company, which is a subsidiary of a public company, and has a paid up capital of 8 lakh rupees with a total number of 65 members (not including those in the employment of the company). This makes XYZ a: 

A.) Private Company 

B.) Listed Company 

C.) Limited Company 

D.) Public Company 

5.) The Company Law Board gave its decision regarding a certain matter involving A and B in January 2013, in favor of B. A, aggrieved by the same, wants to appeal against the order in February 2013.Will his appeal be sustained? 

A.) No, one can’t appeal against the decision of the Company Law Board 

B.) Yes, if A is aggrieved, he can appeal against the decision to the High Court 

C.) No, since the limitation period has expired 

https://www.lawsikho.com/mock_tests/11781/question_paper 1/5 

11/6/2017 LawSikho 

D.) He can appeal to the National Company Law Tribunal 

6.)As per the Companies Act, the maximum number of people who can form a company, association or partnership for carrying on the business of banking (for an unregistered company) is- 

A.) 10 

B.) 15 

C.) 20 

D.) 35 

7.) 

The Memorandum of Association of a Company should be in one of the forms as prescribed in- 

A.) Schedule I, Tables A,B,C 

B.) Schedule II, Tables F,G,H, I 

C.) Schedule I, Tables B,C,D,E 

D.) Schedule III, Tables J,K,L 

8.) The Memorandum of Association of a Company may be altered in which of the following cases- 

A.) to carry on its business more economically or more efficiently 

B.) to attain its main purpose by new or improved means 

C.) to enlarge or change the local area of its operations 

D.) All of the above 

9.) Who is authorized to make a certified copy of the order of alteration of Memorandum of Association and what is the limitation period for the registry of the alteration? 

A.) Board of Directors; 60 days 

B.) Council of Company Secretaries; 90 days 

C.) Registrar of Companies; 90 days 

D.) Director and Additional Director; 60 days 

10.) Section 25 talks about the circumstances where a charitable or other company can drop ‘limited’ from their name. In which of the following cases can this be achieved? 

1. The company is formed as a limited company for promoting commerce, art, science, religion, charity or any other useful object 
2. The company intends to apply its profits, if any, or other income in promoting its objects, and to prohibit the payment of any dividend to its members 

iii. There is a shuffle in the Board of Directors and the whole management is reconstituted. 

A.) Both (i) and (iii) 

B.) Both (i) and (ii) 

C.) Only (iii) 

D.) Both (ii) and (iii) 

11.) Which of the following should be in the prescribed format- printed, divided into paragraphs numbered consecutively, and be signed by each subscriber: 

A.) Memorandum of Association 

B.) Articles of Association 

C.) Both (a) and (b) 

D.) None of the above 

12.) A certificate of incorporation given by the Registrar in respect of any association shall be ________ evidence that all the requirements of this Act have been complied with in respect of registration and matters precedent and incidental thereto, and that the association is a company authorized to be registered and duly registered under this Act. 

A.) supporting 

B.) proof 

C.) compelling 

D.) conclusive 

13.) Which of the following is the most apt definition of a member of a company? 

A.) The subscribers of the memorandum of a company shall be deemed to have agreed to become members of the company, and on its registration, shall be entered as members in its register of members 

B.) Every other person who agrees in writing to become a member of a company and whose name is entered in its register of members, shall be a member of the company 

C.) Every person holding equity share capital of company and whose name is entered as beneficial owner in the records of the depository shall be deemed to be a member of the concerned company 

D.) All of the above 

14.) When a private company does not comply with provisions in its Articles of Association, then which of the following is the most likely consequence? 

A.) The company shall cease to be entitled to the privileges and exemptions conferred on private companies 

B.) The company shall be treated like a public company 

C.) The company becomes defunct 

D.) The company is sued by the Registrar of Companies for the default 

15.) The minimum percentage of paid up share capital of a private company that is to be held by one or more bodies corporate for it to be treated as a deemed public company (under section 43 A) is- 

A.) 10% 

B.) 25% 

C.) 50% 

D.) 12.5% 

16.) LMN is a public company and its has 7 members- A, B, C, D, E, F and G. The company was started in 2004 and in 2006, F, E and G left the company. The company continued to function somehow with A, B, C and D as members till 2008, and they were doing reasonably well. Post 2008, the company’s turnover decreased and it started taking loans to meet its requirements. Who all will be liable for the debts of the company? 

A.) All the members- A,B,C,D,E,F,G 

B.) Only E, F and G because the condition of the company worsened after they left 

C.) A, B, C and D, because they continued to function even after some of the members left 

D.) The Board of Directors 

17.) Whenever a company having a share capital makes any allotment of its shares, the company shall, within thirty days- 

A.) File a return of the allotments with the Registrar 

B.) Distribute money to the shareholders 

C.) File a return with the Chairman of the Company 

D.) Issue shares at a discount 

18.) XYZ is company with ZZZ as its subsidiary. Is it possible for ZZZ to buy shares of XYZ? 

A.) Yes, there is no problem 

B.) No, a subsidiary cannot buy the shares of the holding company 

C.) Yes, such a transaction requires a special resolution 

D.) No, the transaction will require a special resolution and government approval 

19.) True or False: The shares or debentures or interests of any member in a company are immovable property and non-transferable in nature. 

A.) True, they are immovable property and non-transferable 

B.) True, they are immovable, however, they are transferable 

C.) False, they are both movable and transferable 

D.) True, they are non-transferable, but they are movable 

20.) The two kinds of share capital are: 

A.) Preference share capital and Interest share capital 

B.) Equity and debentures 

C.) Provident share capital and Equity share capital 

D.) Equity share capital and Preference share capital 

Answer Key on Companies Act- 1 

1.) D 2.) A 3.) C 4.) D 5.) B 6.) A 7.) C 8.) D 9.) C 10.) B 11.) C 12.) D 13.) D 14.) A 15.) B 16.) C 17.) A 18.) B 19.) C 20.) D 

Quiz on Companies Act- 2 

1.) One cannot be appointed the Debenture Trustee of a company if he- 

A.) beneficially holds shares in the company 

B.) is beneficially entitled to moneys which are to be paid by the company to the debenture trustee 

C.) has entered into any guarantee in respect of principal debts secured by the debentures or interest thereon. 

D.) All of the above 

2.)A condition contained in any debentures or in any deed for securing any debentures, whether issued or executed before or after the commencement of the Companies Act, shall not be invalid by reason only that thereby, the debentures are made irredeemable or redeemable only on the happening of a contingency, however remote, or on the expiration of a period, however long. This describes- 

A.) Perpetual Debentures 

B.) Secured Debentures 

C.) Redeemable Debentures 

D.) Convertible Debentures 

3.) Who keeps the register of charges of each company, and maintains an index for the same? 

A.) Chairman of the company 

B.) Director of the company 

C.) HR department of the company 

D.) Registrar of companies 

4.) A company shall have a registered office to which all communications and notices may be addressed – 

A.) From the day it begins to carry on business 

B.) From the thirtieth day after its date of incorporation 

C.) Either- whichever of the above is earlier 

D.) Either- whichever of the above is later 

5.) What is the maximum time frame within which every company having a share capital must file a return with the Registrar? 

A.) within sixty days from the day on which each of the annual general meetings is held 

B.) within thirty days from the day on which each of the annual general meetings is held 

C.) within six months from the day on which each of the annual general meetings is held 

D.) within three months from the day on which each of the annual general meetings is held 

6.)Match the following (use the Companies Bare Act for this)- 

1. Statutory meeting I. Within 15 months 
2. Extraordinary General Meeting II.Between 1-6 months 

iii.Annual General Meeting III. On requisition 

A.) (i-I) (ii-II) (iii-III) 

B.) (i-II) (ii-III) (iii-I) 

C.) (i-III) (ii-II) (iii-I) 

D.) None of the above 

7.) As a general rule, dividends are only to be paid out of: 

A.) Budget 

B.) Expenses 

C.) Profits 

D.) Loans 

8.) Every company is required to keep at its registered office: 

A.) Books of Accounts 

B.) Register of Charges 

C.) None of the above 

D.) Both of the above 

9.)A person shall not be qualified for appointment as auditor of a company unless he is a _____________. 

A.) Chartered Accountant 

B.) Graduate 

C.) Economist 

D.) Lawyer 

10.) Alpha Beta Gamma is a public company with two thousand shareholders and paid up capital of 7 crore rupees. The minimum number of directors that the company should have is- 

A.) Three 

B.) One 

C.) Four 

D.) Six 

11.) At the Annual General Meeting of a public company, one third of the directors are required to retire by rotation. What is the criterion for deciding the same? 

A.) Seniority 

B.) Drawing of lots 

C.) both a and b 

D.) None of the above 

12.) What is the time period till the completion of which an Additional Director of a company continues to hold office? 

A.) Till one year 

B.) Till the next Annual General Meeting of the company 

C.) Till one of the directors retire by rotation 

D.) Out of the above, whichever takes place before 

13.) Which of the following is a not true statement about Director Identification Number? 

A.) Every individual, intending to be appointed the Director of a company should make an application to the Government for an Identification Number 

B.) An individual can have up to five Director Identification Numbers at a time, not more 

C.) A Director should intimate his Director Identification Number to the concerned company/companies 

D.) The Director Identification Number should be intimated to the Registrar 

14.) Which one of the following is eligible to be appointed as the Managing Director of a company? 

A.) A person who is an undischarged insolvent 

B.) A person who suspends payments 

C.) A person has been employed in the same company for 10 years or more 

D.) He has been convicted of an offence of moral turpitude 

15.) As per the Companies Act, at one time, a person cannot hold the office of a Director for more than ________ companies. 

A.) 10 

B.) 20 

C.) 5 

D.) 2 

16.) In the case of every company, a meeting of its Board of directors shall be held at least once in every ______ months and at least _______ such meetings shall be held in every year. 

A.) Six, Two 

B.) Four, Three 

C.) Three, Five 

D.) Three, Four 

17.) According to section 425 of the Companies Act, winding up of a company may be either _________ or ____________. 

A.) Voluntary; by the Court 

B.) Involuntary; by the Board of Directors 

C.) Due to insolvency; Voluntary 

D.) By the Tribunal; by force 

18.) In which of the following cases will a company not be wound up by the Tribunal, as under section 433 of the Companies Act? 

A.) Company is unable to pay its debts 

B.) If the number of members of a public company is below 10 

C.) If the Tribunal is of the opinion that the company should be wound up 

D.) If the company defaults in holding the Statutory Meeting 

19.) Which of the following statements are true, in the context of winding up of companies? 

A.) If, in the case of a winding up commenced after the commencement of this Act, the liquidator is at any time of opinion that the company will not be able to pay its debts in full within the period stated in the declaration, or that period has expired without the debts having been paid in full, he shall forthwith summon a meeting of the creditors, and shall lay before the meeting a statement of the assets and liabilities of the company. 

B.) In the event of the winding up continuing for more than one year, the liquidator shall call a general meeting of the company at the end of the first year from the commencement of the winding up, and at the end of each succeeding year 

C.) As soon as the affairs of the company are fully wound up, the liquidator shall make up an account of the winding up, showing how the winding up has been conducted and the property of the company has been disposed of 

D.) All of the above 

20.) A company having a permanent paid-up or nominal share capital of fixed amount divided into shares, also of fixed amount, or held and transferable as stock, or divided and held partly in the one way and partly in the other, and formed on the principle of having for its members the holders of those shares or that stock, and no other persons is known as a ___________ 

A.) Limited Stock Company 

B.) Joint Stock Company 

C.) Transferrable Stock Company 

D.) None of the above 

21.) According to the Companies Act, a Government company means any company in which not less than _____________ of the paid-up share capital is held by the Central Government, or by any State Government or Governments, or partly by the Central Government and partly by one or more State Governments and includes a company which is a subsidiary of a Government company as thus defined. 

A.) 25% 

B.) 50% 

C.) 51% 

D.) 75% 

Answers Quiz on Companies Act- 2 

1.) D 2.) A 3.) D 4.) C 5.) A 6.) B 7.) C 8.) D 9.) A 10.) A 11.) C 12.) B 13.) B 14.) C 15.) B 16.) D 17.) A 18.) B 19.) D 20.) B 21.) C 

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 AIBE: Test your Knowledge on Companies Act appeared first on iPleaders.

This article is written by Rajeshkumar Rajendran, pursuing a Certificate Course in Arbitration: Strategy, Procedure and Drafting from Lawsikho.com. Here he discusses “Which Method is More Effective: Arbitration or Litigation”

Introduction

Arbitration is legally defined as a consensual, private, dispute resolution technique, governed by statute, by which a neutral tribunal, acting fairly and judicially, makes a decision which binds the parties (but only the parties). 

Due to the globalization, the character of business means trade frequently cross the borders. When the parties from various countries come across disputes, then they prefer a neutral forum rather than approaching the court in either of the parties’ national courts. Hence, Arbitration is quite a suitable tool to resolve the disputes, especially of cross border nature. Perse, the popularity of Arbitration grows faster in the modern economy.

Dispute Resolution Clause

When negotiating a dispute resolution clause in a contract, the parties should also consider whether arbitration or litigation would be more appropriate.  An arbitration clause will not only decide on jurisdiction (by designating the “seat” or designated city/country of the arbitration) but also the applicable rules.  These may be the rules of an institution (e.g. the LCIA Arbitration Rules) or the legislation of the applicable seat (e.g. for India, this would be the Arbitration Act 1996).

Absence of Arbitration Provision

Even there is no provision in the agreement or contract, which demands the parties to arbitrate instead of proceeding with litigation to resolve any dispute; one can propose to commence the arbitration by sending a written demand to the other party. In case other parties consider that the dispute can be resolved through arbitration, proceedings can begin immediately.

Disputes may not be Arbitrable 

Arbitration can be voluntary by which the parties have already agreed to go ahead within the case of any dispute or it can be a mandatory one which is required by law. In most of the cases, arbitration takes place because the parties have inserted the provision for arbitration in case of any disputes “arising under or related to” the contract. However, arbitration is not possible when there are claims relating to Health and life, patrimonial property entitlements, family law, non-property entitlements of intellectual property, the disaffection of property in the public domain, insolvency, rental contracts for accommodation and other litigation in respect of which the law delegates the exclusive jurisdiction of the courts. Further, Disputes may not be arbitrable if they encompass a resolution which may need to be enforceable against individuals other than the parties e.g. a dispute over enrollment in a public register.

If the relevant contract does not contain a clause that obliges the parties to arbitrate instead of approaching the courts to resolve any disputes that arise, a party to a dispute can still request arbitration by sending a written demand to the other. If the opposition believes that the dispute can be resolved through arbitration, proceedings can begin immediately.

Benefits of Arbitration over Litigation

One can find a number of benefits of arbitration over litigation. Nevertheless, each and every aspect have to be carefully analysed. The significant factors need to be considered are as follows:

1. No precedent – Since the arbitration process is confidential, it will not provide any binding precedent on the parties. If one party wish to opt for final and binding ruling litigation is the better option.

2. Summary determination – Even though the tribunal has the capability to conclude the defences and claims summarily, practically the tribunal wouldn’t go for summary determination.

3. Multiparty disputes – The clause pertaining to arbitration inserted in the agreement provides the right to arbitrate and hence it restricts the joining the third parties unless all the parties, and the third party, agree.
     
4. Finality – the grounds for challenging and appealing the award is restricted to limited grounds when compared with litigation. Hence, lengthy appeals are almost impossible in arbitration.

5. Delays – Most of the time arbitration process is speedy when compared with litigation and the arbitration can also face extensive delays when any party intentionally not abide by deadlines and try to postpone the proceedings.

6. Cost – In litigation, the parties have to pay the fee, but the cost of the judge and the services can be obtained freely. On the Contrary, in arbitration, the parties had to pay the tribunal fee and the administrative costs and sometimes it can be a considerable amount. Hence parties had to go for procedural arbitration so that it can be efficient and it has to be inserted in the agreement itself. 

7. Neutrality – The parties in dispute can ensure that the hearing location, the seat of arbitration and the structure of the tribunal are neutral. It will attract most of the commercial parties mainly when they are suspicious about the disputes referred in the home courts of another party.

8. Privacy – the hearings will be held generally in the private and hence the proceedings are always kept confidential.

9. Expertise – the parties have the freedom to choose the arbitrators and tribunal with the appropriate expertise to deal with the said dispute.

10. Procedural flexibility – Nowadays the commercial parties wish to choose the institutional arbitration, since it is easy to adopt the set standard rules and procedures already framed by the institution.
      
11. Certainty – one has to consider the exclusive jurisdiction clause as a means of effectiveness pertaining to the arbitration clause, it will give confidence to the parties.
      
12. Enforcement – the significant factor deciding in the indulgence of arbitration is ease of enforcement. Most of the countries have signed the New York Convention (NYC) and there are very limited grounds to refuse the enforcement of arbitral award which is made outside the country. There is no mutual harmony between Russia and the United Kingdom and hence the court judgments cannot be enforced reciprocally. But since both the countries are a member state of NYC, both the countries have to recognize the arbitral award made in other countries (i.e arbitral award made in Russia should be recognized in the United Kingdom.

New York Convention (NYC)

The New York Convention was established as a result of the initiative to replace the Geneva treaties came from the International Chamber of Commerce (ICC), in the process of modernizing the law of international trade. The aim of the convention was there should not be any discrimination between foreign and non-domestic arbitral awards. When it comes to arbitration the first question raised was about the enforcement of the award. India is one of a member state of NYC with respect to the acknowledgement and implementation of Foreign Awards. If a binding award was received from an NYC member state who has signed the convention and the award has been notified as a ‘convention country’ by India, then it can be enforced in India. 

The Qatar Court of Cassation authorized that member states of the NYC are bound by its conditions. When the member states were requested to implement the foreign award that laid out in NYC the member states may not execute sterner provisions.

A controversial conclusion reached by Qatar’s Court of Cassation and it has emphasized the obligation of the arbitral award to be delivered in the name of His Highness The Emir of Qatar. The ruling published on Petition No. 64/2012 on 12 June 2012 keep back an arbitral award decreed under the Qatar International Center for Conciliation and Arbitration (QICCA). In addition, the court has provided their determination that any judgement or decision of the tribunal should be bestowed in the name of His Highness The Emir of Qatar; or else, it shall be validated as null and void.

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Arbitrators Are Not Judges

Since the arbitration process follows the contractual arrangement exists between the parties, the awards are not mostly subjected to any examination than the court cases which are mostly subjected to appeal. Nevertheless, arbitrators have to answer to the court in case of any claims related to corruption, misconduct and fraud. In case of more certainty was expected by the parties then they have to approach the panel with multiple arbitrators since the multiple arbitrator’s panels can provide good quality decision making compared to the juries and judges.

Judges are specialists at the court system, including prehearing exercises and the way to manage a courtroom. The Court judges can conduct various general cases, both civil and criminal cases, while very less percentage of those cases goes for trial.  Out of the mere proportion of cases will go to trial, maximum cases go to a jury in order to resolve the factual matters. Sometimes though the judges are retired they wish to perform as a private judge. Contrarily, arbitrators are exclusively selected by the parties, mostly based on their specialist areas and their experience. Always, Arbitrators take an oath that they will act fairly and impartially and they used to apply the law as the judges do. Yet, at the offset arbitrators explain their business needs with the parties. Dislike the restrictive court process, arbitrators are free to implement the inventive solutions put forth by the parties. Even the arbitrators can involve the parties while scheduling the arbitration process.

Almost all the arbitrators are specialist in specific areas of law and have involvement in specific trade segments. It is true in most of the cases related to technology. In spite of the fact that most arbitrators have practiced law as trial attorneys, and they are trained to manage the arbitration, their vital centre isn’t an on-court strategy; or maybe, arbitrators centre their consideration to the substantive law and the actualities of the debate. The parties anticipate the arbitrators to utilize their legitimate and industry foundation to create reasonable, fair and business-practical choices. As well, arbitrators play a vital part in worldwide cases that amplify past the bounds of a single court framework.

To conclude, arbitrators are having a close relationship with the parties than the judges. Usually, Arbitrators are the team of professionals, appointed by disputed parties to provide a fair, proper and practical solution to the disputes, where the dispute couldn’t be resolved by negotiation.  

Reform of the Indian Arbitration and Conciliation Act

In order to improve confidence in arbitration, even the Indian Government has brought a lot of significant developments to the Indian arbitration law which is contemplated as an essential step forward towards promoting foreign investments in India. Some of the significant amendments are as follows:

1. According to Section 29A the tribunal has to provide the award within 12 months and if the parties want to extend further then they should agree mutually and even the arbitrator fee is reduced by five per cent for the extended duration. Similarly, as per section 29B the fast-track arbitration procedure was introduced for those who want to conclude the arbitration quickly.

2. Based on the modification made in sections from 9 and 17 of the ACT, now the tribunal possesses equivalent power as courts and they can entertain interim measures.

3. According to amendments made in section 36, the arbitral award can be set aside in case of a stay of execution. 

Availability of Number of Judges

Statics report reveals that the number of judges currently serving in the USA and UK is 102 and 56 judges per million people. Conversely, in India, there are only 18 Judges available per million people wherein the total population is over 1.34 Billion in India. From the figures, one can understand the reason for the delay in resolving disputes vide litigation in India.

Drawbacks of Arbitration

Sometime Arbitration clauses provide room for a party to enjoy the sophistication to abuse prosperous party. These tactics are being used by companies to prevent consumers from operating their rights. If one suspects that the arbitration process is inconsistent with truth or unfair then the other party cannot approach litigation and request the court to assess it unless one can prove the actual fraud.

Conclusion

Perhaps after skimming all of the above ones would judge that arbitration is the better dispute resolution method, however, that is not certainly the case. Commonly arbitration may be the better choice if the agreement you wish to resolve is so technical that one would prefer to have (an) experienced arbitrator(s) determine it in the case of a dispute. Also, arbitration may be the better route if the value of said agreement justifies paying the significant arbitration costs. Based on the current situation about the number of judges available in India and the number of cases pending in courts, one can opt for arbitration to resolve the dispute reasonably quicker. On the other hand, if you wish to enter a standard type of agreement (for example, an annual lease agreement), then opting litigation could be the better option.

References

1. Find Law 2018, Mediation vs Arbitration, accessed 1 September 2019, https://adr.findlaw.com/mediation/mediation-vs-arbitration-vs-litigation-whats-the-difference.html
2. Lexology 2019, Library, accessed 2 September 2019, https://www.lexology.com/library/detail.aspx?g=a947e053-535b-417c-8498-2e8cc9c6cd13 
3. Longmores 2015, Litigation, Mediation and Arbitration: what is the difference, accessed 1 September 2019, https://www.longmores.law/articles/litigation-arbitration-mediation-what-is-the-difference/ 
4. Hirschlerlaw 2018, difference between Litigation, Mediation and Arbitration, accessed 4 September 2019, https://www.hirschlerlaw.com/construction-law-blog/so-what-is-the-difference-between-mediation-arbitration-and-litigation 
5. Griffin 2010, dispute-resolution-resort-litigation-arbitration, accessed 3 September 2019, https://www.griffin.law/dispute-resolution-resort-litigation-arbitration/ 
6. The balance smb 2017, arbitration-vs-litigation-what-is-the-difference, accessed 4 September 2019, https://www.thebalancesmb.com/arbitration-vs-litigation-what-is-the-difference-398747 
7. New York convention 1999, Brief about NYC, accessed 4 September 2019, http://www.newyorkconvention.org/in+brief 
8. Justica 2018, trials-litigation: alternatives-to-court, accessed 5 September 2019, https://www.justia.com/trials-litigation/alternatives-to-court/arbitration 
9. Indian Kanoon 2012, Number of Judges in Indian Courts, accessed 2 September 2019, https://indiankanoon.org/doc/26596259/?type=print 
10. SVAMC 2016, Arbitration are not judges, accessed 3 September 2019, https://svamc.org/arbitrators-are-not-judges/
11. Kluwer arbitration 2016, Controversial Ruling, accessed 1 September 2019, http://arbitrationblog.kluwerarbitration.com/2013/09/23/controversial-ruling-of-the-qatari-court-of-cassation-regarding-arbitral-awards/ 
12. Norton Rose Fulbright 2019, Reform of Arbitration Act, accessed 1 September 2019, https://www.nortonrosefulbright.com/en/knowledge/publications/5b8ffbc0/reform-of-the-indian-arbitration-and-conciliation-act 

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 Kanishk Gambhir, pursuing a Diploma in M&A, Institutional Finance and Investment Laws (PE and VC transactions) from  Lawsikho.com. Here he discusses “How are Virtual Data Rooms used and what do these contain?”.

Introduction

During investments transactions, companies are sometimes forced to disclose the non-public information and documents to the future investors to provide them with information so that they are able to verify the information provided by the companies to do their due diligence before investing their financial resources.

Due diligence is a form of research conducted by the investors or prospective joint venture partners to ensure that they are getting exactly what they agreed to acquire.

This process of due diligence includes a thorough check on the human resources, financial position, all past, present and future, legal compliances etc. This process of due diligence generally requires a physical transfer of all required copies of documents from the seller to the buyer so that the buyer can do a thorough analysis. This process of the transfer of the documents is very complex, time-consuming and expensive. But as we live in an era where technology is flourishing every day, where everything is done online. So for this problem of transfer of physical copies as well. a simpler and cheaper solution in the form of Virtual Data Room is available. 

Virtual Data Room

Virtual Data Room also called a VDR, is an online depository of data which is generally used for storage as well as sharing of documents. It is very similar to Google Drive or any other cloud data storing services with a few but necessary changes like more focus towards the corporate user as well as more security along with a better interface to handle huge amounts of data which is very complex and sensitive. They are the virtual replacements of documents rooms.

These virtual rooms allow the user to share the link to particular documents as required to that particular user so that they can determine what data to share with whom as well as keep a thorough track of which documents were shared.  

Some of the big players in the business of VDR are iDeals, Merrill corporations, Intralinks, Brainloop, box etc.

What does these Contain?

These are used to secure and store the highly sensitive and critical data of the companies. These documents generally have high valuation as the might contain not only information related to tax, finance, legal but also items like trade secrets or copyrighted work which might destroy the company if they were leaked. So, these VDRs provide a secure, convenient and confidential place to place all your data so that it is easily accessible to the people the owner of VDR wants to share it with, which is generally to the investors. 

Further, these VDRs can easily be edited as per the requirements and specificity of each company for each transaction. These VDRs usually have very strong data encryption which is aimed at prevention of theft, misuse or unauthorised access by individuals. They are required to be highly secured due to the sensitivity and importance of the documents. Over the years, the user interface in these VDRs have been improved leaps and bounds as a user can easily arrange, bookmark, search or make reports in the VDRs itself which increases the work efficiency as well as effectiveness.

How are Virtual Data Rooms used?

These data rooms can be used for anything including but not limited to Merger and acquisition due diligence, fundraising, IPOs, Strategic Partnerships, Joint ventures, Audits, IP management, Board communications etc. Some examples of usage of the VDRs in various data rooms are given below:

M & A Transactions, Joint-ventures, Strategic Partnerships 

These can possibly be the most common use of the VDRs as mergers and acquisitions involve huge amount of documents which are highly confidential. But as a part of the due diligence process, they are required. So storage of these in a secured place with easy and reliable access is a function that is provided by the VDRs. The documents are exchanged without leaving the sellers office with a click. So, this makes these transactions easier, cheaper and efficient.  Further, this helps in crossing the geographical boundaries much more easily which will lead to more beneficial partnerships between separate organisations which were earlier barred due to geographical borders.

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Court Proceedings

Court are generally synonymous with huge amounts of paper works. So with the VDRs large volumes of the documents can be easily dealt with a further advantage of making it impossible for such documents to be stolen or lost. Further, it would be more advantageous in a more globalised world involving international legal teams and placement of companies in different countries.  

Initial Public Offerings 

IPO involves huge amount of paperwork due to compliance with additional laws, rules and regulations as well as it involves huge number of people like lawyers, banks etc. So, with VDRs this process becomes much more simple and easy as it all could be done with a simple click. 

Furthermore, these VDRs can easily be used in Board communications, IP managements, Audits due to easier and confidential sharing of data. 

Advantages and Disadvantages of Virtual Data Rooms

Even though these VDRs are the present and future of data sharing but they are not without there disadvantages. The various advantages and a few disadvantages which they have been given below.

ADVANTAGES

To Buyer (companies, investors etc.) / Authorities 

1. Cost Saving – These VDRs save huge amounts of cost by reducing the printing, transfer and storage of data.
2. Time-Saving – Similarly, These VDRs save time as a time to both transfers as well as going through the data to do the required work is reduced due to easier ways to understand comprehend the data in computers than manually.
3. Comfort – This data can be accessed by them anyplace, anytime once the link is provided to them and the need for carrying the files is gone.
4. Transparency – There is no scope of tampering of documents as software can easily detect whether these documents were edited.
5. Fair Playing Field – All the competitors have access to similar data and easier way to go through it, so unfair advantage to the top companies of the huge workforce is reduced to a certain extent.
6. More organised Data – The data is clearly organised and data can be more easily searched well as used and understood as compared to the manual process of data due diligence. 

To Seller company

1. Simplicity – This process of putting the data online is much more similar then copying and sending all the required documents to the buyer.
2. Ease of Setup – These VDRs can easily be set up with few clicks and it is very easier to understand. 
3. Cost Savings –  Seller, too, saves huge cost like the buyer in relation to copying and transferring of data.
4. Time Savings – Seller saves time, as well as the transfer, is done instantly, they can get an easier and quicker answer from the buyers.
5. Security – As the VDRs have tracking records in details so the seller can easily see who accessed what data in case of breach of confidentiality.
6. Legal Compliance – Legal compliance to the authorities becomes much easier as this data is available to keep a regular check on the data and there is no fear of loss of data.
7. Competitive Price – As the sellers can share the VDRs with multiple investors without fear of geographical boundaries, financial burden or security.

Further, a huge benefit to the environment is caused due to the absence of the use of papers in such large numbers as well no transportation of these leads to the saving of energy. 

DISADVANTAGES

1. There are general concerns relating to the security as well as the confidentiality of such rooms as this is still a newer zone and if once the security is breached all the data can be lost at once as opposed to physical copies in which transferring of such data in one go is impossible.
2. Sellers would generally want to restrict the buyer’s ability to transfer or copy the data but it becomes difficult. 
3. Some sellers or buyers are reluctant to change to this system due to security and privacy threat.
4. Virtual Data Theft is a lot easier than physical theft as it can be done by sitting anywhere in the world at any time. 
5. Good Computer systems are required to handle such complex and large data, otherwise, it would cause problems in reading the data. 

6.Competitive price- This is a buyer only disadvantage as they lose an edge which they had earlier due to geographical or financial restrictions on the seller to share the data which multiple companies or investors which is now removed. 

Conclusion

VDRs are an affordable solution for the companies to reduce overhead costs, provide data in a secure and rapid mode but sometimes there is a risk of security and bloated data structures. But the advantages outweigh the disadvantages by huge margin and with finer development in the field of technology, it is the only way to go forward. The VDRs are the one and only future for these transactions.

References

1.  Seth Dua &Associates, Joint Ventures & Mergers and Acquisitions in India, 2011 Edition, page no.5.

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This article has been written by Akul Khandelwal, a student of Symbiosis Law School, Pune.

Abstract

With the implementation, even a sole owner can incorporate his own company which would be known as “One Person Company”. One Person Company is a new milestone in the Indian corporate legal world which has its own pros and cons. This paper aims to deal with the basic idea behind the implementation of this concept and its genesis around the world. The introduction of the new Companies Act in 2013 has been the most significant reform in company law in India which allowed for various changes and a more progressive and liberal approach to do business in India. The revolutionary concept of One Person Company (OPC) was first introduced in India through the Companies Act, 2013 through Section 2(62). It was recommended for the first time in India by the expert committee headed by Dr. JJ Irani in 2005. The introduction of this form of business has provided a vital impetus to entrepreneurs who can now set up an OPC instead of a sole proprietorship to further limit their liabilities. This concept paves the way for a more dynamic legislation which would allow for greater growth in the economy and regulation of the corporate sector. Last, but not the least, future of OPCs in India seems to be bright and it is analysed how it will help the small entrepreneurs grow and contribute towards the economy of the country with lesser resources.

Keywords: One Person Company, Business, Unlimited liability, limited liability, Companies Act.

Introduction

The concept etymologically does not owe its existence to India, it has been in existence for a while in other countries. Singapore allowed for the existence of an OPC thorough the Companies Amendment Act of 2004 while China introduced the same in 2005. In Turkey, a joint stock company, as well as a limited liability company, may be established by one or more shareholders, this was added via the Turkish Commercial Code[1]. This addition in the Companies was keeping in consonance with the global trends. 

This was also suggested by the Dr. JJ Irani Committee on May 31, 2005 keeping in mind the rapidly changing economy to allow the individual to operate and contribute to the economic domain to further boost efficiency. The reasoning behind allowing one person to start a company of his own is that it is not required for a person to join forces with other people to contribute to the economy as he could do this on his with fewer  On the heels of the dot com bubble with the increase in the usage of internet and computers along with emergence of the service sector, the entrepreneurial capabilities of the people needed to be provided an outlet[2]. 

The statutory definition of an OPC is also the literal definition which means a company that only has one person as its member. As per S. 2(68) an OPC comes under the meaning of a private company, hence, the provisions applicable to private companies are also applicable to one-person companies. Just as private companies must use ‘Pvt.’ in their name an OPC must also use ‘one person company’ with their names. 

Incorporation

The modes of incorporation for an OPC are given under Section 3 of the Companies Act, 2013. In order to get incorporated the OPC must follow the requirements under the section. The memorandum must also include the name of the nominee other than the sole promoter who, in case of some contingency shall run the company. The consent of such nominee has to be filed with the Registrar at the time of formation/incorporation of one person company along with its Memorandum and Articles. This consent may also be withdrawn in accordance with the prescribed manner.

Only a natural person can incorporate an OPC. He/she must be a citizen of India and a resident[3] in India. In such a case only may that person set up or be a nominee of an OPC. The person must also be a major since a minor is not allowed to be a member or nominee in an OPC. He/she shall also not be eligible to a nominee in or incorporate more than one OPC. The member of the OPC may also at any time change the nominee by giving notice to the company which in turn would intimate that to the Registrar. 

Privileges enjoyed by OPCs

One of the primary reasons for a person to incorporate this type of company would be the limited liability as compared to a sole proprietorship which in contrast does not differentiate between the business and the person. 

The provisions in relation to general meetings under Section 98 and S. 100 – 111 do not apply to an OPC. It must have a minimum of 1 director and a maximum of 15 which could also be increased by passing a special resolution. A business currently running under sole proprietorship could also easily get converted to an OPC if it meets the requirements such as a minimum paid-up share capital of Rs. 1,00,000.  An OPC is also not required mandatorily to have a Cash Flow Statement as a part of its financial statements.

Genesis and Worldwide Acceptance

England was the first country to accept the concept of a one person company through the decision in Saloman v. Saloman[4]. Soon after it was statutorily recognized in 1925. Other countries soon followed in its footsteps such as USA, China, Singapore, EU countries and Qatar. 

Soon after India followed by incorporating these changes into the 2013 law. Through the JJ Irani Committee in 2005, the recommendation was made to introduce this concept. This brings in the unorganized sector which can be governed in a better way which leads to fruitful paths for MSME[5] sectors and entrepreneurs. 

Threats imposed by OPC

The business scenario in 21st century is very dynamic. With new innovations being introduced every day and increasing competition, it is important to analyse any concept with all of its pros and cons and keep a check which would outweigh another and feasibility of the change. OPC is one concept which was recognised by the world long back but is very new to India. India is a developing nation and it is crucial to keep all the sectors in mind before applying any policy.  

Restriction to convert

The major visible set back of an OPC is that it cannot carry out non- banking financial activities and is unable to make investments in securities of any corporate body. As per the rules applicable to OPC, it cannot be converted. It can either convert itself into a private or public company once it has been in existence for a minimum period of 2 years or its paid up capital has increased beyond Rs. 50,00,000 or its average turnover has exceeded Rs. 2,00,00,000. These conditions and bars stifle an entrepreneur’s desire to expand and diversify his business. 

ESOPs[6] cannot be provided

Another set-back faced by OPCs is that they cannot provide sweat equity shares as an incentive to their employees as the owner is the sole proprietor of the OPC. If an OPC changes into a private or public limited company, then the ESOP can be implemented.

Too much of FDI

Another possible set back of an OPC can be it might attract a lot of foreign direct investment as the owner of the OPC would like to merge with a foreign investor in order to diversify and expand his business which will attract certain problems such as inflation, disappearance of small cottage industries etc. Investment in an OPC would be a quicker and better option for any foreign investor while investing in India and formation of too many OPCs will attract lot of FDI. 

Lack of accountability

One of the primary features of a company is the democratic decision making as in any decision undertaken there is more than one member involved. However, in an OPC, it is a departure from this concept by virtue of Section 96(1) and 122. There are no voting powers involved in this type of decision making depriving it of all accountability.

Critical appraisal

It is crucial to analyse the set-backs and possible loopholes in the existence of One Person Company at this stage where frauds have become a thing in the commercial strata. One question to be pondered upon is “Whether the sole shareholder of the OPC be permitted to be a creditor of the same company”. It can be apprehended after a deep analysis of the status of OPC and keeping the concept of separate legal entity aside that allowing the sole owner of the OPC to be the sole creditor might result in certain loopholes in the estimated plan of progression. This is because as a corporate editor of the company the sole shareholder may misuse his status and gain the assets of a company that is being wound up and thereby dismiss better claims of other unsecured creditors[7].  On a close analysis of the judgment given in the Saloman’s case, it can be observed that the result was an event of celebration for Mr. Saloman who was given 1000 pounds out of the proceeds of liquidation as the “beneficial owner of the debentures”. This might be the intentional move of the sole owners of OPC to side-line the justice process and in this way creditors might not be reluctant to provide loans to OPCs. In Wheeler v. Smith[8], the dictum of the court narrated the same story as:

“While the claim of a sole stockholder against a bankrupt corporation should be scrutinised with care, it is not the law that such a claim should be rejected merely because the claimant is such sole stockholder.” [9]

Therefore, it is crucial if for no other reason, it has been discussed that this advantage must not be afforded to the sole director at the cost of putting the assets of the company under liquidation beyond the reach of prospective creditors of the company[10].  Therefore, it is submitted that certain regulations shall be made in this regard or this whole process of obtaining such assets must be made more cumbersome for the sole shareholder. 

It is pertinent to note that there exist two concepts: –

• Lifting of the corporate veil
• Piercing of the corporate veil

Though both the concepts have been used interchangeably time and again but there’s a difference between the two. Lifting of corporate veil means peeping behind the veil and identifying the managing authority behind the working of a company on the other hand piercing of corporate veil leads to a complete dissolution of the separate personality and is to be used sparingly in limited cases involving corporate sham or impropriety[11].  There have been numerous reports which suggest that the common law countries are more inclined towards applying the principle of piercing of corporate veil in case of OPCs. It is prudent and reasonable also as a private company or public company with multiple shareholders and managers playing different roles have lesser propensity to defy statutory regulations. On the other hand, in case of OPCs, the sole owner in the position of the creditor can take of claims of other creditors under immunity as was in the case Saloman.

Conclusion

OPC being more technical and newer concept has not been accepted with open arms as of now in India. OPCs provide legal protection to the small entrepreneurs by allowing them to move towards the organized sector from unorganized sector. This concept opens up the path for small traders who wished to open their own company but could not do so because of the lack of the other director or shareholder to open up a company with. This is believed to be a revolutionary step in the unorganized sector.

While it is a remarkable step forward for the ease of doing business in India OPCs also has certain limitations. Firstly, a person is not eligible to incorporate or be a nominee in more than one OPC; Secondly, Non Banking Financial activities cannot be carried out by an OPC which includes investment in securities; Thirdly, there has been criticism against this type of company as it may lead evasion of tax by the individual. 

Furthermore, it is essential for the courts to strike a balance between lifting of corporate veil and piercing of corporate veil while dealing with OPCs. Although no such cases have been registered till date, the onus is on the courts to ensure that the sole purpose of establishing OPCs does not fail. 

After analysing all the pros and cons of the abovementioned concept, it can be said that though there are certain grey areas related to OPCs but the overall legislation is efficient and free of ambiguities. Therefore, if implemented properly, this concept would be a boon for the Indian economy.

Bibliography

Books

Singh, Avtar (2015) Company Law 16^th Edition. India: Eastern Book Company

Ramaiya. A. (2015) A Ramaiya’s Guide to the Companies Act 18^th Edition. India: LexisNexis

Kapoor, G.K. (2016) Company Law- A Comprehensive Text Book on Companies Act, 2013 19^th Edition. India: Taxmann

Cases

Saloman v. Saloman (1897) AC 22 

Wheeler v. Smith 30 F 2d 59, 61 (9th Cir 1929)

Trustor AB v. Smallbone (No. 2), (2001) 1 WLR 1177.

Dollar Cleaners & Dyers, Inc. v. MacGregor, 163 Md. 105, 109, 161 at 159, 161 (1932).

Journal Articles

Chen Jianlin, Clash of Corporate Personality Theories: A Comparative Study of One-member Companies in Singapore and China; Hong Kong LJ 38, 425 (2008).

Dr. K.B, One Person Company (OPC) under the Companies Act, 2013: A New Business Concept in India, Bhatner Socio-Legal Journal, Vol. 2, 80, 2015.

Websites

Abhaynkar, Meenal (2015) Company Formation/Registration/Incorporation in India Procedure of OPC Formation in India [Online]. Available from: http://blog.abhyankarcs.com/company-formation-in-india/procedure-of-opc-one-person-company-formation-in-india/ [Accessed 19^th July, 2016]

Gupta, Sagar (2015) How to Incorporate One Person Company? [Online]. Available from: http://taxguru.in/company-law/incorporate-person-company.html [Accessed 19th July, 2016]

Endnotes

[1] Chen Jianlin, Clash of Corporate Personality Theories: A Comparative Study of One-member Companies in Singapore and China; Hong Kong LJ 38, 425 (2008).

[2] Dr. K.B, One Person Company (OPC) under the Companies Act, 2013: A New Business Concept in India, Bhatner Socio-Legal Journal, Vol. 2, 80, 2015.

[3] Resident here means someone who has resided in India for atleast 182 days in the foregoing calendar year.

[4] (1897) AC 22

[5] Micro, Small and Medium Enterprises.

[6] Employee Stock Ownership Plan is an employee benefit plan which offers ownership interest in the organization to the employees.

[7] Parth Dixit and Ramya Katti, Disrobing OPC’s: The Battle with the Cloak of Limited Liability, (2017) 3 HNLU SBJ 22.

[8] 30 F 2d 59, 61 (9th Cir 1929)

[9] Ibid.

[10] Dollar Cleaners & Dyers, Inc. v. MacGregor, 163 Md. 105, 109, 161 at 159, 161 (1932).

[11] Trustor AB v. Smallbone (No. 2), (2001) 1 WLR 1177.

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

Starting your own law firm is a dream. If you are able to make your own law firm takeoff, that would mean a lot of things. You would have control over your time and work.  You will be able to build the kind of workplace where you will love to work in (this was a big reason why I started iPleaders). You will be respected for your work and contribution. You will probably be much richer, but in any case, you get to decide your fate. You bear the risk, but you enjoy the rewards too.

It is not for everyone, because the risk scares many people. Some people just want the rewards minus the risk. But there is a vast majority of people who really want to start their own law firm one day, someday, despite knowing the risk.

How big is the risk anyway? If you are a competent lawyer, you are in a great market to start on your own because finding competent, honest and hard-working lawyers is so difficult. It is not too difficult to start and run a small or solo law practice.

Scaling it up, of course, is a different ball game.

I recently interviewed about a dozen lawyers working in top law firms, people who I respect for their quality of work, and asked them what is stopping them from starting their own law firms. The answers I got were very instructive. Let’s run you through these reasons:

Fear of failure

Beginners are less afraid of failure, but as you grow in the legal profession, you put on a veneer of prestige and success. You are drawing a good salary, living in a good house, driving a good car on which you still have to pay the EMI. It is hard in that place to take any risks at all. You feel that you have a lot to lose. Even if you just lose 1 year’s salary, and that amount is 30 lakhs, it is quite scary, isn’t it?

This is why you will see younger lawyers or those who didn’t hit professional success in a law firm or an in-house legal department and have been struggling in some way or other starting up more frequently. That sounds crazy, but it is true.

More difficult the game, lesser the competition. And sometimes the lack of competition is enough reason for you to win.

Fear of failure and losing the status and money they have already put in work to earn stops a large number of competent lawyers from starting up even though they are otherwise very well placed to do so.

Comfort Zone

The first couple of years are the years of horror in most lawyers’ lives. After this, things begin to get better usually, if they develop competence. It is hard to leave when things are getting better after a phase of fear and struggle. 

Lawyers, if they manage to survive in a law firm or a chamber that pays a decent salary for that long, find a kind of comfort zone in their work within 3-4 years. They mostly do the same kind of work, especially in law firms. Most of their life is predictable at this point. They get very comfortable with their life. To leave the same and venture out in the wilderness does not look appealing.

Even when they dream of starting up someday, they feel tremendous inertia. 

Do I know enough?

A common excuse is that I am not ready to start up yet, I need to wait till I am more senior, till I have gray hair, till I have more experience, etc. Mostly this is a creative justification for not taking a risk. 

Nobody was born with the knowledge of how to run a business. And at the end of the day, starting your own law practice is essentially starting a business. You will have to learn how to run a business. One way to learn is to learn on the job, by making mistakes. Or you can rely on books that may be relevant. I also highly recommend doing a course on legal practice development and management. 

You are not going to learn about how to run a business by doing a job. There is a lot of difference between the two. Lawyers who start young tend to build better practices than most of those who wait for a long time – simply because they spend more time hustling and learning the ropes of how to run a law practice.

In terms of legal knowledge, surely you do not know enough. A lawyer never knows enough. 

You will get better with more exposure. When you are in a job, you do what is more important and profitable for the organization, and not necessarily what will make you a better lawyer. Your learning within an organization may not grow because you are required to focus narrowly for the sake of efficiency and profitability. 

But you can learn, and you learn faster when you have to go out there and get business, as well as handle the accountability for delivering the results to your client. This is vastly different from working for a boss. The increased ownership leads to greater responsibility, and greater responsibility leads to faster development. I see lawyers who practice independently mature much faster than those who stick to a safe job, although there are exceptions. 

In 2012 when I quit my job in a big law firm to start a legal education company, somehow I did not hesitate about what I did not know. I said I will figure out on my way. When I look back it feels crazy that a lawyer with just one year’s experience ventured out to take on much bigger competitors and wanted to offer top-notch online courses. Precocious, wasn’t it?

But we managed. 

Also, with technology being ubiquitous and making legal knowledge accessible on fingertips of even an intern, or a client, excuses, like I do not know enough yet, have ceased to be valid. There was a time legal knowledge was something to acquire and remember over the years, but this is now how it is anymore, given that anyone can find all the relevant laws within minutes using powerful technology tools. I highly recommend that you check out programs like Litigation Library and Master Access. These can really speed up your learning and help you to deal with clients at a moment’s notice.

I need to save more first

I have heard this from many friends who eventually went on to start a law firm. One of my colleagues in Trilegal used to say often that he wants to start up but will wait a bit more till he has some savings. He has been working for 5 years in law firms at that point, and had no savings yet! He kept saying he needs to save in order to quite for at least 7 months, at which point the firm decided to let go of his entire team. 

Very upset, my friend decided to not look for another job, but borrowed 1 lakh from his father, and just started a practice from his bedroom. I still remember referring his first client to him. Today he runs a very reputed boutique law firm, with several crores in profits.

It wasn’t as hard as he thought it will be. It helped that he is a terrific lawyer and has a strong business sense. It is also true that in the first one and a half years he struggled to find clients who could pay decent rates for quality work. But half the game is to sustain in the market until clients begin to trust you. Trust is also a factor of how long you are in business and how many people you managed to do well by.

When I started, I had 3 months of rent and food expenses in my bank account. I had no idea when I will earn my next cheque. But it came, soon. It always does, if your intent is right, you can genuinely do good work, and ready to take a leap of faith.

The worst-case scenario is that you work a bit cheaper than what you should charge! Until you find your footing of course, after which you can move on to charging a premium. Do not wait until you have enough savings. I have friends who have half a crore saved in the bank but still can’t find the confidence to quit.

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Some people are genuinely bad at organizing a practice

Everyone should not start their own law practice. There are plenty of talented lawyers who are better off in a law firm or working under someone else. To start your law practice, you need to develop a whole new set of skills, related to management. 

You need to find clients and ensure that they have a good experience. 

You need to learn how to price your services right. You need to understand your market and how to position yourself in there, you need to understand marketing and branding. 

You have to learn how to attract talented lawyers to work for you and how to retain them. If you have partners to work with, you need to select the right ones and then ensure they stick with you. You even have to keep a tab on the performance of the lawyers you hire and you have to train them.

You need to retain old clients while you are trying to bring in new ones. You need to build efficient operation and train the support staff so that work moves like clockwork. 

Basically, apart from the law, there are tons of moving parts in an organization and you need to master a whole host of them. 

This is not everyone’s cup of tea. Some lawyers are meant to build organizations, and others should just focus on their legal work, benefitting from an organization that provides them the rest as facilities.

Are you planning to start your own law firm? Have you started one and learning to manage and grow it at the same time? 

It is hard enough to start your law practice, but what if you could prepare and train for it? What if you could apprehend the problems that may arise in the future and nip them in the bud? What if you could learn the best practices?

We have a course that will shorten the learning phase. Do not learn by doing mistakes when you can learn systematically in a safe environment, from top experts. It is the Legal Practice Development and Management Course.

It is making a difference to the careers of lawyers who have been practicing independently for a long time, and it will certainly be an eye-opener for you. It is backed by a 30-day money-back guarantee. Check it out over here. You can participate in the course for 30 days, attend classes, do the assignments and if you find that it’s not helping you, take a full refund, no questions asked (read the refund policy properly). 

Check out the list of our stellar guest faculties, basically, the who’s who of the legal industry to get a sense of what is in store. It’s on the course page here, just scroll down a bit.

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What is Marriage?

Marriage also is known as matrimony or wedlock is a legally recognized union of two people in a socially and recognized process that establishes rights and obligations between those persons and also between their (if any) biological or adopted children. 

Essentials of a Valid Marriage

Hindu Law

Section 5 of the Hindu Marriage Act, 1955 explains conditions for a valid marriage which are as follows:- (See Here)

Monogamy- Neither party at the time of marriage should have a spouse who is alive. The spouse being alive will bar the remarriage of either party and even if the remarriage happens it will be null and void and the party will be punished under Section 494 and Section 495 of Indian Penal Code, 1860. It must be taken into account that the first marriage of the party is legal. This condition prohibits the concept of bigamy or polygamy.

Mental health and capacity- The condition covers three important things:- 

Party should not be incapable of giving a valid consent due to unsound mind. 

Even if the party gives consent, he must not be suffering from any mental illness at such a rate to be unfit for marriage or procreation of children. The party should not be subjected to repeated attacks of insanity which would render him/her unfit for marriage. If a party suffers from a mental defect after marriage then the marriage does not violate this condition. 

Marriageable age- For party to be eligible for marriage, he/she must have completed 18 years of age in case of the bride and 21 years of age in case the bridegroom. However violation of this condition does not make the marriage void or voidable. It is valid though it will be penalised. It can be a valid ground for repudiating the marriage. The punishment for such a marriage prescribed under this Act is imprisonment for 15 days or a fine of Rs. 1,000 or both. 

Degree of prohibited relationship- This condition covers the following relationships between two parties:- 

1. By lineal ascent
2. By affinity

The parties should not come under the degree of prohibited relationship. 

Sapinda Relationship- Two persons are sapindas of each other if one is the lineal ascendant of the other within the limits of sapinda relationship or there is a common lineal ascendant between them. 

Marriage under Hindu law is sacrament and not a contract which can be entered into by executing a deed. (See Here)

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Muslim Law

Muslim marriage is regulated by custom. Muslim marriage is a contract with the sole object of procreating heirs. The following are the essentials of a valid Muslim marriage:- (See Here) 

Parties must be of sound mind– Lunatics can get married at lucid intervals when they can understand what they are doing. Idiots cannot do that. Idiocy is a state of mind where a person cannot understand the consequences of his action. An insane person can contract a marriage with the help of a guardian but on recovering he can repudiate the marriage. 

Parties must have attained puberty– The age of majority under this law is the age at which parties have attained puberty.  A person who is 15 years old is said to have attained puberty unless the otherwise proved. 

The religion of both parties– For a valid marriage, both parties must be Muslims irrespective of the sect. 

Consent– Both parties can give consent to the marriage on their own. If one of the parties is of unsound mind, consent can be given by his/her legal guardian. Consent must be given willingly without fraud, coercion or mistake of fact. 

Christian Law 

The Indian Christian Marriage Act, 1872 governs Christian marriages in India. The conditions for getting a certificate of valid marriage are similar to Hindu Marriage Act, 1955. 

1. The groom must be at least 21 years of age and the bride at least 18 years.
2. Neither party should have a spouse living at the time of marriage.
3. The bride and groom need a licensed person (refer to Part I of  Indian Christian Marriage Act, 1872) and two witnesses.
4. Finally, they need to speak certain words in front of these persons. 

Parsi Law

The Parsi Marriage and Divorce Act, 1936 governs Parsi marriages in India. Section 3 lays down the following conditions for a valid marriage:-

1. A ceremony called “Ashirvad” must take place in the presence of a priest and two Parsi witnesses.
2. Just like the HMA, no prohibited relationships as per Schedule I.
3. The bride and the groom should be 21 years old and 18 years old respectively.

Special Marriage Act, 1954

The Act covers all marriages which are not covered in the above categories and its main objective is to legalise inter-religion marriages. Parties belonging to the same religion can also be married under this Act. The conditions for a valid marriage are as follows:-

1. Neither party must have a living spouse at the time of marriage.
2. The parties must be of sound mind, capable of giving free consent and not subject to recurrent attacks of insanity or epilepsy.
3. They should not come under prohibited degrees of relationship with each other.
4. The bride and the groom should be 21 years old and 18 years old respectively.

What are Void and Voidable Marriages?

Section 11 of Hindu Marriage Act, 1955 defined void marriages as those marriages which were solemnised after the commencement of this Act if a petition is presented by either party against another party and will be declared the same by a decree of nullity if it violates some conditions of a valid marriage. 

Section 12 of Hindu Marriage Act, 1955 defines a voidable marriage as a marriage which can be annulled or avoided at the discretion of the parties. 

The following are the differences between these two marriages:-(See Here)

1. In a void marriage, it is the parties discretion even without recourse to the court to treat it as a nullity. Neither party is under any obligation to seek a declaration of nullity under this section. When a marriage is void, the court regards it as never having taken place and that there is no conferment of status of matrimony as a result thereof. A voidable marriage, on the other hand, is regarded by the court as a valid and subsisting marriage until a decree of nullity is obtained during the lifetime of the parties. In a void marriage, the decree declares the status and in a voidable marriage the decree changes the status.
2. In a voidable marriage, till it is annulled by a decree, the parties are husband and wife and children out of such marriage are legitimate. A voidable marriage can be avoided only on presentation of a petition by either party thereto whereas a marriage which is null and void may be declared under ordinary law to be so even at the instance of a stranger whose interests are affected by such marriage. 
3. In a void marriage, lapse of time is not a bar to the inquiry as to their validity or invalidity. Thus it can be questioned at any time because it is seeking a relief of declaration regarding status. Whereas a marriage which is voidable cannot be questioned after the death of either party.
4. In a void marriage, no rights or obligations are created between the parties to marriage, which arise in lawful marriages in normal course as a void marriage stands nullified from the very beginning.

Registration of Marriage

All marriages in India are compulsorily registered under two Acts namely:- (See Here)

1. Hindu Marriage Act, 1955
2. Special Marriage Act, 1954

Under Hindu Marriage Act, 1955 both parties have to be present along with their guardians or witnesses within 1 month from the date of marriage. Marriage is registered before a marriage registrar or tehsildar of the district where the parties got married. Notice is not required. It can be done on the same day of filing of application or few days of moving the application for marriage. Parties will receive a marriage certificate which will prove the registration of marriage.

Under Special Marriage Act, 1954, both parties must be present for registration along with 3 witnesses in whose presence the marriage is solemnized by the Marriage Officer. Marriage is registered and the parties receive marriage certificate after a few days.

Quiz on Marriage

1.) The Hindu Marriage Act, 1955 does not apply to which of the following? 

A.) Jain 

B.) Sikhs 

C.) Buddhist 

D.) Parsis 

2.) Under the Hindu Marriage Act, 1955, “sapinda relationships” extends through the mother till- 

A.) Third Generation 

B.) Fourth Generation 

C.) Fifth Generation 

D.) Seventh Generation 

3.) What is the legal age for marriage under the Hindu Marriage Act? 

A.) 21 for both Male and Female 

B.) 21 for Male and 18 for Female 

C.) 18 for both Male and Female 

D.) None of These 

4.) Which of the following is the correct forum to file a petition for restitution of conjugal rights? 

A.) Court of 1st class judicial magistrate 

B.) Munsif Magistrate 

C.) District Court 

D.) High Court 

5.) Marriages under Section 5(ii) of the Hindu Marriage Act, 1955 are 

A.) Null 

B.) Null and Void 

C.) Voidable 

D.) Void 

6.) Under the Hindu Marriage Act, 1955, what is the minimum time period of desertion by either of the spouse required before filing for a divorce? 

A.) 1 year 

B.) 2 years 

C.) 5 years 

D.) 7 years 

7.) What is the minimum period that should elapse before either of the spouse can file a divorce petition under Hindu Marriage Act, 1955? 

A.) 3 months of marriage 

B.) 6 months of marriage 

C.) 1 year of marriage 

D.) 2 years of marriage 

8.) What is the prescribed punishment for breaching the minimum age requirement under the Hindu Marriage Act, 1955? 

A.) 15 days imprisonment or Rs 1000 fine or both 

B.) 30 days imprisonment or Rs. 1000 fine or both 

C.) 15 days imprisonment or Rs 5000 fine or both 

D.) None of These 

9.) When were women given a right to inherit property under Hindu Succession Act, 1956? 

A.) 2005 

B.) 2006 

C.) 2007 

D.) 2008 

10.) Under the Hindu Adoption and Maintenance Act, 1956, what is the maximum age for a person to be taken for adoption? 

A.) 15 years 

B.) 16 Years 

C.) 17 Years 

D.) 18 Years 

11.) Can a child adopted under Hindu Adoption and Maintenance Act, 1956 renounce his adoption? 

A.) Yes 

B.) No 

C.) Yes, with consent of both the parents 

D.) Yes, after attaining the age of majority 

12.) What is the punishment prescribed for payment in exchange of adoption under the Hindu Adoption and Maintenance Act, 1956? 

A.) 3 months imprisonment 

B.) 6 months imprisonment 

C.) 1 year imprisonment 

D.) 2 years imprisonment 

13.) Under the Hindu Adoption and Maintenance Act, a widowed daughter-in-law is entitled to maintainace by her 

A.) Father-in-law 

B.) Father 

C.) Deceased husband’s brother 

D.) None of the above 

14.) The consideration for marriage under Muslim law is know as 

A.) Mahr 

B.) Khula 

C.) Mubarat 

D.) Zihar 

15.) Which of the following forms of Talaq is not recognised by Shias? 

A.) Talaq-i-sunnat 

B.) Ila 

C.) Talaq-i-Biddat 

D.) None of the above 

16.) Under the Hindu law, divorce by mutual consent was introduced after what year? 

A.) 1955 

B.) 1963 

C.) 1976 

D.) 2005 

17.) A marriage between a Hindu man and a Muslim woman can be validated under which legislation? 

A.) Special Marriage Act, 1954 

B.) Hindu Marriage Act, 1955 

C.) Cannot be validated 

D.) None of these 

18.) Can the adoptive father or mother under the Hindu Adoption and Maintenance Act, 1956 give the child for further adoption? 

A.) Yes 

B.) No 

C.) Yes, with the consent of child 

D.) None of these 

19.) A Hindu couple is permitted to adopt a Muslim child under which legislation? 

A.) Juvenile Justice Act, 2015 

B.) Hindu Adoption and Maintenance Act, 1956 

C.) Children Welfare Act, 1978 

D.) None of these 

20.) As per the Hindu Marriage Act, ‘degrees of prohibited relationships’ apply to persons if they are related by- 

A.) Full Blood 

B.) Half of Uterine Blood 

C.) Adoption 

D.) All of these 

Answers 

1.) D 2.) A 3.) B 4.) C 5.) C 6.) B 7.) C 8.) A 9.) B 10.) A 11.) B 12.) B 13.) A 14.) A 15.) C 16.) C 17.) A 18.) C 19.) A 20.) D 

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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 Ramanuj Mukherjee, CEO, LawSikho.

what does it take to be a legendary lawyer? Talent? Luck? Hard work? Sacrifice?  

When did Vishwanathan Anand become a world champion in chess? When he defeated Shirov in Tehran in 2000? That would be the official answer. But I beg to differ. 

The destiny was determined the day his mother introduced a 6-year-old Anand to chess. 

His destiny was determined when he chose to spend most of his time playing the game, read up books on chess and did not give up when he lost a few games. His destiny was decided when he began training hard.

Who knows how many others with great talent in chess never even discover it, or when they discover some early signs of talent, they ignore it, or get easily satisfied with a few claps and prizes and move on to pursue the next cool thing under social pressure.

Not Anand. 

His destiny was decided when instead of playing with other kids in the neighbourhood he chose a difficult and cerebral game that did not involve instant satisfaction of hitting a boundary, scoring a goal or even the company of other kids of his age.

His destiny was decided when he chose to be a nerd rather than a cool kid. His destiny was decided when he got some early success, but was not satisfied with that, but strove for bigger things. Practiced longer hours. Thought up more strategies. 

After his first win as a world champion, he lost that position. Then he worked harder for 7 more years to come back even stronger and remained world champion for several years. It is that grit to excel, to fight, to grind it out in the face of tremendous uncertainty that produces great champions.

We should thank the father of Vishwanathan Anand, for not forcing Anand to go for IIT! And Anand, because he didn’t spend most of his time the way “normal” teenagers spend!

When did J.K Rowling become the richest author in the world? Was is after the Harry Potter series was published? Or was it when she took an interest in literature and started developing the faculties that enabled her to write an epic magical book?

Did Sachin Tendulkar become the God of cricket when he hit his 100th century? Or was it when he practiced for 10-14 hours straight, every single day, whether or not the skin of his feet came off inside his shoes, or whether or not a bouncer injured him, as a 14-year-old boy?

Greatness is born in the face of difficulty, in the face of adversity and pain, and it is unconventional. If you want to be normal, do the normal things, greatness cannot be yours. It requires obsession. It requires grit. And later people insult that work ethics by writing it off as great talent.

The truth is that 10 years of relentless hard work looks like talent when it hits the stage.

The other day, a friend was asking me – how do you write so well? I said practice. She said you are very talented. It felt good, but I knew the truth. So I said, when I was a kid, I wrote terribly, but people around me encouraged me seeing my enthusiasm. Plus who tells a kind that he didn’t write well? So people applauded me. And I kept writing because I was hungry for attention as a kid.

11 years later, as a 16-year-old kid, I got the president of India’s award for creative writing. People told me I have great talent. Only if they could see how horrible the first 100 poems I wrote were! 

For a moment I also believed in that theory of me being talented when I was standing in the Darbar Hall of the Rashtrapati Bhavan to receive the award from Prof. Abdul Kalam. But years down the line, as I have not been in the habit of writing poetry, lines and expressions do not flow through my fingers as it did once in my teenage years.

I write to you guys almost every day though. Even now, I can see my writing skills improving because I write almost every single day. My job demands it. Also, I love to write. It is my self-expression. Because I do it every day, I have gradually improved and today my writing may look like talent to someone.

I know that it is nothing but practice.

It is not just that!

When I was a kid, my parents really wanted me to learn to draw and paint. They got me a private tutor for learning painting. However, I was probably the worst art student ever.

I was horrible. I used to be happy when the art teacher didn’t come for some reason. If he came, I would try to create excuses to send him back. I didn’t practice the assignments he gave me. I just didn’t learn anything about drawing and painting.

However, at this age, I do have fantasies about learning to paint. And you know what, it is now much easier to learn. 

So is music. Even music is easier to learn. 

Or organizational behavior. Or negotiation. Or email marketing. Or Facebook ads. Figuring out anything is far easier for me now because I know how to learn. Learning so many other things and mastering them has made it possible for me to learn new skills rapidly. 

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Accelerated learning. 

Is it all that different from the profession of law?

Do you wonder why is it that law students and young lawyers do not learn and practice the skills specifically that may make them stand out as extraordinary lawyers?

What are the fundamental skills and what can one practice to become the Vishwanathan Anand or Sachin Tendulkar of law? What would 10 years of practice look like?

Why are good lawyers, who are already very good at their current area of work and therefore have a thriving practice, find it so easy to pick up new areas of practice and do well? 

A majority of lawyers never become any good at anything because they do not practice. They do not sacrifice sweat and blood. They do not have coaches to show them how to be better lawyers. They do not use any tools to get better at their craft.

They sit and wait for clients to come. They behave as if they are entitled to clients or jobs just because they have given a bunch of exams and got an LLB degree. Well, and that is why you will find so many struggling lawyers in the market, complaining, complaining and complaining about how unfair the world is.

There are so many people looking for good legal representation, people whose problems are not getting solved, mass-scale issues that could be tackled with legal skills – but all they can do is behave like their seniors did in the 90s, and hope people will come and hand over their money to fill forms and make lame arguments before judges.

Well, please note that your knowledge is not that exclusive anymore, anyone can read up the law by googling. People can find out how good a lawyer you are simply by using social media and asking around. You really need to up your game!

I understand, there was no systematic access to such coaches, practice environment or tools until we built LawSikho. But now we have it. And we have a proven track record of making a difference to the careers of over 2,000 lawyers in the last one and a half years. Just ask around! 

Here is what the first student of our Master Access program told us yesterday:

Anyway, you don’t need to believe us. Try any of our premium courses, risk-free, for one month, and then take your money back if you don’t want to proceed, no questions asked. We have only one condition: for one month, attend our classes and do the assignments we give you. Here is the extremely generous, unmatched in history, refund policy: https://lawsikho.com/policy/refund-policy

I am certain you can become a legendary lawyer if you put your education before your comfort, fear, and inertia. Get moving, keep learning. Keep at it, and never stop learning. In a decade, you will be unrecognizable. That is a long way to become a legend.

Do you know any shorter way?

Our ambition is to create extraordinary lawyers who will shape India. Come and join us so we can make it happen.

We are taking admission currently in the following programs:

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Diploma in Companies Act, Corporate Governance and SEBI Regulations

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What Is Divorce?

Divorce is a legal action in which a couple terminate or dissolve their marital relationship. It generally refers to a legal action which ends a marriage before the death of either spouse. (See Here)

What Are The Grounds For Divorce?

Hindu Law

According to Section 13 of Hindu Marriage Act, the following are the grounds for divorce:-

• ADULTERY– If either of the parties indulges in sexual intercourse outside marriage, it is called an act of adultery. Divorce can be filed by the aggrieved party on this ground. 
• CRUELTY– If a petitioner is subjected to mental or physical harm that causes danger to his/her life, it is called an act of cruelty. 
• DESERTION– If the petitioner is abandoned by his/her spouse for not less than 2 years immediately before the petition for divorce is presented in court. 
• CONVERSION– If either party ceases to be a Hindu by converting to another religion. 
• MENTAL DISORDER– If a party is of unsound mind, suffering from a mental disorder to such an extent that petitioner cannot live with the respondent. 
• LEPROSY– If either party suffers from an incurable form of leprosy then a petition for divorce can be presented in court. 
• VENEREAL DISEASE- If either party suffers from communicable form of a venereal disease then a petition for divorce can be presented in court. For eg. AIDS. 
• RENUNCIATION– If either party has renounced the world by joining a religious sect.
• NOT HEARD ALIVE– If either party has not been heard from for 7 years by persons who would naturally have heard from him had the party been alive. 
• NO RESUMPTION OF COHABITATION– There has been no resumption of cohabitation between parties for or after 1 year of the passing of a decree of judicial separation. 
• NO RESTITUTION OF CONJUGAL RIGHTS– There has been no restitution of conjugal rights between parties for or after 1 year of passing of a decree of restitution of conjugal rights.

A wife may also present a petition for divorce on the following grounds:-

1. In case of a solemnized marriage before the commencement of this Act, the husband remarried before such commencement or any other wife of the husband was alive at the time of solemnization of the marriage of the petitioner. 
2. Since the solemnization of marriage, the husband has been guilty of rape, sodomy or bestiality. 
3. In a suit under Section 18 of Hindu Adoptions and Maintenance Act, 1956 or under Section 125 of the Criminal Procedure Code, 1973 or under corresponding Section 488 of Criminal Procedure Code, 1898, a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for 1 year or upwards. 
4. Her marriage was solemnized before she was 15 years old and she repudiated such marriage after she was 15 years old but before she turned 18 years old.

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Under Section 13B of the Hindu Marriage Act, 1955  a petition for divorce can be presented by both the parties to a marriage to the district court because they have been living separately for 1 year or more, they have not been able to live together and they have mutually agreed to end this marriage. Parties may on a motion to withdraw this petition not earlier than 6 months and not later than 18 months after the date of presentation of the petition and if they do not withdraw it then the district court will, after hearing the parties and after making an inquiry that the marriage is solemnized under this Act and that the averments made in the petition are true, dissolve the marriage by passing a decree.

Muslim Law

According to Section 2 of The Dissolution of Muslim Marriages Act, 1939, the following are the grounds for divorce:-

1. Husband’s whereabouts has not been known for 4 years. 
2. Husband has neglected or failed to provide for his wife’s maintenance for 2 years. 
3. Husband has been sentenced to prison for 7 years or more. 
4. Husband has failed to perform his marital obligations without reasonable cause for 3 years. 
5. Husband was impotent at the time of marriage and continues to do so. 
6. Husband was insane for 2 years or suffering from leprosy or venereal disease. 
7. Woman was given in marriage at 15 years of age by her father or guardian, repudiated the marriage before she was 18 years. 
8. Husband treats his wife with cruelty.
9. Any other ground valid for dissolving a marriage under Muslim law. 

Parsi Law

According to Section 32 of The Parsi Marriage and Divorce Act, 1936, the following are the grounds for divorce:-

1. Marriage has not been consummated within 1 year after the solemnization due to refusal of the defendant. 
2. At the time of marriage, defendant was of unsound mind. 
3. Defendant was of unsound mind for 2 years immediately before filing of the suit or has been suffering from a mental disorder so much that the plaintiff cannot live with the defendant. 
4. Defendant was pregnant at the time of marriage ny some other person except the plaintiff. 
5. Since the solemnization of marriage, defendant has committed adultery or bigamy or rape or fornication or an unnatural offence.
6. Defendant has treated the plaintiff with cruelty since the solemnization of marriage.
7. Since the marriage, defendant caused grievous hurt or infected a venereal disease to the plaintiff or if defendant is the husband has compelled the wife to submit herself of prostitution.
8. Defendant is undergoing imprisonment for 7 years or more. 
9. Defendant has deserted the plaintiff for at least 2 years.
10. Order passed against defendant awarding maintenance to the plaintiff and parties did not have intercourse for 1 year or more since such decree. 
11. Defendant has converted to another religion.

Section 32A states that either party to a marriage if it is solemnized before or after the commencement of Parsi Marriage and Divorce (Amendment) Act, 1988 may also file for divorce under the following grounds:-

1. If there is no resumption of cohabitation between parties to the marriage for 1 year or above after passing of a decree of judicial separation. 
2. If there has been no restitution of conjugal rights between parties to the marriage for 1 year or above after passing a decree regarding the same.

According to Section 32B, a petition for divorce can be presented by both the parties to a marriage to the district court because they have been living separately for 1 year or more, they have not been able to live together and they have mutually agreed to end this marriage provided that no suit can be filed unless 1 year has passed since the date of marriage. 

Christian Law

Section 10 of The Divorce Act, 1869 lays down grounds for divorce in case a respondent:-

1. has committed adultery. 
2. has converted to another religion. 
3. has been for not less than 2 years immediately before the presentation of petition:-
4. Suffering from an incurable unsound mind.
5. Suffering from a communicable venereal disease.
6. Suffering from leprosy. 
7. has not been heard from for 7 years or more by those people who would naturally have heard of him is he was alive. 
8. has wilfully refused to consummate the marriage. 
9. has not complied with decree of restitution of conjugal rights for 2 years or more decree is passed. 
10. has deserted the petitioner for at least 2 years immediately before the presentation of petition. 
11. has treated the petitioner with cruelty.

A wife can present a petition for divorce if the husband has since marriage been guilty of rape, sodomy or bestiality.

Section 10A states that both the parties to the marriage may together present a petition for divorce to the District Court if such marriage was solemnized before or after the commencement of Indian Divorce (Amendment) Act, 2001 on the grounds that they have been living separately for 2 years, they have not been able to live together and they have mutually agreed to end this marriage.

Special Marriage Act, 1954

Section 27 of the Special Marriage Act, 1954 lays down the grounds for divorce if the respondent has:-

1. After the solemnization of marriage had indulged in the act of voluntary sexual intercourse with any person other than his/her spouse. 
2. Deserted the petitioner for 2 years immediately before the presentation of petition. 
3. Been undergoing imprisonment for 7 years for any offence under Indian Penal Code, 1860. 
4. Been treating the petitioner with cruelty since the solemnization of marriage. 
5. Been incurably of unsound mind or suffering from a mental disorder. 
6. Been suffering from a communicable venereal disease or leprosy not being contacted from the petitioner. 
7. Not been heard of as being alive for 7 years by those people who would have naturally heard from him if he would have been alive.

A wife can also present a petition for divorce to a district court on the following grounds:-

1. Her husband has been guilty of rape, sodomy or bestiality since the solemnization of marriage. 
2. In a suit under Section 18 of Hindu Adoptions and Maintenance Act, 1956 or under Section 125 of Criminal Procedure Code, 1973 or under corresponding Section 488 of Criminal Procedure Code, 1898, a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for 1 year or upwards.

If a marriage is solemnized before or after the commencement of Special Marriage (Amendment) Act, 1970, either party to a marriage may present a petition for divorce:-

1. If there is no resumption of cohabitation between parties to the marriage for 1 year or above after passing of a decree of judicial separation. 
2. If there has been no restitution of conjugal rights between parties to the marriage for 1 year or above after passing a decree regarding the same.

According to Section 28, a petition for divorce can be presented by both the parties to a marriage to the district court because they have been living separately for 1 year or more, they have not been able to live together and they have mutually agreed to end this marriage. Parties may on a motion to withdraw this petition not earlier than 6 months and not later than 18 months after the date of presentation of the petition and if they do not withdraw it then the district court will, after hearing the parties and after making an inquiry that the marriage is solemnized under this Act and that the averments made in the petition are true, dissolve the marriage by passing a decree.  

What Is Judicial Separation?

It is an instrument devised by law in which time is given to the married couple  for introspection in their troubled marriage. It is seen as a last resort before divorce is granted. Once a decree for judicial separation is passed, the husband or wife is under no obligation to cohabit with their spouse. (See Here)

Hindu Law

Section 10 of Hindu Marriage Act, 1955 specifies judicial separation in which either party may present a petition for the same on any grounds for divorce given under Section 13 and in case of a wife presenting such a petition, it shall on the grounds specified separately in the same section.

Muslim Law

A Muslim woman can present a petition for judicial separation on the grounds of divorce given under Section 2 of Dissolution of Muslim Marriages Act, 1939. (See Here)

Christian Law

Sections 22 to 26 of The Divorce Act, 1869 explain judicial separation. Section 22 states that petition for judicial separation may be presented by either party on the grounds of adultery, cruelty or desertion for 2 years or above and such decree shall have the effect of a divorce.

Special Marriage Act, 1954

Section 23 of Special Marriage Act, 1954 states that either party to a marriage may present a petition to the District Court on any of the grounds mentioned in Section 27 and on failure to comply with a decree for restitution of conjugal rights. 

Difference Between Judicial Separation And Divorce

The difference between judicial separation and divorce are as follows:-

1. In judicial separation, marriage is temporarily suspended whereas in divorce marriage permanently comes to an end. 
2. In judicial separation, reconciliation between parties is possible whereas in divorce parties cannot reconcile. 
3. In judicial separation, parties cannot remarry wheres in divorce parties can remarry. 
4. In judicial separation, there is only one stage of judgment wherein if the grounds are satisfied then the decree is passed. In divorce, judgment is a two step process in which there is reconciliation and then divorce.

What Is Annulment Of Marriage?

Annulment is a legal procedure in which a marriage is declared null and void. It is generally given only in cases of bigamy and not meeting the minimum age requirements for marriage. A marriage is annulled if certain legal requirements are not met at the time of marriage. Such marriage is considered to never have existed in law (See Here)

Hindu Law

Void and voidable marriages given under Sections 11 and 12 Hindu Marriage Act, 1955 respectively are annulled by parties. 

Muslim Law 

Faskh is translated as nullity of marriage but is not equivalent to annulment of marriage used in matrimonial suits. A declaratory suit can be filed with respect to right or status outside marriage under this law as per Section 34 of Specific Relief Act, 1963. A declaratory suit can be filed on the following grounds:- (See Here)

1. The marriage of the plaintiff with the defendant is null and void; 
2. The defendant who is claiming himself or herself to be the husband or wife of the plaintiff, is, in fact, not his or her husband or wife. (This is known as jactitation); 
3. The plaintiff is lawfully wedded husband or wife of the defendant; 
4. The plaintiff in the exercise of his right of repudiation of marriage, or in the exercise of the option of puberty, has repudiated the marriage with the defendant; 
5. The plaintiff has terminated his or her irregular marriage with the defendant; or 
6. The plaintiff’s marriage with the defendant has been validly dissolved.

Parsi Law

Section 30 of The Parsi Marriage and Divorce Act, 1936 states that if consummation of a marriage is not possible then on the instance of either party such marriage shall be declared as void. 

Christian Law

Sections 18 to 21 of The Divorce Act, 1869 explains nullity of marriage. Either husband or wife can present a petition to the district court declaring the marriage to be null and void on the grounds that:-

1. The respondent was impotent at the time of marriage and institution of suit. 
2. Parties are within the prohibited degree of consanguinity or affinity. 
3. Either party was a lunatic or idiot at the time of marriage. 
4. Former husband or wife of either party was alive at the time of marriage and such marriage with former husband or wife was then in force. 

If the consent of either party was obtained by force or fraud then it shall not affect the jurisdiction of district court to make a decree of nullity of marriage.

Special Marriage Act, 1954

Section 24 states that either party to a marriage may present a petition seeking a decree of nullity if:-

• Either party had a spouse living. 
• Either party:-
• was incapable of giving consent to the marriage due to unsoundness of mind
• even if capable of giving consent, has been suffering from a mental illness of such an extent as to be unfit for marriage
• has been subjected to recurrent attacks of insanity. 
• Male was below 21 years of age and female was below 18 years of age. 
• Parties were within the degrees of prohibited relationship.

This section will not apply to a marriage solemnized within the meaning of Section 18 (Effect of registration of marriage) but such registration will have no effect if it was in contravention of any conditions of Section 15.

Section 25 states that a voidable marriage may be annulled by a decree of nullity if:-

1. There has been non-consummation of marriage due to wilful refusal of the respondent to consummate the marriage. 
2. Respondent was pregnant by some other person other than the petitioner at the time of marriage. 
3. Consent of either party was obtained by coercion or fraud.

Decree shall not be granted in the 2nd condition if:-

1. Petitioner was ignorant of the facts alleged at the time of marriage. 
2. Proceedings were instituted within 1 year of marriage. 
3. Marital intercourse has not taken place with the consent of the petitioner because of the existence of the grounds of decree. 
4. Decree shall not be granted in the 3rd condition 
5. Proceedings have not been instituted within 1 year after coercion had ceased or fraud had been discovered.
6. Petitioner has lived with his/her partner as husband and wife with  free consent after coercion had ceased or fraud had been discovered.    

Difference Between Annulment Of Marriage And Divorce

Divorce ends a legal marriage whereas annulment treats the marriage as if it never existed. (See Here)

To know more about, laws of taxation for AIBE, please Click Here

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 Uzair Ahmad Khan.

Introduction

In the year 2003, the need for alternate dispute resolution method and their efficacy was brought before the judicial scrutiny. The Indian legislature amends the code of civil procedure, 1908 and brought section 89 which introduced alternate dispute resolution methods. Section 89 and other amended provisions were challenged before the Supreme Court of India by the Salem Advocate’s Bar Association.

Why section 89 inserted in the Code of Civil Procedure, 1908?

Section 89 of the Code of Civil Procedure, 1908 gives power to the court to refer the matter to the alternate dispute resolution methods when it appears to the court that there exists an element of settlement which may be acceptable to the parties then the court may formulate such settlement or propose a tentative settlement and refer the parties to an alternate means of setting the dispute such as arbitration, conciliation, Lok Adalat or mediation.

The intention behind section 89 was quite apparent, as most of the developed countries had already adopted the alternate dispute resolution methods and the methods adopted by them were proved to be successful to the extent that over 90 per cent of the cases were being settled out of court. It had been inserted to provide justice in spite of the law’s delays and the limited number of judges available. Parties can prevent themself from indulging into litigation and go for dispute resolution methods for resolving their dispute.

How section 89 is inserted in the Code of Civil Procedure, 1908?

The Law Commission of India in its 163rd report on the Code of Civil Procedure (Amendment Bill), 1997 raise its concerns on the quality of the justice delivery system in the country. The commission also states that any delay in the disposal of cases threatens justice. Due to passage of time, the memory of witnesses weakens and makes the presentation of evidence difficult which ultimately leads to the loss of public confidence in the judicial process which in itself is a threat to the rule of law and consequently to democracy. Thus, section 89 came into being.

Section 89 also states which set of law will be applicable to the settlement proceedings depending on which method is chosen. As for arbitration or conciliation proceedings the Arbitration & Conciliation Act, 1996 will apply; for a reference to Lok Adalat or judicial settlement the Legal Services Authority Act, 1987 will apply and for mediation the Mediation Rules, 2009 will apply.

Recommended changes to Section 89

The changes were brought up by the Law Commission of India to encourage dispute resolution methods. The commission stated that the court should not be required to undertake the exercise proposed by section 89 either the court should not be requested to negotiate a settlement between the parties. To do so, the court may be required to abandon its impartiality and be obliged to express an opinion on a particular aspect of the dispute while formulating the terms of a possible settlement. 

Law Commission observed that the parties to the dispute should be referred to a committee or a board which was to be constituted with the specific intent of determining whether or not a settlement could be reached between them and if so, to attempt to reach such a settlement during the period when there is a good amount of time in the interval between the framing of issues in a suit and the commencement of the trial. The board or committee is required to use conciliatory methods within a limited time to ensure that no further delay would cause. The Law Commission was of the opinion or belief that this method would substantially reduce the case backlog in our courts.

The above-mentioned recommendation of the Law Commission was not adopted in section 89 of the CPC but the report was adopted and incorporated in Rules 1-A, 1-B and 1-C of Order X of the CPC.  

The rules stated that after the recording of the admissions and denials, the court may request the parties to the suit to choose one of the modes of settlement specified in Section 89. After the request of the court, the parties will appear before such forum, authority, committee or board for conciliation of the suit. The provision uses the term “request” which means that the parties to the dispute have the option to refuse to have their case sent to the conciliation board or committee. 

If the authority believes that after the conduct of the conciliation proceeding it will not be possible in the interest of justice to proceed further with the matter, then the parties may be redirected to the court for the adjudication of their dispute.

Interpretation of Section 89

In section 89 there are words used “shall and “may” which needs to be clarified in order to settle any doubts or possible conflicts that may have arisen with regard to the interpretation of the provision. The wording “the court shall formulate the terms of settlement” comes earlier and the word “may” is used in the latter part of the provision. The was interpreted to mean that the court has wide discretion in deciding whether the dispute at hand can be settled out of court. 

Section 89 does not impose a mandatory duty upon the court to refer the parties to arbitration, conciliation, mediation merely because it is possible to resort to such methods in that particular case. The word shall is also used in Order X of the CPC and it is observed that the court is under no compulsion to refer the parties to alternate means of resolving their dispute if it does not feel it

Second, section 89 fills a lacuna in the law. As the Arbitration Act, 1996 imposes a duty upon the court to refer the parties to an arbitral tribunal where the arbitration agreement is already in existence. However, before the enactment of section 89, there was no provision which allows the court to suggest arbitration as a means of dispute settlement to the parties to suit where no arbitration agreement existed prior to such suggestion or recommendation. 

The constitutional validity of Section 89

Constitutional validity of section 89 was challenged before the Supreme Court of India by the Salem Advocate’s Bar Association on the grounds of arbitrariness. There was a series of arguments on the followings issues:

• There was no explanation on how the provision would be implemented.
• No guidelines concerning which cases are to be referred for settlement out of court.
• How to refer the disputes
• What would be the management formula regarding referring the dispute to the alternate dispute resolution methods.
• What rules and regulations should be followed while taking recourse to alternate dispute resolution under section 89.

What court responded on the above issues?

The Supreme Court ardently defended the provision by stating that the intent and purpose behind the framing of section 89 was to ensure the speedy delivery of justice which is one of the supporting rights to the fundamental right of life and personal liberty found in Article 21 of the Constitution.

The Supreme Court recognized that it was necessary to frame and guidelines for the conduct of alternate resolution proceedings in the interest of giving full effect to the right to timely justice. As the arbitrariness of the provision could be resolved by passing guidelines and rules for the manner in which the disputes may be referred and resolved.

Justice M. Jagannadha Rao Committee Report

The Supreme Court of India constituted a committee headed by the former judge of the Supreme Court and Chairman of Law Commission of India, Justice M. Jagganda Rao after its judgement in Salem Advocate Bar Association v. Union of India in the year 2003.

The committee filed a report considering the difficulties that arose in the working of the amendments and made suggestions for necessary changes. The Court adopted the report filed by Justice M. Jagannadha Rao Committee in the follow-up judgement to the Salem Advocate Bar case in 2005.

The report was divided into three parts the first part of the report considers various grievances that arose in relation to the new amendments to the CPC. The second part of the report takes into consideration issues concerning the dispute resolution methods and mediation under Section 89 reads with Order X. it also contains model rules for arbitration and mediation. The third part of the report contains a conceptual appraisal of case management and model rules for case management. 

Impact on High Courts

The Supreme Court ordered that every High Court in the country have to take notice of the recommendations in the Justice M. Jagannadha Rao Committee Report and frame rules on the basis of the report for the state where it exercises its territorial jurisdiction. Under Order X of the CPC various High Courts were required to pass rules for the governance of alternate dispute resolution methods.

Section 82 of the Arbitration & Conciliation Act, 1996  empowers the High Courts to make rules consistent with the Act in respect of all proceedings governed by the Act. The objective behind drafting rules is to provide guidelines for the regulation of the procedure to be followed from the beginning to the end of the dispute resolution process.

Conclusion

The final conclusion of this article is with respect to the role of alternate dispute resolution methods in the code of civil procedure. Section 89 fills a lacuna in the law. The judiciary is already overburdened with the cases and because of this, there is a delay in the disposal of cases which threatens justice. With the insertion of section 89 the court can suggest alternate dispute resolution methods to the parties where there is no arbitration agreement between the parties. The parties can avoid litigation and choose alternate dispute resolution methods for resolving their dispute expeditiously.

Reference

1. Arbitration Law – A Primer

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This article is written by Komal Kumari, a 4th year student of BA.LLB in Lloyd Law College, Greater Noida. The article focuses on the aspects of Drug Possession, types of drugs, and the drug control strategy and policies laid down by the Central government.

“Smoke away your worries.” In our country, individuals love to get high on weeds. Isn’t this an irony that the possession of drugs has so many aspects, the first one that we have on our hands is that we give such a huge importance to our culture, our mythology, we are known as the land of shiva, whom we worship and to whom we offer bhaang (a kind of drug) as in holistic manner an offering to the lord, distribute as the offering (prasad) on occasions like holi, akha teej, etc, unlike other countries we have a cultural connection of using certain natural forms of narcotic substances for celebrating some religious festivals and on the other hand we have banned the possession of the same substance and termed it as illegal in the country because it has repercussions or rather a huge impact on the health of any individual consuming it and does lead to serious crimes of trafficking, drug abuse and serious impact on the economy as well. The use of drugs leads to a number of criminal activities and family disintegration. The war on drugs has resulted in crimes ranging from blue-collar to white-collar crimes. In this era when terrorism is a global threat, drugs are used in the form of funding for terrorist activities. All of these require proper and effective laws to fight the evils of drug possession. 

Types of Drugs 

OPIUM – Papaver Somniferum, commonly known as the opium poppy, is a species of flowering plant in the family Papaveraceae. It is a plant that grows in many countries around the world with a moderate climate. Raw Opium is a non-homogeneous material, sticky, tar-like and dark brown when it is fresh, and becomes brittle and hard as it ages. Opium contains a class of naturally occurring alkaloids known as opiates which includes Morphine, Thebaine, Codeine, Papaverine, Noscapine and Oripavine. Heroin is synthesized from Opium.

Medical Opium: The Opium that undergoes the necessary process to adapt for medical use as per the requirements of the central government.

Morphine: This is also known as Mud, Morf, Morpho or Goma etc. This is a refined version of opium formed by mixing opium gum with Lime water and a few organic solvents.

Heroine: This is also known as Brown Sugar, Mexican Mud, Smack, Crap, Horse, Junk and Big H etc. It is made when morphine is further refined by treating it with acetylene anhydride (AC20).

Codeine: Another derivative of opium which is usually found in cough syrups.

Poppy straw – The husk left after the extraction of opium from the pods. It consists of small quantities of morphine, which is used as a drug.

Trafficking trend – Tra­fficking of Opium mainly takes place in Punjab, Rajasthan, M.P., Bihar, Jharkhand, Manipur and Gujarat.

HEROIN – Heroin is also known as di-acetyl morphine, is an opioid made from morphine, after processing it with Acetic Anhydride. It comes out in a variety of colours ranging from white, o white and brown to grey. Colours also depend on the impurities added as it passes through a number of hands due to successive levels of adulteration. The South West Asian origin Heroin (white and brownish mostly) that enters India through the Indo-Pak border has a higher level of purity.

Trafficking trends – Major tra­fficking of Heroin in India takes place through Indo-Pakistan border mainly in the states of Punjab and Jammu & Kashmir. From these states Heroin is tra­fficked into other states.

CANNABIS – Cannabis is a genus of flowering plants in the family Cannabaceae. The Cannabis, produced from the Cannabis sativa plant, is used in three forms: herbal Cannabis, the dried leaves and flowering tops. Cannabis is also known as ‘Ganja,’ or ‘Weed’. Cannabis resin, the pressed secretions of the plant, known as ‘Hashish’ or ‘Charas;’ and Cannabis oil, a mixture resulting from distillation or extraction of active ingredients of the plant.

Trafficking trends – Traffi­cking from the North-East India to eastern states is mainly by surface transport. Tra­fficking in substantial quantities takes place across India – Nepal border and in the states of Andhra Pradesh, Odisha, Uttar Pradesh, West Bengal and Tripura. The main transit routes for Ganja are through Assam, West Bengal, Bihar, Uttar Pradesh, Nagaland and Chhattisgarh.

HASHISH – Hashish, or Charas, is a drug made from cannabis. Hashish is cannabis resin. Generally, Hashish is extracted from the plants by rubbing the flowering tops of the plant between the palms of the hand or on rubber sheets.

Trafficking trends – Charas/Hashish is derived from the illicit cannabis cultivation by the drug tra­ffickers especially in the districts of South Kashmir and Kullu in Himachal Pradesh. There is a trend of traffi­cking of Charas from Kashmir to Maharashtra, Rajasthan, Goa & Gujarat. Charas is also tra­fficked from Nepal to India.

COCAINE – Cocaine is a powerful addictive stimulant drug made from the leaves of the coca plant native to South America. It is known as a street drug, it looks like a fine, white, crystal powder. The primary markets are North America and Europe. In India, cultivation of coca plant is not done. However, Cocaine is mainly smuggled in by West African drug tra­ckers.

Trafficking trends – Smuggling of cocaine is mostly being done by African nationals based in India. Instances of Cocaine being smuggled from Argentina, Brazil and South America have also come to notice. Seizures of Cocaine in India have been made mostly at the airports. The trafficking of small quantities of Cocaine is usually done through parcels hidden in common household articles like food items, utensils, cosmetics, books, and clothing.

ACETIC ANHYDRIDE – One of the largest producers of Acetic Anhydride for legitimate usage is India. It is widely used by the pharmaceutical and textile industries in India as well as being used for the illicit manufacture of Heroin.

Trafficking trends –

1. The medicines having narcotic/psychotropic components are under the dual control of Drugs and Cosmetic Act as well as the NDPS Act, the latter being more stringent.
2. There also exists a loose regime of over the counter sale of drugs under the category of dispensation against valid prescriptions.
3. Abuse of pharmaceutical drugs is prevalent in virtually all states of northern India. 
4. Abuse of Codeine Based Cough Syrups. 
5. Tra­fficking of CBCS is mainly along the border, especially at Indo-Bangladesh. Codeine based cough syrups are mainly tra­cked from Northern states like U.P, Delhi, Bihar to Northeastern states by road in trucks and railway parcels and there to Bangladesh. CBCS brands like Corex, Phensedyl, Recodex are abused and traf­ficked. 
6. Abuse of Depressants: Alprazolam, Diazapam, Clonazepam, Lorazapam, Benzodiazepine etc. 
7. Tramadol is used like codeine. It is not covered under NDPS Act, 1985. It is a Schedule ‘H’ drug under the Drugs & Cosmetics Act, 1940 and can only be dispensed under the prescription of a registered Medical Practitioner. Tramadol is also not included in any of the Schedules of 1971 UN Convention on Psychotropic Substances. It is banned in many of the countries resulting in the smuggling through India.Tramadol is traffi­cked via courier and manual means to countries like US, Canada etc. The notification of tramadol under NDPS Act is under consideration. 
8. Ayurvedic tablets containing Opium like Kamini Vidrawan Ras, Barshasa. 
9. Diversion of tablets containing Ephedrine/ Pseudo-ephedrine. 
10. Use of Internet for smuggling these pharmaceutical drugs is on the rise.

Psychotropic Substance 

Seven (7) NPS were notified under NDPS Act as per recommendation of 59th Commission on Narcotic Drugs. Out of 7 NPS, 5 were notified as Psychotropic Substances. The name of a few chemicals scheduled as Psychotropic Substances are as follows:

1. Para-methoxymethylamphetamine (PMMA), is notified as ‘Psychotropic Substance’.
2. pyrrolidinovalerophenone (PVP), is notified as ‘Psychotropic Substance’.
3. methoxetamine (MXE), is notified as ‘Psychotropic Substance’.
4. Phenazepam, is notified as ‘Psychotropic Substance’.

Is it illegal to be high?

It is illegal to be high in India as provided under Section 27 of the NDPS Act, which provides for the punishment for the consumption of any Narcotic drugs or psychotropic substance stating that any individual who consumes any kind of narcotic drugs or psychotropic substances would be punishable, if the substance which has been consumed is morphine, cocaine, diacetyl-morphine or any other narcotic drug or any psychotropic substance as may be specified by the Central Government in this behalf with a stringent punishment of imprisonment for a term which may extend to one year, or to pay a fine which may extend to twenty thousand rupees,or with both. If the narcotic drug or psychotropic substance consumed is other than those mentioned above than the punishment would be imprisonment for a term which mav extend to six months, or to pay the fine which may extend to ten thousand rupees or with both.

With the exception of scientific and medical purposes the following actions pertaining to drugs are termed as illegal:

• Cultivation or growing opium, poppy or any cannabis plant.
• Possessing any kind of narcotic drugs or psychotropic substances.
• Sale or purchase of narcotic drug or psychotropic substance.
• Using raw materials from the source for making of any narcotic drug or psychotropic substance.
• Carrying or transporting narcotic drug or psychotropic substance from one state to another, into union territory, importing or exporting from the country.
• Consumption of narcotic drugs or psychotropic substance.
• Ware-housing or storing large quantities of narcotic drugs or psychotropic substances.

Felony drug possession 

The term Felony originated from English Common law, it is defined as a crime of a serious nature, it can be violent as well as non-violent. Felonies are punishable by imprisonment for a minimum term of one year, to which additional punishment including capital punishment can be included. Crimes are usually divided into two heads, felonies and misdemeanours based on nature and the punishment (maximum punishment) which can be imposed. Felony involves serious misconduct that is punishable by death. The NDPS Act, 1985 had the provision of death penalty for subsequent convictions for trafficking large quantities of drugs under Section 31A of the act but through the amendment of 2014 the provision of the death penalty has been made discretionary for the judge by providing a sentence for 30 years. But on the other hand, this same amendment increased the punishment for “small quantity” offences to 1 year from a maximum period of 6 months. Therefore, the offences related to large quantities of drugs can be termed as felony.

Drug Trafficking 

Drug trafficking is the term used for referring the cultivation, production, consumption, import, export or smuggling of narcotic drugs and psychotropic substances at national as well as international level. There is a huge menace of drug trafficking, that is required to be controlled and for the same Prevention of Illicit Trafficking in Narcotic Drugs and Psychotropic substances Act was enacted. International Day against Drug Abuse and Illicit Trafficking is celebrated on June 26, this is an act initiated by the world community to make the people aware of the menace of drug abuse and especially the youth. 

There are various internal and external factors contributing to the drug trafficking scenario in India. The geographical location of India is as such, it makes it vulnerable to transit, trafficking and consumption of Opium derivatives in various forms along the known trafficking routes. One of the major external factors is related to be India’s close proximity to the major Opium producing regions of SouthEast and SouthWest Asia known as the ‘Golden Crescent’ and the ‘Golden Triangle’. A few of the internal factors which are responsible for drug trafficking are illicit cultivation of Poppy and the diversion of Opium sources from the licit sources into illicit production in interior areas.

The major reason of illicit drug trafficking is the geographical location of India, making our country as the transit country since a long time resulting in the smuggling of drugs into the country as well as out of the country, leading to the problem of drug control in India. In order to fight the problem of smuggling and trafficking, India has developed various policies and strategies i.e., Enforcing and surveying the import, export points and land borders, trying to improve the coordination between the various drug law enforcement agencies, intercepting and preventing the movement along the known drug routes, international co-operation to facilitate coordination and universal action, strengthening the intelligence apparatus for improving the analysis, collection, collation and dissemination of operational intelligence.

The concern of Supreme Court regarding drug trafficking can be described through the case of Durand Didier vs Chief Secretary, Union Territory, 1989 AIR 1966, 1989 SCR (3)1025, where the court stated that – “ With deep concern, we may point out that the organised activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances have led to drug addiction among a sizable section of the public, particularly adolescents and students of both sexes and the menace has assumed serious and alarming proportions in the recent years. Therefore, in order to effectively control and eradicate this proliferating and booming devastating menace, causing deleterious effects and deadly impact on the society as a whole, the Parliament in its wisdom, has made effective provisions by introducing this Act 81 of 1985 specifying mandatory minimum imprisonment and fine.”

Possession of drugs on school grounds 

Youngsters and teenagers always try to be adventurous and want to try out new things through which they can prove that they can do things. This is the age when the addicts usually get initiated into drugs abuse. Through a survey conducted by the East Delhi Municipal Corporation (EDMC) on the orders of the Delhi High Court’s Juvenile Justice Committee. It was found that 12,627, or roughly around 16.8% of 75,037 students across 368 schools are using substances. Out of this, 8,182 students were using betel nuts (supari) mixed with dried opium shells; 2,613 students chewed tobacco; 1,410 students smoked beedis and cigarettes; 231 consumed alcohol; and 191 used inhalants such as fluid, petrol, sulochan (an industrial glue) and injectable drugs.

Section 32B of the Narcotic Drugs and Psychotropic Substances Act mentions that if the offence is committed in any educational institution or social service facility or even in the immediate vicinity of such institution or facility or in other places to which school children and students resort for educational, sports and social activities’ as one of the aggravating factors which may be considered by the Court for imposing higher than the minimum penalty prescribed for the offence. And in to tackle the problem of sale of drugs to school and college children: 

1. The Local police shall pay special attention to areas surrounding schools and colleges in their efforts to tackle drug peddlers. 
2. Schools and colleges will be encouraged to look out for peddlers in their vicinity and report them to police. 
3. Schools and colleges will be encouraged to conduct surveys (possibly anonymous) to assess the levels of drug addiction among their students, and if addicted students can be identified, counselling sessions with their parents or wards to find medical help them from fighting this addiction. 
4. Inclusion of a comprehensive chapter on drug abuse, illicit trafficking and its socio-economic cost to self, society and the country by the Central and State Education Authorities.
5. Constitution of Anti-Drug Club in schools and colleges to promote a drug free life among its members and also in the institution.

First time possession charge 

The degree of punishment under the NDPS Act is devised not on the type of activity but to the proportional amount which is being carried. As per the Indian government, narcotic offence is more heinous than murder because the latter affects only an individual while the former leaves its deleterious impact on society. Nevertheless, drug dependant people, who are charged with the consumption of drugs or with an offence involving small quantity can choose to undergo medical treatment and get exempted from prosecution as provided under Section 64A of the said act. As per this section any individual who is charged with an offence punishable under Section 27 of the act which mentions the punishment for consumption of these substances or with offences involving small quantity of narcotic drugs or psychotropic substances, can voluntarily opt to undergo medical treatment for de-addiction from a hospital, an institution maintained/recognised by the Government or a local authority, shall not be liable to prosecution under section 27 or under any other section for offences involving small quantity of narcotic drugs or psychotropic substances. This immunity can be withdrawn if the individual does not undergo the complete treatment for de-addiction.

Punishment for Drug Possession 

The punishment under the NDPS Act depends on the quantity of drugs involved, here is a list of a few drugs and the quantity as specified under the Act: 

1. Punishment in relation to the violation of provisions related to poppy straw, prepared opium, opium poppy and opium, cannabis plant and cannabis, as mentioned in Section 15, 17, 18 & 20 of NDPS Act as- 
2. Anyone who violates the provision of this act, or any other rule or condition of license mentioned under this Act, by producing, manufacturing, possessing, purchasing, selling, transporting, importing or exporting inter-state will be punishable with- 
   1. Rigorous imprisonment for a term which may be extended to one year, or a fine which may be extended to ten thousand rupees or with both if the contravention involves small quantity.
   2. Rigorous imprisonment for a term which may be extended to ten years, and a fine which may be extended to one lakh rupees if the contravention involves quantity less than commercial quantity but more than small quantity.
   3. Rigorous imprisonment for a minimum term of ten years and can be extended to twenty years, and also a fine for a minimum amount of one lakh rupees and may be extended to two lakh rupees if the contravention involves commercial quantity.
   4. And if the reasons that have been recorded by the court, the fine imposed can exceed two lakh rupees.

1. Punishment in relation to violation of provision by cultivating any Cannabis plant as provided in Section 20 of NDPS Act as- 
   1. Rigorous imprisonment for a term which may be extended to ten years and also a fine which may be extended to one lakh rupees if the contravention is the cultivation of cannabis.
2. Punishment in relation to violation of provision related to coca plant and coca leaves as provided in Section 16 of NDPS Act as- 
   1. Anyone who violates the provision of this act, or any other rule or condition of license mentioned under this Act, by cultivating any coca plant or gathering any portion of the same or by producing, manufacturing, possessing, purchasing, selling, transporting, importing or exporting inter-state or uses coca leaves will be punishable with rigorous imprisonment for a term which may be extended to ten years with a fine which can be extended to one lakh rupees.
3. Punishment in relation to embezzlement of opium by cultivator as provided in Section 19 of NDPS Act as-
   1. Any cultivator, who is licensed to cultivate opium poppy, embezzles or illegally disposes off the opium produced or any other part of it will be punishable with rigorous imprisonment for a minimum term of ten years and which may be extended to twenty years with a minimum fine of one lakh rupees which can be extended to two lakh rupees.
   2. And if the reasons that have been recorded by the court, the fine imposed can exceed two lakh rupees.
4. Punishment in relation to the violation of provisions related to psychotropic substances, manufactured drugs and preparations, as mentioned in Section 21 & 22 of NDPS Act as- 
   1. Anyone who violates the provision of this act, or any other rule or condition of license mentioned under this Act, by manufacturing, possessing, purchasing, selling, transporting, importing or exporting inter-state or uses any psychotropic substances, manufactured drugs and preparations, will be punishable with- 
      1. Rigorous imprisonment for a term which may be extended to one year, or a fine which may be extended to ten thousand rupees or with both if the contravention involves small quantity.
      2. Rigorous imprisonment for a term which may be extended to ten years, and a fine which may be extended to one lakh rupees if the contravention involves quantity less than commercial quantity but more than small quantity.
      3. Rigorous imprisonment for a minimum term of ten years and can be extended to twenty years, and also a fine for a minimum amount of one lakh rupees and may be extended to two lakh rupees if the contravention involves commercial quantity.
      4. And if the reasons that have been recorded by the court, the fine imposed can exceed two lakh rupees.
5. Punishment in relation to illegal import into India, export from India or transhipping narcotic drugs and psychotropic substances, as mentioned in Section 23 of NDPS Act as- 
   1. Anyone who violates the provision of this act, or any other rule or condition of license mentioned under this Act, imports into India export from India or transhipping narcotic drugs and psychotropic substances, will be punishable with-
      1. Rigorous imprisonment for a term which may be extended to one year, or a fine which may be extended to ten thousand rupees or with both if the contravention involves small quantity.
      2. Rigorous imprisonment for a term which may be extended to ten years, and a fine which may be extended to one lakh rupees if the contravention involves quantity less than commercial quantity but more than a small quantity.
      3. Rigorous imprisonment for a minimum term of ten years and can be extended to twenty years, and also a fine for a minimum amount of one lakh rupees and may be extended to two lakh rupees if the contravention involves commercial quantity.
      4. And if the reasons that have been recorded by the court, the fine imposed can exceed two lakh rupees.
6. Punishment in relation to violation of Section 12 which provides the restrictions over external dealings in narcotic drugs and psychotropic substances, is mentioned in Section 24 of NDPS Act as- 
   1. Anyone who gets involved or controls any trade through which any kind of narcotic drugs or psychotropic substance is supplied to any person outside India or obtained outside India without prior authorisation of the Central government or as per the guidance provided will be punishable with-
      1. Rigorous imprisonment for a minimum term of ten years and which may be extended to twenty years with a minimum fine of one lakh rupees which can be extended to two lakh rupees.
      2. And if the reasons that have been recorded by the court, the fine imposed can exceed two lakh rupees.
7. Section 25 provides the punishment for knowingly allowing one’s premises to be used for commission of an offence as- 
   1. The same punishment that has been awarded for that particular offence.
8. Punishment in relation to violations pertaining to controlled substances, as mentioned in Section 25A of NDPS Act as- 
   1. Rigorous imprisonment for a term which may be extended to ten years, and a fine which may be extended to one lakh rupees.
   2. And if the reasons that have been recorded by the court, fine can exceed one lakh rupees.
9. Punishment for the consumption of any narcotic drug or psychotropic substance, as mentioned in Section 27 of NDPS Act as- 
   1. Rigorous imprisonment for a term which may be extended to one year, or a fine which may be extended to twenty thousand rupees or with both if the contravention involves small quantity if the substance consumed is cocaine, morphine, diacetylmorphine, or any other drug as has been specified by the central government.
   2. If the substance consumed is other than those mentioned above then with imprisonment which may be extended to six months, or with fine which may be extended to ten thousand rupees, or with both.
10. Punishment for financing illicit trafficking and harbouring offenders, as mentioned in Section 27A of NDPS Act as- 
    1. Rigorous imprisonment for a minimum term of ten years and which may be extended to twenty years with a minimum fine of one lakh rupees which can be extended to two lakh rupees.
    2. And if the reasons that have been recorded by the court, fine can exceed two lakh rupees.
11. Punishment in relation to attempts to commit offence, abetment and criminal conspiracy, as mentioned in Section 28 & 29 of NDPS Act as- 
    1. The same punishment that has been awarded for that particular offence.
12. Punishment in relation to preparations to do or omit to do anything which would constitute an offence punishable under any of the provisions of this Act, the person shall be punishable with half of the punishment with which he would have been punishable in the event of his having committed such offence and the same applies with the fine which would have been imposed, if the reasons that have been recorded by the court a higher fine can be imposed, as provided under Section 30 of the NDPS Act.
13. Punishment in relation to repeated offence the person shall be punished with rigorous imprisonment which would extend to one and one-half times the maximum term which has to be served and the same applies to the fine imposed that it will be extended to one and one-half times the maximum amount. If the reasons that have been recorded by the court a higher fine can be imposed, as provided under Section 31 of the NDPS Act.
14. As per Section 32, imprisonment up to six months, or fine, or with both is the punishment prescribed for violations that haven’t been mentioned elsewhere.

Punishment for possession of marijuana 

Marijuana is a mixture of the dried flowers, leaves, stems and seeds of Cannabis Sativa, a greenish-gray mixture. Tetrahydrocannabinol or THC is found in marijuana along with hundreds of other compounds. There are a number of slang terms used for referring marijuana i.e., ganja, herb, pot, bud, Mary Jane, weed, grass. It is considered as a soft drug( a drug of abuse which is considered relatively mild and likely not to cause addiction). People get high on this substance by smoking through pipes, water pipes which is often termed as bong; through hand-rolled cigarettes known as joints; by rolling these in cigar wraps termed as blunt. Smoking is not the only way for the consumption of this substance it is used for preparing tea (mostly when it is used for medicinal purpose), is mixed in edibles like candies, cookies and brownies. Marijuana is not only used for getting high but also has various medicinal benefits which help in the treatment of various kinds of disease i.e., is given to cancer patients during the chemotherapy treatment to relieve the patient from nausea and vomiting as well as for the treatment of the loss of appetite in AIDS patient. This medical marijuana is known as Marinol (Dronabinol), it is a synthetic form of tetrahydrocannabinol. 

Section 20 of Narcotic Drugs and Psychotropic Substances Act specifies the punishment in relation to cannabis or cannabis plant, as- 

1. Anyone who violates the provision of this act, or any other rule or condition of the license mentioned here, by cultivating, producing, manufacturing, possessing, purchasing, selling, transporting, importing or exporting inter-state or using cannabis will be punishable with- 
   1. Rigorous imprisonment for a term which may be extended to ten years and also a fine which may be extended to one lakh rupees if the contravention is the cultivation of cannabis.
   2. And if the contravention is related to all the other matters mentioned above apart from cultivation then- 
      1. Rigorous imprisonment for a term which may be extended to one year, or a fine which may be extended to ten thousand rupees or with both if the contravention involves small quantity.
      2. Rigorous imprisonment for a term which may be extended to ten years, and a fine which may be extended to one lakh rupees if the contravention involves quantity less than commercial quantity but more than a small quantity.
      3. Rigorous imprisonment for a minimum term of ten years and can be extended to twenty years, and also a fine for a minimum amount of one lakh rupees and may be extended to two lakh rupees if the contravention involves commercial quantity.
      4. And if the reasons which have been recorded by the court, the fine imposed can exceed two lakh rupees.

Is Bhaang beyond the purview of Narcotic Drugs and Psychotropic Substances Act, 1985 

As per the Narcotic Drugs and Psychotropic Substances Act, Cannabis along with its various different forms i.e., charas, ganja, bhaang, marijuana, hashish are termed as illegal and possession of the same has been termed as unlawful. 

Cannabis is defined under Section 2 (iii) & (iv) of NDPS Act, as “cannabis(hemp)” means- 

• Charas is the separated resin, in any form be it purified or crude which has been obtained from the cannabis plant and includes the concentrated preparation and resin which is known as hashish oil or liquid hashish;
• Ganja is the flowering or fruiting top of the cannabis plant excluding the leaves and seeds when not accompanied by the tops;
• Any kind of mixture, with or without any kind of neutral material of any form of cannabis which has been mentioned above or any drink prepared from it.
• “Cannabis plant” is for referring any plant of the genus cannabis. 

And the punishment for the same has been provided under Section 20 of the Act.

However, a captivating factor here is that the preparation of bhaang has not been covered by this Act. Bhang is the term used for a preparation made from cannabis leaves consumed in India on various festivals. As there is no use of cannabis resin or the tops in the preparation, the Act does not cover it. Various state governments permit the production and sale of Bhang. The person licensed to produce bhaang is allowed to produce only from the leaves of the wildly grown cannabis plants, if in anyway it is found that there has been a use of the flowering tops or the resin produced from the cannabis plants the person committing this act will be punishable as per the provisions of the NDPS Act, 1985. 

The question of whether bhaang is under the purview of the NDPS Act, 1985 has been a topic of discussion for the legal and medical experts. Judgement for the same has been provided through various cases where the court has decided that the leaves, dry leaves or seed does not fall within the purview of the Act because the seeds and leaves have been specifically excluded from the definition provided in Section 2(iii) of the said Act. A few cases have been mentioned below: 

• • Sevaram vs State Of Rajasthan on 2 December, 1992 
  • Madhukar S/O Pandurang Kanthale vs The State Of Maharashtra, (2002) 104 BOMLR 908 

• Arjun Singh vs State Of Haryana on 21 August, 2004

Narcotic Drugs and Psychotropic Substances Act

Narcotic Drugs and Psychotropic Substances Act is also termed as the NDPS Act, made with the purpose to control drug abuse and prohibit its use, distribution, manufacture, dissipation, and trade of substance of abuse. Narcotic drugs are those which induce sleep whereas psychotropic substances have the ability to alter the mind of an individual. The act came into existence on 14 November, 1985. As there are various kinds of drugs that have huge importance in the field of medicine. The proper utilization is required because the same drugs can give you life as well as snatch it away, if not used properly. Therefore, the act does provide the provisions required for the production, cultivation of cannabis, poppy, or coca plants and manufacture of psychotropic substances for medicinal requirements. The main focus for the enactment of this act is to possess control on manufacture, possession, sale and transport of such narcotic and psychotropic substances. This act bans around 200 psychotropic substances resulting in the process that no individual can get these drugs without prescription. These substances would only be available when proper prescription would be provided. If this law is violated it may result in rigorous imprisonment or fine or both in the form of punishment. The degree of punishment is devised not on the type of activity but to the proportional amount which is being carried. The degree of punishment is dependant on case to case basis if the drugs are being used for personal consumption the punishment may be less, varying from that when it is used for other purposes. The act has been amended in 1989, 2001 and recently, in 2014. Various changes have been brought in the Act through The Narcotic Drugs and Psychotropic Substances (Amendment) Act, 2014:

• It created another class of “essential narcotic drugs”.
• Widened the goal of the law from illicit traffic to scientific and medical use. 
• Increased the degree of punishment from six months to one year of imprisonment for small quantity offences.
• Providing a more detailed provision relating to the property derived from offence and the report of seizure of property of the person arrested by the notified officer.
• Making capital punishment optional.
• Upgrading the rank of officers by giving them approval for conducting search and arrest.
• Increasing the scope and the power of govt. In establishing centres for the treatment of addicts and the supply of Narcotic Drugs and Psychotropic Substances.

Prevention of Illicit Trafficking in Narcotic Drugs and Psychotropic Substance Act 

Illicit trafficking of narcotic drugs and psychotropic substances is a serious threat to the health and welfare of the people and even for those who are engaged in activities of such illicit traffic. This has a dangerous and harmful effect on the national economy. This is the act formulated to provide for detention in certain cases for the purpose of preventing illicit traffic in narcotic drugs and psychotropic substances and for matters connected therewith. 

Controlled Substances 

The definition of Controlled Substance is provided under Section 2(vii)(viic) in the Narcotic Drugs and Psychotropic Substances Act, 1985. Which states that any kind of drug which is strictly controlled by the Central Government under the NDPS Act due to its possible use in the production or manufacture of narcotic drugs or psychotropic substances or as per the provisions of any International Convention, by notification in the Official Gazette, has been declared as a controlled substance. 

Any form of production, manufacture, cultivation, possession, purchase, sale, storage, transport, distribution or consumption of these substances is termed as illegal except for scientific and medical purposes, according to the rules and orders or condition for the proper licenses which are issued.

Law Commission 155th Report 

Drug abuse has been one of the curses of the society, it is a menace which threatens public life and leads to destruction of not only the individual, families but also of the society. It would always be an important need to address this issue and control this.

It was felt that even after the amendment of 1988 in the Narcotic Drugs and Psychotropic Substance Act, there were no desired results. Therefore, the law commission considered it necessary to undertake a review of Narcotic Drugs and Psychotropic Substance Act, 1985, resulting in the 155th report of law commission. This gave recommendations with a view to fill up the loopholes and to make the provision more effective.

With a view of the huge concern of growing drug abuse in different parts of the country the law commission aimed at studying the following aspects:

1. Studying the menace of drug abuse and drug trafficking and its effect on the youth of India. 
2. Scrutinizing the Directive Principles of State Policy enshrined in the Constitution of India and the provisions of International Conventions on Narcotic Drugs and Psychotropic Substances;
3. Understanding the magnitude of the problem of illicit trafficking and use of narcotic drugs and psychotropic substance as well as the infirmities in the NDPS Act;
4. Examining the relevant provisions of the NDPS Act and their interpretation by the Courts and
5. Identifying the amendments required for more effective implementation of the NDPS Act. 
6. And to collect public opinion on the subject matter.

Drug control strategy and policy 

India’s policy towards drug control is enshrined in the Directive Principles of State Policy through Article 47 of the Constitution of India, which states that it is the duty of the state to raise the level of nutrition, the standard of living and to improve public health, moreover the prohibition of the consumption of drugs which are injurious to health, except for medicinal purposes. It is among the primary duties of the state. The drug control strategy in India is a multi-agency function.

There were a number of Central and State enactments i.e., (i) the Opium Act, 1857, (ii) the Opium Act , 1878 and (iii) the Dangerous Drugs Act, 1930. All of these acts were not sufficient for the proper regulation of drugs in India and therefore Narcotic Drugs and Psychotropic Substances Act, 1985 was enacted for the proper enforcement and regulation. This act sets out the statutory framework or the strategy for the drug law enforcement in India, as well as the provisions for the implementation of the various obligations to the International Conventions. The various International conventions to which India is a signatory are:

The main Narcotics focus areas in India are:

• To effectively prevent and combat abuse of illicit traffic in narcotic drugs and psychotropic substances.
• Identifying and eradicating the illicit cultivation and wild growth of opium poppy and cannabis.
• Enforcing and surveying at import points and land borders. Measures for control at the export points i.e., cargo-terminals, air-passenger terminals and foreign post offices.
• To improve the coordination between the various drug law enforcement agencies.
• Intercepting and preventing the movement along the known drug routes.
• International co-operation to facilitate coordination and universal action.
• To strengthen the intelligence apparatus for improving the analysis, collection, collation and dissemination of operational intelligence.

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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Guardianship Under The Family Law

Guardianship basically implies the legal authority and corresponding duty of a person to care for another person ( a child, disabled, an aged old person, etc) relating to his body or the property. Any person under the protection of another is commonly known as ward. Guardian is a person who takes care of an individual who is below the age of 18 years and his personal affairs as he is incompetent to manage them on his own under family law.

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Who Are Guardians And What Are His Rights?

A guardian is a person who makes important decisions about the children’s life. He/ She takes all the duties, rights and responsibilities and powers that a parent has in bringing up that child. A guardian may be classified as natural or by relationship(Testamentary) or by appointment of the court. A guardian has the following rights:

1. Right to custody,
2. Right to determine the religion of the child,
3. Right to education,
4. Right to control movement,
5. Right to reasonable chastisement,
6. Represent the minor in litigations,
7. Get compensation for legal expenses from minor’s property,
8. Sue the minor after he attains majority to recover expenses on his necessities,
9. Refer matters to arbitration if it is in the best interest of the minor

For the purpose of guardianship under the family law there are basically two acts that govern it:

1. Guardianship and Wards Act,1890,
2. Hindu Minority Guardianship Act,1956

Guardianship Under Hindu Law

The Hindu law of guardianship of minor children has been reformed, codified and defined by the Hindu Minority and Guardianship Act,1956. Thus, Section 4(b) of the act states that a minor means a person who has not completed the age of eighteen years. He is considered to be a person who is physically and intellectually imperfect and immature and hence needs someone’s protection.

Section 6-9 deals with the concept of the various types of guardians under the Hindu law and what are the various rights and duties that are present in the guardian and what are his liabilities and restrictions.

There are certain cases under which the guardianship of the child is given to either of the parents:

Case 1– If the couple has either a boy or an unmarried girl (legitimate), then, the first guardian would be the father and after the father will be the mother, but in case of a child who is less than 5 years of age, the custody of the child would always be with the mother unless the father after his death has appointed someone else as the guardian of the minor child.

Case 2– If the couple has an illegitimate boy or girl, then the first guardian of the child is the mother and after mother, guardian is the father unless the mother after her death has appointed a person to be the natural guardian of the minor child.

Case 3– If the couple have a daughter and she is married then the guardian of the married daughter will be his husband.

Removal of A Guardian

The court has the power to remove any guardian in accordance to the Section 13 of the Hindu Minority and Guardianship Act,1956:

1. If he ceases to be a Hindu,
2. If he becomes a hermit or ascetic,
3. The court can remove him if his interest are against the interest of the minor. 

The welfare of the minor is of paramount importance while deciding such things.

Guardian Under Muslim Law

The source of law of guardianship and custody are certain verses in the Quran and a few Ahadis. These authorities on Muslim law emphatically speak about the guardianship of the property of the minor, the guardianship of the person is a mere inference and since the Muslim personal law is not codified like the other laws there are certain concepts and terms that we study under this.

Power Of Guardian

1. Power of alienation,
2. Power to grant the lease,
3. Power to carry on business on behalf of the minor child,
4. Power to conduct partition,
5. Power to incur debts and enter into contracts.

Further, the Muslim law deals with the concept of the natural guardian, testamentary guardian and guardians appointed by the court and also covers the concept of custody in terms of de facto, custody and guardianship which are of utmost importance which have been defined under the muslim law in detail as the muslim law is not a codified law there are concepts related to every aspect.

Guardian Under Christian Law

As Christian law itself does not have any specific law thus it is governed by the Guardianship and Wards Act of 1890 under which it talks about the title, duties, powers, rights and restrictions of the guardian as per section 19 to 29 and various other sections discussing the same under the Christian law. 

Guardian Under Parsi Law

Under the Parsi law, there is no general law for guardianship but still, it is permitted by a statue amongst the Hindus and by custom among some numerically insignificant categories of the person for which they have to approach under the Guardians and Wards act of 1890. Since, Muslim, Parsi and Christian have no adoption laws so once a minor child under a foster care becomes major, he is free to break all his relations and also the law which is applicable to the guardian takes place outside the country.

Adoption Under Family Law

Adoption in the simple language implies the transplantation of a son into one family in which the son is born in another family. Adoption is to be carried on with all the legal proceedings and it is a mode of affiliation as the son of an individual, of one of whom he is not the natural son.

Adoption is one of the concept that has evolved over the years where it has been seen that earlier only a male could adopt a child but now a female can also adopt and even if a single parent wants then he can also adopt within the framework of the existing laws.Adoption as a practice is not followed in most of the personal laws. Under Muslim and Christian law adoption is prohibited but it is practised under the Hindu law due to the various self-beliefs and faith.

Adoption Under Hindu Law

This act of Adoption under the Hindu law can be done in two ways:

1. Within-country adoption,
2. Inter-country adoption,

The Intercountry adoption is governed by the Juvenile Justice Act. Under which there is an agency which is also known as the Central Adopted Regulating Authority.

The rules and policies regarding the inter-country adoption were properly laid down in the landmark judgment of Laxmikant Pandey vs Union of India in the year 1984 after which inter-country adoption rules and regulation got a new dimension.

The Hindu law from the very beginning allows for the adoption due to certain religious beliefs. For Example– There are certain obligations in the Hindu law that are required to perform by the son, for that purpose adoption is necessary. Thus, the Hindu law allows the adoption of a child under the Hindu Adoption and Maintenance act, 1956 and every adoption has to take place with in conformity of this act and any contraventions of the provisions of this act will be void. 

This act earlier was of the concept that only a male can adopt a child but later in amendment came and now a female can also adopt.  is applicable in the whole of India except the state of Jammu and Kashmir and applies to any person who is a Hindu. Section 6-17 of the Hindu Adoption and Maintenance Act, 1956 talks about who can adopt, what are the essentials for a valid adoption, conditions for a male and female to adopt, who can be adopted, what are the rights and relationship in the eyes of the law between the parents and the adopted child etc. 

Adoption Under Muslim Law

The Islamic law does not recognize the concept of adoption unlike the Hindu law and this was also proved in the landmark case of Mohammed Allahabad vs Mohammad Ismail where the court held that there is no concept of adoption under the Mohammedan law similar to adoption as under the Hindu system but the Muslim law acknowledges the concept of paternity.

The basic difference between the two is that under adoption, the person who is adopted is called as the son of another person while in paternity the essentials of acknowledgment are that the acknowledgee must not be known son of another.

Exception- If the person who wants to adopt has the orders of the court to adopt under the guardianship and wards act of 1890 can adopt.

Adoption Under Christian And Parsi Laws

The personal laws of these two communities do not recognize adoption and they do not have any laws for adoption but they can adopt a child only one circumstance that is by obtaining permission from the court under the Guardians and Wards Act of 1890 to adopt a child from a foster care. Thus, once the child under the foster care becomes a major hr ahs freedom to break all his relationships as such child does not possess the legal right of inheritance.

Succession Under Family Law

Succession basically means the transfer of property belonging to an individual after his demise to some other individual. Thus, the succession can take place in two ways:

• Testamentary Succession: When a person dies after making a will of his personal property, 
• Intestate succession: when a person dies without making a will of his personal property,

Thus, the succession laws that govern the various communities and religions are shown in the table below.

What Is A Will?

A will is a document in which a deceased person entrusts his property to be distributed  be assets to be distributed according to his wish. Section 2(h) of Indian Succession Act, 1925 provides that Will means the legal declaration of the intention of a person with respect to his property, which he desires to take effect after his death. The following are the terms related to a will:- (See Here)

Codicil

Codicil is an instrument made in relation to a Will, explaining, altering or adding to its dispositions and is deemed to be a part of the Will. The purpose of codicil is to make some small changes in the Will, which has already been executed. The codicil must be reduced to writing and has to be signed by the testator and attested by two witnesses. It is also the duty of the court to arrive at the intention of the testator by reading the Will and all the codicils.

Executor

An executor is appointed by the testator, as distinguished from an administrator who is appointed by the court. Where the Will confers the powers to collect the outstanding, pay debts and manage the properties, the person can be said to be appointed as an executor by implication.

Probate

It is an evidence of the appointment of the executor and unless revoked, is conclusive as to the power of the executor. The grant of probate to the executor however does not confer upon him any title to the property.

Letter of Administration

It is a certificate granted by the competent court to an administrator where there exists a Will authorizing him to administer the estate of the deceased in accordance with the Will. If the Will does not name any executor, an application can be filed in the court for grant of Letter of Administration for the property

Attestation of Will 

Attestation means signing a document for the purpose of testifying the signature of the executants. Therefore an attesting witness signing before the executants has put his mark on the Will, cannot be said to be a valid attestation. It is necessary that both the witnesses must sign in the presence of the testator but it is not necessary that the testator have to sign in their presence. Further it is not necessary that both the witnesses have to sign at the same time. It is also not necessary that the attesting witnesses should know the contents of the Will. 

Under The Hindu Law

The Hindu Succession Act of 1956 governs the Hindu succession which covers any person who is a (Jain, Buddhist or Sikh). The Hindu law deals with the concept of Joint(Ancestral) and Separate property. This act is a comprehensive system passed by the Parliament of India enacted to amend and regulate the Intestate and Testamentary Succession under the Hindu law but in some cases, the Indian succession act plays a major role.

Under the act, Section 5-29 talks about the intestate succession related with the concept of women as a coparcener(Sections 6 & 7), male interstate and their order of succession(Section 8-13), female intestate and their order of succession (Section 14-16), other relationships and rights (half-blood, full-blood, child in a womb etc) has been dealt under (Section 17-29) of the Hindu succession act.

Part VI of the Indian Succession Act, 1925 starting from Section 57 expressly recognizes the right of a Hindu to dispose of his property according to the will made by him (Testamentary Succession).

This Part applies to all the wills and codicils made by a Hindu, Jain, Si or Buddhist on or after the first day of September, 1870. It does not apply to any will or codicil made before the first day of January, 1866. It is divided into chapters which contain relevant sections related to form and construction of a will, wordings in the will, execution of wills etc. Schedule III provides for sections which are applicable to wills and codicils under Hindu law subject to restrictions.

Earlier women were not treated equally as the male and did not have the same rights in the property but after the amendment in the year 2005 now they are treated equal and possess the same right as the male and now they can also become either a karta or a coparcener after the amendment earlier if which they did not possess the right.

Under The Muslim Law

The Muslim law is governed by its own law own known as the Shariyat. The Muslim law does not recognize the concept of separate property.

There is only one single property with same(general rules such as rule of representation, rule of exclusion, rule of primogeniture, rule of vested inheritance and of spec successions) for both the male and female succession, if a Muslim individual dies without making a will then, after the death of an individual the per the laws the property under his ambit of ownership would be distributed among the legal heirs after deducting some expenses and liabilities after which the remaining property which is also known as the Heritable Property.  The Muslim law for succession constitutes as follows:

1. The Quran,
2. The Ijma,
3. The Sunna,
4. The Qiya,

Distribution Of Property

Under the Muslim law, there are two schools known as the Shia and Sunni school of law. Under the Shia law the property of the deceased person is divided as PER STRIP which also means per relationship their share in the family thus the quantum depends upon the branch in which they are and also the number of people that are present in their branch while under the Sunni law, the heritable property is divided as PER CAPITA which also means per head according to which they get equal share in the heritable property.

Inheritance Under The Sunni Law

1. Sharers,
2. Residuaries,
3. distant kindred. 

The sharers are the person who is directly entitled to a certain amount of share in the property as per capita and it is fixed by Koram(12) and after the sharers if any property is left it goes to the residuary and even after the residuary have taken their shares it will go back again to the shares.

Distant kindred are those relations which are neither sharer nor residuary and property will go to them only if no sharers or residuaries is alive. The right of inheritance in Muslim law comes with birth, a child in a womb does not possess any right, he will have an equal right in the property only if he is born alive in the family and the shaiyat law even talks about the number of shares in cases of a widow with children and other cases and if any person dies without any legal heirs then his whole property goes to the government in the process called as Escheat. 

If a Muslim man or women wants to make a will of his property then he can only make a will of the one-third property and not more than that and the remaining property will go to the legal heirs in depending and if the person wants to will more than one-third property then he has to take the consent of the other legal heirs and if he has not taken the consent of the other heirs and wills more than his right of one-third the share property after his death to the person willed will be only to the extend of one-third.

Inheritance Under The Shia Law

The order of succession under the shia law are as follows:

1. Heirs by consanguinity,
2. Heirs by special case

• Group 1( parents and children and descendants of children)
• Group 2( grandparents, brother and sisters and their descendants)
• Group 3( paternal and maternal aunt and uncles)

Doctrine Of Aul And Radd:

There are cases where arises a situation in which the total sharers exceeds the heritable property, then the share is decreased proportionately. While in the case where the share of sharers is less then the heritable property the remaining part goes to the residuary and if no residuary then it passes on to the distant kindred.

In case of a testamentary succession, the following happens:- (See Here)

Revocation of Muslim Wills:

A will is, by its exceptional nature, revocable. A testator may,  whenever he feels like, revoke his will explicitly or implicitly. In this manner, when the deceased testator demolishes the topic of his inheritance, or totally changes its inclination, or exchanges it to someone else, revocation might be construed.

In any case, the marriage of the testator after the making of the will does not revoke the will. This rule of Muhammadan Law is totally different from the rule under Indian Succession Act, 1925 where marriage of the testator revokes his will.

Lapsing of Legacies:

Sunni Law

If the legatee does not survive the testator, the inheritance lapses and forms some portion of the testator’s estate.

Shia Law

If the legatee does not survive the testator, the inheritance does not lapse but rather goes to the beneficiaries of the legatee. It is just when the legatee has no beneficiaries, that the inheritance lapses.

Abatement of Legacies

Sunni Law

If the bequests surpass the bequeathable third, and the heirs don’t consent, under the Sunni law, the inheritances abate rateably. Inheritances for pious objects are likewise diminished pro­portionately as bequests for common purposes, and don’t have priority over them.

Be that as it may, estates for pious objects are themselves separated into three classes : 

1. mandatory philanthropies, e.g., an inheritance for the execution of Hajj in the interest of the expired; 
2. suggested, yet not required, e.g., an endowment for philanthropy on the below average overshadow those of the third.

Shia Law

This law does not perceive the standard of abatement. Of a few bequests, the first in time prevails until the point that the bequeathable third is depleted. Where a few estates are to be found in a will, need is determined by the request in which they are mentioned. It is to be noted, in any case, that where there are successive bequests of the correct third to two different people, the later inheritance prevails.

Devolution of Inheritance:

A deceased Muslim’s estate vests in his heirs instantly on his death, and it might be distributed among his heirs even before the payment of his debt, unless the estate is indebted. Prior to the distribution of the deceased person’s estate, every one of the heirs are mutually at risk to pay the debt due from the deceased to the extent of the assets received. After circulation, every heir’s liability is proportionate to the share of the assets that goes to his hands.

Position of an Executor of a Muslim Will:

Under the strict Muhammadan law, an executor was simply an administrator to complete the intentions of the testator He was a trustee named by the testator to protect and deal with his property and kids after his demise. He was not the lawful proprietor of the property of the deceased and the property did not vest in him. He had no energy to offer or contract or estrange the property in some other way.

Yet, now, under the provisions of Section 211 of the Indian Succession Act, 1925. an executor of a Muslim’s will is his legal representative for all reasons, and all the property of the deceased vests in him; in this manner, he has the ability to dispose of the property at the appointed time.

Probate of a Muslim will, when Necessary:

A will made as per Muslim law may, after due verification, be conceded in evidence, though no probate has been acquired.

The situation of the executor of a Muslim will is administered by the Indian Succession Act, 1925. The property of the testator vests in him and can be sold and passed on by him, without taking a probate or getting the assent of the considerable number of heirs. (Sec. 307 of the Indian Succession Act, 1925).

Nor is it essential, if there should be an occurrence of intestate succession, that his heirs ought to acquire letters of administration to establish their entitlement to any piece of his property. (Secs. 212 and 213 of the Indian Succession Act, 1925). An oral will may, after evidence, be confessed to probate.

A Muslim whose marriage is solemnized or registered under the Special Marriage Act, 1954, is governed by the exemption made by Sec. 213(2) of the Indian Succession Act, 1925. In a similar manner, a probate isn’t vital, and a succession certificate can be allowed under Sec. 370 of that Act.

The main situation when a title of representation is important is the point at which it is should recover a debt due to the deceased through the Court. No Court can pass a declaration against the indebted person of a deceased Muslim for payment of his debt to a man guaranteeing on succession to be qualified for the impacts of the deceased, or continue upon an application of a man asserting to be so entitled, to execute against such a debtor a decree or an order for the payment of his debt, aside from the production, by the individual so asserting, of a probate or letters of administration or a succession certificate.

Alienation by a Heir of his Share before Payment of Debts:

Indeed, even before the distribution of the estate, an heir may exchange his own particular share, and pass a decent title to a real buyer for a particular value despite the fact that the debts of the deceased are not paid.

A creditor of a deceased Muslim can’t follow his estate under the control of a bonafide buyer for incentive to whom it has been alienated by his heir-at-law. Subject to S. 52 of the Transfer of Property Act, each heir of the deceased Muslim is entitled:-

1. To discard his offer in any way he prefers; and
2. To pass a decent title to a bonafide buyer for a particular value, despite the fact that the debts of the deceased yet stay unpaid.

In this manner, even before the dissemination of the estate:-

1. If any of the heirs exchange his own share to a bonafide transferee for value, or
2. If his offer is sold in execution of an announcement go against him,

It passes a decent title to the transferee or to the buyer, all things considered, despite any debts that may be expected from the deceased.

Legitimacy of Alienation of the Whole Property for Payment of the Deceased’s Debts:

The inheritance of a Muslim vests at his death by a particular title in every individual heir. A sole heir can’t speak for the whole estate of the deceased, and can’t manage the shares of co-heirs without their assent.

Consequently, an alienation of the entire of the property of an expired Muslim by one of his few heirs despite the fact that he is in possession, and regardless of whether it be for the payment of debts of the deceased, isn’t authoritative upon his co-heirs. Such alienation works as an exchange just of his enthusiasm for the property.

Declaration against a Heir, if Binding on Other Heirs:

A creditor’s suit is an administration suit, and any heir in possession of the estate represents the estate for the purposes of the suit. Therefore, if a creditor of a deceased Muslim obtains a decree against some of his heirs, the decree is binding on the other heirs.

However, this would be so only if:

1. The decree was not a consent decree or a decree obtained by fraud; and
2. The heir who is sued is in possession of the estate on behalf of the other heirs, and not on behalf of himself. 

Under The Christian Law

The Christian law of succession is regulated by the Indian Succession Act, 1925. Part IV and V of the Indian Succession Act governs Christian law of succession. Section 2(d) of the act specifically defines an Indian Christian and section 23-49 deals with the Christian succession. Under the Christian law, the concept of separate and ancestral property is recognized. The succession is different in cases of both male and females:

Male Intestate Succession for Indian Christian:

• When the deceased has left a widow but no lineal descendant or a collateral, the widow takes the entire property,
• If there are lineal descendants then the widow takes only one-third share of the property,
• If there are no lineal descendants but there are ascendants and collateral, the widow gets half of the property.
• In the absence of the widow if there are lineal descendants with the different degree then the share will go according to per stirpes and if the lineal descendants are of the equal degree then the share will go according to the per capita rule.
• When there are no lineal descendants then after the share of the widow is deducted, then the remaining half goes to the father of the deceased.
• If the father is dead then it goes to the mother and if the mother is also dead then it goes to the brother and sisters and to their children.
• If the parents of the lineal descendants are not there, then the relatives who are nearest will take the property.

Female Intestate Succession for The Indian Christian:

• The husband of the deceased has some rights which widow has in respect of the husband’s succession in the points mentioned above, the difference is that the widow word is replaced with the term widower.

Intestate Succession for Other than Indian Christian:

• When there are no lineal descendants the widow or widower is entitled to first Rs. 5000/- out of the estate. 
• If the amount is more than Rs5000/-it devolves as follows:
• A Christian dies leaving behind a widow, 2 sons and 2 daughters then the estate would be distributed equally between them.

Testamentary Succession for Indian Christians

Section 59 of The Indian Succession Act, 1925 deals with testamentary succession stating that any person of a sound mind may dispose off his property by a will provided that he is not a minor. It is further expanded to those persons who are blind or deaf or mute and married women who have the capacity to make a will are entitled to dispose off their property by a will. Part VI of the Act includes Sections 57 to 190 deal with all the issues regarding wills and codicils, making and enforcement of wills, formality needed for wills etc. (See Here)

Under The Parsi Law

The special rules of succession under the Parsi laws are governed by the Indian Succession Act, 1925. Section 50- 56 of the act specifically talk about the Parsi laws of inheritance.

Under the concept of intestate succession where there is no will then:

• Any person who inside the womb of mother at the death of father but is born alive after the death of father will have a share which is equal to the share of a person who is alive.
• If a lineal descendant dies before the death of the deceased Parsi without leaving any legal representative then his share will not be in consideration,
• If a widow or widower of any relative marries again during the lifetime of the intestate Parsi, such widow or widower is not entitled to any share in the property of the deceased Parsi.

General Rules

• In case the deceased leaves only either widow and children or only children after his death then the share would be taken as per capita.
• If in case the parents also survive after the deceased death then the fathers share is half of the son and mothers share is half of the daughter while the widow, son and daughter will get the share as per capita.
• If a Parsi dies leaving behind a widow or widower and his lineal descendants then the share that the survivors and the relatives will get has been defined specifically under section 50-56 of the Indian Succession Act.
• Lastly, where there is no relative as Where there is no relative as specified above, the property of the Parsi who has died intestate shall be divided equally among those of the intestate’s relatives who are in the nearest degree of kindred to him.

Gift

A gift is a transfer of existing movable or immovable property made voluntarily and without any consideration by a person called donor to the other person called donee and accepted by or behalf of the donee followed by immediate delivery of possession of the subject matter. Gift is a transfer of property applicable only in Muslim law. 

What Are The Valid Requirements Of A Gift?

There are three main requirements of a gift:-

1. Parties to the gift (donor and donee)
2. Subject-matter of the gift
3. Essential ingredients of making of a gift:
4. Declaration (Ijab) by the donor
5. Acceptance (Qubool) by the donee
6. Immediate delivery of possession (Qabza)

Donor

Any Muslim who is a major, of sound mind, competent to contract and owner of the property is eligible to make a gift of his property. The age of majority is 18 but in case a guardian is appointed, the age of majority is 21. The gift can be made by a woman too.  While making a gift, the financial obligations of the donor are immaterial.

Donee

Any person can be a donee. Even a person:-

1. Who is a minor; or
2. Who is of unsound mind; or
3. Who is incompetent to contract

is capable of being a donee. The donee must be a juristic person who is capable of handling a property. Gifts given:-

1. to an unborn person is void except if it is given in way of maintenance for life and to his male heirs not in existence at that time. 
2. to a child in womb is valid provided he is born within 6 months of making of the gift. 
3. to a non-Muslim is valid.

Subject-Matter Of Gift

Subject-matter of a gift can be a property which can be owned. Property can be either movable or immovable, ancestral or self-acquired, corporeal or incorporeal.

Essentials Of A Valid Gift

Declaration

Offer to make a gift must be declared voluntarily and with free consent. Declaration can be made in form of a will as well. Declaration cannot be made in isolation and has to be made in presence of witnesses or by way of public statement. 

2. Acceptance

The gift must be accepted by the donee if he is competent to accept it himself or by a competent person who can accept the gift on behalf of the donee if he lacks capacity to accept it himself. In case of donee being a minor or person of unsound mind, the gift can be accepted by the guardian of his property. Guardian can be his father or paternal grandfather as executor appointed under the will. Gift can also be accepted by a person other than the guardian.

3. Delivery of Possession

Under Muslim law, a gift is invalid if it is not delivered. It is essential that the owner must completely divest himself of the ownership and control of the property and vest it to the donee. If the gift is of a movable property it must be delivered and in case of an immovable property, the donor must:-

1. vacate the property with his belongings that would signify his relinquishment of total control.
2. put the donor in possession.

The physical departure of the donor and entry of the donee must be shown.                     In case of an immovable property not in possession of the donor at the time of making a gift, he can complete the gift by some overt act which shows his bonafide intention. 

There are some exceptions to the rule that gift is invalid if it is not delivered:-

1. Gift made by a husband to his wife or vice versa.
2. Gift from a father to the minor child or by guardian to the ward. 
3. Donor and donee reside at the same property which is the subject matter of the gift.
   

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To know more about, laws of taxation for AIBE, please Click Here

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 AIBE: Guardianship, Adoption and Succession under Family Law appeared first on iPleaders.

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

There are many regrets I have about how I did not use my time optimally while I was in law school, due to lack of perspective.

Do not get me wrong, I was very very productive in law school from 2nd year onwards. I worked very hard, and I used to say that I work in 3 shifts. One shift was academic work, and I did fairly well academically. This included preparation to make my dream come true, which is to join a good law firm at a top salary. I achieved that. I had multiple offers from top law firms, and technically got the highest salary package (it was just a few thousands more than the 2nd highest) from an Indian law firm during the day 0. 

The second shift was my work as a freelancer, which I did to earn money. I mostly worked with a law entrance coaching, managing a team of about 20 freelancers, creating content, offering classes and delivering promotional campaigns to increase enrollments. It worked really well, and I was the best in business. I made some serious money every month from this. I could afford to pay my college fees on my own, afford a good lifestyle and even travel abroad once a year thanks to my earnings.

Apart from this, in the 3rd shift, I worked on building a company. It was just a blog at first, iPleaders blog. Today, of course, it draws over 1 crore unique readers a year, but back then I didn’t even get a thousand readers!

Nonetheless, I didn’t only blog, I also went and met entrepreneurs, attended events, tried to land speaking gigs and paid work. It sometimes worked, though it was hard to convince people to give you professional work when you are only a student. Nothing deterred me though, I kept at it.

Overall, my college days were very productive, instructive and full of learnings and opportunities for growth. It was one of the most productive periods of my life and set me up for bigger success later. When I was working insane hours at a law firm, later on, I did not feel the same thrill, didn’t experience that level of growth or intellectual satisfaction, which was a major reason behind me jumping ship to start my own venture after 12 months in a law firm Trilegal.

However, even then, I regret not learning something that I wish I had learnt while I was in college.

There are 3 subjects I wish I had spent more time and effort learning, which would have really helped me a great deal in the future. All these 3 laws are massive in scope, and I am not talking about learning a few sections and case laws. I passed these exams with flying colors, and definitely, have a functional knowledge of all 3.  

But I am talking about a deep, practical and expert level understanding of the subjects. Knowledge of these 3 subjects can help you a great deal no matter what you do in life, including being a startup entrepreneur like me. On top of that, if you are a lawyer, these 3 subjects will make you stand out amongst your colleagues, and earn their respect, whether you are into M&A and transactions, or dispute resolution and litigation, or even IP law for that matter.

I want to tell you what and why of these 3 subjects, so you do not make the mistake I made. Also, in case you are already a lawyer with significant years of experience and still do not have absolute clarity on these subjects, you need to pay attention, too.

Company Law

Company law is like an ocean. It cannot be covered in one semester in college. Even 2 or 3 semesters cannot be enough for this humongous subject. However, it is an extremely important and very rare skill. It is incredible how many lawyers are practicing in big law firms or in-house legal departments of top companies without having a comprehensive knowledge of company law. 

And this is why those colleagues who have mastered company law are sought after. Want to impress someone in an interview? Tell them that your favorite area of law is company law and you have written over 10 articles on various aspects of company law. They would first be suspicious about it and definitely test you. This is because very few people know company law well. If it turns out that you are actually really great at it, you would earn their genuine admiration and respect.

It is no different when it comes to corporate clients. Directors, CEOs, promoters of companies, all of them are forced to learn a lot of company law and corporate governance. The first thing that they test a lawyer about is their knowledge of company law. If you are knowledgeable about company law and you can guide them about the practical problems they are facing, it will go a very long way for you.

It becomes even more critical for all those who work in in-house roles. I would say that how fast you progress in in-house teams depends a great deal on your knowledge of company law. Even if you are great at your work, and your work does not involve much company law, I humbly request you to make sure you take out som2e time to get expert-level knowledge of company law.

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CPC

Another gigantic and very daunting subject is the Civil Procedure Code. When in college, I found this subject incredibly boring though it was taught by a very sweet retired judge. While we understood the concepts, I never acquired a thorough understanding of the hundreds of sections and orders stuff the way, say, I mastered contract law or even the IPC or CrPC. I was so bored and scared of CPC that I usually used to write poems in CPC class. Some of those poems went on the become famous in the Bengali cyberspace of the day, but that did not at all help my knowledge of civil procedure.

I think I managed to read through the bare act once, and thanks to good class notes scored the maximum possible GPA in the subject. But what one requires is a deep understanding of the subject to really help clients, not only in litigation but also in arbitration or even while drafting contracts. If you do not fully understand the cost and time involved in enforcing a contract, can you really do justice to your clients while managing a transaction? This is a big problem with many transaction lawyers that they do not fully comprehend the impact of the clauses they are putting into a contract.

If you knew a clause will take 10 years to litigation to implement, will you really fight tooth and nail to get it into your transaction documents? That’s a call you need to take based on the size of the transaction as well as the importance of the clause, but when you do not understand enough about civil litigation, I would say that you are not really ready to lead a transaction.

And of course, not knowing CPC is suicidal for a litigator or arbitration lawyer. You better spend time to learn the ins and outs of civil procedure to really stand out as a litigator or arbitration lawyer. The ability to get relief for your clients will depend a great deal on your mastery of CPC.

Even now I try to learn as much as I can about CPC because it has a bearing on almost every dispute. As the business grows, so does various kinds of disputes, and knowledge of civil procedure can make a great deal of difference in planning and execution. 

Corporate Tax 

Death and taxes are unavoidable, everyone has to pay taxes. However, for corporates, it is a very big deal. With one tweak, they can save millions or even billions on taxes. Companies cannot afford to screw up on their taxes. They spend millions of dollars on tax advice, tax litigation and tax structuring. 

Tax law is also one of the best areas of practice with the least competition. And really good pay.

Not everyone is meant to be a tax lawyer though. The rest of us still need to learn about tax, because our clients will always ask us all kinds of questions about tax and our won work often get affected by tax implications.

Ask any M&A lawyer or investment lawyer, can they ever structure a deal without knowledge of tax laws? Would a divorce lawyer not have to advice her clients on whether tax is to be paid on alimony? For example, did you know that you need to pay income tax on alimony that is paid on a monthly basis, but not on lump sum alimony received in lieu of monthly maintenance? Can you truly make the right call without knowledge of this small piece of law? 

It is no different for any lawyers, we all need to have some understanding of tax laws, but especially about corporate tax if you want to work for lucrative corporate clients. Pity be upon those IP lawyers or tech lawyers who are clueless about the tax aspects of an IP assignment or technology transfer agreements! They are almost certain to fall into one trap or the other from time to time.

So yeah, having a good knowledge of tax law goes a long way for all lawyers, even though tax law is not their mainstay!

Make an effort to learn more about it, and you will not regret.

Do you find it too hard to learn these subjects?

It is hard to read from a bare act or a commentary that just explains sections. It is hard to study company law, CPC or Tax laws because you do not get the perspective. We have been asked to memorize sections and case law! That doesn’t help.

What if you could learn based upon practical assignments that are designed as per real-life matters that arise frequently? Neuroscience suggests that you can learn faster and remember things much better when you learn experientially.

We have created courses that can teach you these subjects in a fresh new way, in a very limited time, through practicing simulation exercises of different kinds.

Just check out the syllabus and weekly exercises and you would understand how much you can benefit from these courses. Check out these links below:

Company law course

Civil litigation course

Tax law course

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The post What I Wish I had Learned Better While I was Still in Law School appeared first on iPleaders.

Find out the 50 LEADING CASES ON FAMILY LAW which will help in your preparation of AIBE.

Mohd. Ahmed Khan vs Shah Bano Begum And Ors 1985 SCR (3) 844

It was a controversial maintenance lawsuit. In this case, Supreme Court granted the maintenance to a divorced muslim woman irrespective of what the Muslim personal law says. Supreme Court held that Section 125 of CrPc is also applicable on Muslims. Supreme Court concluded that Cr.P.C. is a secular law and “there is no conflict between the provisions of section 125 and those of the Muslim Personal Law on the question of the Muslim husband’s obligation to provide maintenance for a divorced wife who is unable to maintain herself.” A muslim woman is entittled for the maintainance even after the period of iddat.

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Ahmedabad Women Action Group (AWAG) v. Union of India (AIR (1997) 3 SCC 573

The court was of the opinion that India and Indians have been governed by personal laws, regardless of the time period. It was of the opinion that an interference by the court would lead to several undesirable outcomes, as the adjudication of personal laws was beyond the jurisdiction of the courts. The petition was therefore dismissed.

Danial Latifi and another v. Union of India (2001) 7 SCC 740

The court held that the Muslim Women (Protection of Rights on Divorce) Act, 1986, which provided that under section 3(1)(a), a divorced woman is entitled  to reasonable and fair provisions, and maintenance within the ‘iddat’ period is not in violation of Article 14 and 21 of the Indian constitution.

Shamim Ara v. State of U.P. (MANU/SC/0850/2002)

In this case the Supreme Court was of the view that the mere plea of a Talaq, would not validate the same. There Quranic procedures of obtaining a Talaq need to be fulfilled, i.e., Talaq has to be pronounced in the Quranic injunction.

Shayara Bano v. Union of India and others

Supreme Court in 2017 in a historic and landmark judgment declared “Triple Talaq” unconstitutional. The Apex Court said, “Given the fact triple talaq is instant and irrevocable, it has no scope of arbitration which is essential for saving marriage ties. Hence, it is clear that this form of Talaq is manifestly arbitrary in the sense that the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it. The court invalidated Section 2 of Shariat Application Act, 1937 to the extent it enforces “triple talaq”.

Sushil Kumari Dang v. Prem Kumar

Here, a petition for restitution of conjugal right is filed by the husband and the husband accuses his wife for adulterous conduct. Following which he filed another petition for judicial separation which shows the extent of his sincerity and interest in keeping the wife with him. So, the Delhi High Court set aside the decree of restitution granted by the lower court.

Yousuf v. Sowramina

It was held that at times, the determination of the question whether in fact a marriage has broken down or not is left to the courts. At other times, the legislature lays down the criterion of breakdown of a marriage and if that is established, the courts have no option but to dissolve the marriage.

Ankush Narayan v. Janabai

Court held that on adoption by a widow, the adopted son becomes the son of the deceased adoptive father and the position under the old Hindu law as regards ties in the adoptive family is not changed.

Guradas v. Rasaranjan

Adoption is made when the actual giving and taking had taken place and not when the religious ceremony is performed like Datta Homam.  For a valid adoption, it would be necessary to bring on records that there has been an actual giving and taking ceremony.

Harvinder Kaur v. Harmander Singh Choudhary

In this case, the court rejected the plea that personal law was discriminatory towards Gender inequality in India. It also observed that introduction of Constitutional law into the home (referring to personal laws) was most inappropriate.

Jijabai v. Pathan Khan

Where the father and mother had fallen out and the mother was living separately for over 20 years and was managing the affairs of her minor daughter the apex Court observed though the father was alive but he was not taking any interest in the affairs of the minor and should be treated as if non-existent, and, hence, the mother is  the natural guardian of the minor’s person as well as property.

Sitabai v. Ramchandra

So there may be relationship by implication in the other cases also. The Supreme Court has also held that a son adopted by the widow of the deceased coparcener will also be a coparcener with the surviving coparceners of the deceased husband.

Sarla Mudgal vs. Union of India

The Court held that if a Hindu converts to Muslim and then have a second marriage, he can not do so, irrespective of the fact that polygamy is allowed in Islamic Law.

R.Virupakshaiah v. Sarvamma & Anr

Property inherited by a Hindu from his father, father’s father or father’s fathers’ father, is ancestral property.

Dipo v. Wassan Singh & Others

A person who has to inherit property from his  immediate paternal ancestors up to 3 lines, holds it in coparcenary and to other relations he holds it and is entitled to hold it, as his absolute property. Hence, the property inherited by a person from any other relation becomes his separate property.

Chanmuniya  v. Virendra Kumar Singh Kushwaha

Considering Sec 7 of the Hindu Marriage Act, 1955 the marriage performed in absence of customary rites and ceremonies of either parties to marriage is not valid. And Mere intention of the parties to live together as husband and wife is not enough. Further, there is no scope to include a woman not lawfully married within the expression of ‘wife’ in Section 125 of the Code should be interpreted to mean only a legally wedded wife.

Vaddeboyina Tulasamma v. Vaddeboyina Shesha Reddi, 1977 SCR (3) 

The Supreme Court in this case highlighted the Hindu female’s right to maintenance as a tangible right against property which flows from the spiritual relationship between the husband and wife. The Bench comprising of Justice P.N. Bhagwati, Justice A.C. Gupta and Justice S.M. Fazal Ali held that Section 14(1) of the Hindu Succession Act, 1956 must be liberally construed in favour of the females so as to advance the object of the Act. This section makes female Hindu a full owner of a property, instead of a limited owner of the property.

Mrs. Mary Roy Etc. v. State Of Kerala & Ors, 1986 AIR SC 1011 

The Supreme Court in this case held that Christian women are entitled to have an equal share in their father’s property. This path-breaking judgment sent shock waves throughout the country. Till then, Christian women in Kerala were governed by the provisions under the 1916 Travancore-Kochi Christian Succession Act.

Under this Act, a Christian daughter can inherit only one fourth of the share of the sons in her father’s property. The Bench comprising of Chief Justice P.N. Bhagwati and Justice R.S. Pathak gave a liberal interpretation that benefited the Christian women in Kerala and brought them within the ambit of the Indian Succession Act, 1921.

Lata Singh v. State of Uttar Pradesh,  2006 (6) SCALE 583 

Noting that there was no bar to inter-caste marriage under the Hindu Marriage Act, a Division Bench of the Supreme Court comprising of Justice Ashok Bhan and Justice Markandey Katju observed that since there was no dispute about the petitioner being a major, “she was free to marry anyone she likes or live with anyone she likes“.

Velusamy v. D. Patchaiammal, (2010) 10 SCC 469

The Supreme Court, in this case, held that Live-in relationships will also come under Domestic Violence Act 2005 . It is held that ‘not all live in relationships will amount to a relationship in the the nature of marriage to get the benefit of the Act of 2005.

Roxann Sharma v. Arun Sharma, Civil Appeal No. 1967 OF 2015 

The Supreme Court in this case held that in a in a battle between estranged parents, for the custody of minor child, who has not completed five years of age, shall be allowed to remain with the mother. The Bench comprising of Justice Vikramajit Sen and Justice C. Nagappan held that in such cases child should not treated as a “chattel”.

Seema v. Ashwani Kumar, AIR 2006 S.C 1158 

The Supreme Court in this case directed the State Governments and the Central Government that marriages of all persons who are citizens of India belonging to various religious denominations should be made compulsorily registerable in their respective States where such marriages are solemnized. The Bench, comprising of Justice Arijit Pasayat and Justice S.H. Kapadia also directed that as and when the Central Government enacts a comprehensive statute, the same shall be placed before that Court for scrutiny.

Neeraja Saraph v Jayant Saraph (1994) 6 SCC 46

The Supreme Court gave some important obiter observations in this case:

1. No marriage between a NRI and an Indian woman which has taken place in India may be annulled by a foreign court. 
2. Provision may be made for adequate alimony to the wife in the property of the husband both in India and abroad.
3. The decree granted by Indian courts may be made executable in foreign courts both on principle of comity and by entering into reciprocal agreements like Section 44-A of the Civil Procedure Code which makes a foreign decree executable as it would have been a decree passed by that court.

Dhanwanti Joshi v Madhav Unde (1998) 1 SCC 11

The Supreme Court had the occasion to decide the custody of the child when he was more than 12 years old and decided that even though the father may have obtained custody from the US court, the best interests of the child demanded that the child be allowed to continue to stay with the mother in India who had brought up the child single handedly in India, subject to visitation rights of the father. 

ROXANN SHARMA V/S ARUN SHARMA CIVIL APPEAL No. 1966 OF 2015

In a remarkable judgment dealing with interim custody of child suffering in parent’s matrimonial disputes, visitation rights and guardianship, a 2 judge bench of Supreme Court laid down various propositions of law while awarding the interim custody till final disposal by the trial court to the mother.

The bench speaking through Justice Vikramjit Sen, lays down very sharp observations and examines various definitions of a ‘guardian’, ‘visitation rights’ and tests the issue from the angle of provisions of Hindu Minority & Guardianship Act, 1956 and Guardian & Wards Act, 1890.

Saroj Rani v Sudarshan Kumar

In this case the constitutionality of Section 9 of Hindu Marriage Act was challenged. Petition was filed by the wife for a restitution of conjugal rights under Section 9 of the Hindu Marriage Act,1955. Her husband consenting to the passing of a decree for the same was passed.

After a period of 1-year husband filed a petition under Section 13 of the Hindu Marriage Act,1955 against the appellant for divorce on the ground that though one year had elapsed from the date of passing the decree for restitution of conjugal rights as no actual cohabitation had taken place between the parties. The Supreme Court upheld the constitutionality of Section 9 by saying that it serves a social purpose as an aid to the prevention of break-up of the marriage.

Dr. Surajmani Stella Kujur v. Durga Charan Hansdah, AIR 2001 SC 938

In this case, the Supreme Court described who is a “Hindu” for the purposes of the applicability of the Hindu Marriage Act, 1955. The Act, is, therefore, applicable to: “(1)All Hindus including a Virashaiva, a Lingayat, a Brahmo, Prarthana Samajist and an Arya Samajist (2) Budhists (3) Jains (4) Sikhs”

Asha Qureshi v. Afaq Qureshi, AIR 2002 MP 263

The Court held that a person is entitled to a decree of nullity under Section 25(iii) of the Hindu Marriage Act on grounds of fraud as described in Section 17 of the Indian Contracts Act.

Amardeep Singh v. Harveen Kaur (Supreme Court)

The Supreme Court held that the period mentioned in Section 13B(2) is not mandatory but directory, it will be open to the Court to exercise its discretion in the facts and circumstances of each case where there is no possibility of parties resuming cohabitation and there are chances of alternative rehabilitation. The Court also stated that such proceedings can also be conducted through video conferencing.

Suman Singh v. Sanjay Singh (Supreme Court)

In the case, the husband had pleaded 9 instances which, according to him, constituted “cruelty” within the meaning of Section 13(1)(i-a) of the Hindu Marriage Act  entitling him to claim dissolution of marriage against the appellant. The court held that Few isolated incidents of long past and that too found to have been condoned due to compromising behavior of the parties cannot constitute an act of cruelty within the meaning of Section 13(1)(i-a) of the Hindu Marriage Act.

Balveer Singh v. Harjeet Kaur (Uttarakhand High Court)

While deciding this issue, the High Court referred to the impugned provisions and made the following key observations in the case:

1. That on a simple reading of Section 9 of the Hindu Marriage Act, 1955, it has altogether a different purpose. The purpose of Section 9 of the Hindu Marriage Act, 1955 is to meet a contingency. 
2. Section 9 of the Hindu Marriage Act, 1955 and Section 13-A of Hindu Marriage Act, 1955 are framed to meet a separate set of contingencies. 
3. If Section 9 of the Hindu Marriage Act, 1955 is either decreed or dismissed, it will not take away a right of a party to file Section 13-A of Hindu Marriage Act, 1955 for dissolution of marriage at any subsequent stage.

Mrs. Christine Lazarus Menezes v. Mr. Lazarus Peter Menezes (Bombay High Court)

The Court noted that if the Criminal Complaint filed by the appellant wife against her husband was false and was filed only to bring back her husband and consequent to which he was arrested and was in jail for about 7 days, it would constitute a clear case of cruelty by the wife against her husband.

Natubhai Somabhai Rohit v. State of Gujrat & Anr. (Gujrat High Court)

The Court also relied on Supreme Court’s verdict in G. V. Rao vs. L.H.V. Prasad wherein the Court stated that a complaint relating to matrimonial dispute where all the members are roped into irrespective of role, becomes liable to be quashed.

Amar Kanta Sen v. Sovana Sen, AIR 1960 Cal. 438

In this case there was dissolution of the marriage on the ground of adultery of the applicant. The applicant’s case that her husband had committed adultery was found to be not supported by evidence.  Supreme Court in this case held that when a wife deliberately persist on not getting a job even she easily can, is an undue advantage. The court only allowed starving allowance in this case.

Shanti Devi v. Govind Singh

The Court held that for constituting ‘desertion’ two essential conditions must be fulfilled namely (i) the factum of separation; and (ii) the intention to bring cohabitation permanently to an end.

Meghanatha Nayyar v. Smt. Susheela

The Madras High Court had observed that “Section 14 provides restrictions presumably designed to prevent party from taking recourse to legal proceedings before the parties have made real effort to save their marriage from disaster. It is founded on public policy because marriage is the foundation of civil society and no part of the laws and constitution of a country can be of more vital importance to the subject than those which regulated the manner and conditions of forming and if necessary, of dissolving marriage contract.

Githa Hariharan v. Reserve Bank of India (1999) 2 SCC 228 

It is pertinent to note that sub-section (c) of Section 4 provides that a natural guardian means a guardian mentioned in Section 6. This definition section, however obviously in accordance with the rule of interpretation of statute, ought to be read subject to Section 6 being one of the basic provisions of the Act and it is this Section 6 which records that natural guardian of a Hindu minor, in the case of a boy or an unmarried girl, is the father and after him the mother. 

Chand Patel v. Bismillah Begum, 1 (2008) DMC 588 (SC)

The Supreme Court that a Muslim’s marriage to his wife’s sister may be , while the earlier marriage still subsists, will be irregular but the second wife and children are entitled to maintenance. The Muslim personal law prohibits “unlawful conjunction”- a man cannot marry his wife’s sister in her lifetime or till the dissolution of their marriage but that doesn’t affect her entitlement to maintenance.

Masroor Ahmed v. Delhi (NCT) 2008 (103) DRJ 137 (Del.)

The Delhi HC in this case elucidated the various modes of dissolution of marriage under Muslim Law. The Hon’ble Court elaborated Section 2 of the Muslim Personal Law (Shariat Application), 1937.

Dharmendra Kumar v. Usha Kumar, AIR 1977 SC 2213 

The relief which is available to the spouse against whom a decree for restitution of conjugal rights has been Passed cannot reasonably be denied to the one who does not insist on compliance with the decree passed in his or her favour. In order to be a “wrong” within the meaning of s. 23(1)(a) the conduct alleged has to be something more than a mere disinclination to agree to an offer of reunion, it must be misconduct serious enough to justify denial of the relief to which the husband or the wife is otherwise entitled. Mere non-compliance with a decree for restitution does not constitute wrong within the meaning of section 23(1)(a).

Nachhattar Singh v. Harcharan Kaur AIR 1996 Punjab and Haryana 201

If both the parties had voluntarily consented to file the petition for dissolving the marriage by mutual consent and all the other conditions mentioned in sub-sec. (1) of S. 13B of the Act are fulfilled, it will not be open to a party to withdraw the consent. In the present case without making an inquiry under sub-sec. (2) the trial Court has dismissed the petition as withdrawn which could not be done merely on the asking of one party.

Sureshta Devi v. Om Prakash, 1 (1991) DMC 313 (SC)

The SC settled the controversy by ruling that at the time of second motion under Section 13(B) HMA, one of the parties of the marriage withdraws the consent given to the petition, then decree for divorce on mutual consent cannot be passed.

Bipinchandra Jaisinghbai Shah v. Prabhavati, AIR 1957 SC 176 

The SC held that for the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, namely (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. 

Swaraj Garg v. K.M. Garg, AIR 1978 Del. 296

It is true that under the Hindu law, it is the duty of the husband to maintain his wife, but the wife is not under a corresponding duty to maintain her husband. This also is due to the fact that normally the husband is the wage earner. If, however, the wife also has her own income it will be taken into account and if her income is sufficient to maintain herself the husband will not be required to pay her any maintenance at all. 

Padmja Sharma v. Ratan Lal Sharma, AIR 2000 SC 1398

The obligation of a person to maintain his or her aged or infirm parents or daughter who is unmarried extends insofar as the parent or the unmarried daughter, as the case may be, is unable to maintain himself or herself out of his or her own earnings or other property.

Gohar Begum v Suggi, (1960) 1 SCR 597

The court held that in Muslim law, the mother is not a natural guardian even of her minor illegitimate children, but she is entitled to their custody.

Mambandi v. Mutsaddi, (1918) 45 Cal 887

The court held that a father’s right of guardianship exists even when the mother, or any other female, is entitled to the custody of the minor. The father has the right to control the education and religion of minor children, and their upbringing and their movement. So long as the father is alive, he is the sole and supreme guardian of his minor children.

Vandana Shiva v. Jayanta Bandhopadhaya

The Supreme Court has held that under certain circumstances, even when the father is alive mother can act as a natural guardian. The term ‘after’ used in Section 6(a) has been interpreted as ‘in absence of’ instead ‘after the life-time’.

Itwari v. Asghari, AIR 1960 All. 684

The court held that  Even in the absence of satisfactory proof of the husband’s cruelty, the Court will not pass a decree for restitution in favour of the husband if, on the evidence, it feels that the circumstances are such that it will be unjust and inequitable to compel her to live with him.

N.G. Dastane v. S. Dastane, AIR 1975 SC 1534 

Five tests were laid down in determining whether a given conduct amounts to legal cruelty. They are the following:

1. The alleged acts constituting cruelty should be proved according to the law of evidence;
2. There should be an apprehension in the petitioner’s mind of real injury or harm from such conduct;
3. The apprehension should be reasonable having regard to the socio-economic and psycho-physical condition of the parties;
4. The petitioner should not have taken advantage of his position;
5. The petitioner should not by his or her conduct have condoned the acts of cruelty.
   

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To know more about, laws of taxation for AIBE, please Click Here

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 AIBE: Leading Case Laws of Family Law appeared first on iPleaders.

Authored by Mariya Paliwala, 7th semester, student at University College of Law, MLSU, Udaipur, Rajasthan.

Introduction

In India, the laws pertaining to the grant of gun license are governed under Section 3, 4, 13, 14, 15, 16, 17 and 18 of the Arms Act of 1959 and the Arms Rule of 1962, Arms Rules 1962 and Arms Rule 2016. These Acts prescribe the stringent and expensive procedure for the citizens to procure the license for possessing guns. According to 2016 Article posted by the Washington Post, it was stated that India is a country which has stricter laws than America. Further, it also stated that the probability of an American getting killed by firearm is 12 times more than that of an Indian citizen. 

Necessary reasons demanded by law for the possession of guns

Before knowing the procedure for getting the gun license, it is important for the readers to know that on what basis the civilians can apply for guns in India. From Section 35 to 46 of Arms Rule 2016 specifies special category for issuing the license namely:

1. License for the destruction of wild animals which poses a threat to human beings and crops. This comes under the protection of life and property which is, in turn, a reason for self-defence. 
2. License for the purpose of target and training purpose (the trainer must be an adult and the trainee must not be below 15 years of age and not above 21 years of age).
3. License for sports shooting association.
4. License for shooting ranges.
5. License for accredited trainers.
6. Quantity of ammunition for sports person, shooting associations etc.
7. License to museums.
8. License for arms and ammunitions for theatrical, film or television production. 
9. License to an international shooter, who has come to India for participation at shooting events in India.
10. Acquisition, possession and export of arms or ammunition by tourists visiting India.
11. License for firemen free zone.

Apart from the reasons stated above self-defence, corp protection and sports are the other reasons to get the gun license in India.

Self-defence 

It is often said and believed that using a weapon for an offence is considered immoral but using it for the sake of self-defence is justified. The procedure for granting of gun licenses on the ground of self-defence is extremely difficult and stringent, therefore they are allowed in extremely special cases, a person applying for the license must have a strong reason and must have filed a First Information Report (FIR) prior to the application.

In case of women living in metro cities who are given priority on the condition that they are experiencing a threat to their life. However, for the sake of safety they may just possess Taser guns, which does not require any license. 

Corp protection

People who work in security and guarding agencies are given the license only on the condition that they will use for the security purpose at work and no other.

Sports 

A person getting the license for the reason of sports needs to be a fulltime sports person. Moreover, they can get a license for target shooting and other games. 

Procedure to be followed

Before following the procedure a person needs to fulfil the basic age criteria that a person must not be less than 21 years of age, he must be of sound mind and must have a justified reason for acquiring a gun license. After these basic conditions are confirmed the following procedure must be followed for acquiring a gun license in India:

Filing of an application

Section 13(1) of the Arms Act 1959 pertains to the procedure of application, which must be in accordance with Chapter II of Arms Act 1959 and also the prescribed fee must be paid. Moreover, gun license formalities are available at the Indian Ordnance Factories. 

Call for the report

Section 13(2) of the Arms Act 1959 empowers the licensing authority to call for the detailed report made by the police officer of the nearest police station within a prescribed time period. In case the police officer fails to submit the report then the licensing authority may use its discretion and may either approve the application or refuse it. 

License for different purpose 

In case of self defence the license for smooth bore gun can be granted. However, in the case of sports and crop protection the license for muzzle loading gun can be granted. If in case the licensing authority is satisfied that muzzleloading gun is not sufficient then it may grant a license for any other gun. 

Satisfaction of Licensing authority

After undergoing all the due procedure and most importantly after the licensing authority is satisfied with the justification given in the application, the license for specific purpose is granted.

Rules regarding ancestral guns

A license for a gun can be transferred by the person after his death to his legal heirs after following due procedure which is as follows:

1. A license holder may make an application on a plain paper and this paper must be attached to Form A.
2. Moreover, if the original license is expired then the application of its renewal can be made in Form A. All it requires is 2 passport size photos and non objection of heirs.

Circumstances under which the license may undergo variation, suspension and revocation

The following procedure for variation, suspension and revocation is prescribed under Section 17 of the Arms Act, 1959. 

In case the holder of a license is prohibited

If in case the licensing authority is satisfied by the fact that the holder of the license is prohibited under this Act or under any other law, or Statute abstaining him from possessing or acquiring or carrying any arms or ammunition for the time being in force. 

Necessary for peace and order

If the licensing authority feels that it is necessary for peace, security and public safety, it may suspend or revoke it the license. 

Fabrication of information 

If the licensing authority confronts with the fact that the license holder hides some information or has given false or wrong information it may suspend or revoke his license. 

Beach of a condition

If in case any condition for giving license is contravened and breached or there was a non-compliance of the notice by the holder of a license. 

Application for revoking of license

The holder himself has given the application for revocation of license to the licensing authority.

Holder convicted by the court

When the holder of the license is convicted by the court, then his license may be suspended or revoked. 

Hence, the High courts, appellate courts, the central government has the power to suspend the license. The holders are supposed to submit their license to the authority as soon as it is suspended or revoked.

Renewal of license

For the renewal of arm license holder may write an application to the district magistrate in the format prescribed below:

Latest development regarding arms rule in India 

The government has come up with the latest Arms Rule 2016 which supersedes Arms Rules 1962, every person who is applying for the license must undergo a prior procedure:

1. Arms and ammunition safety training course, which involves basic arms and ammunition safety practices like firing technique and procedure, safe handling and carry procedures, care of arms and ammunition and their safe storage and transportation.
2. The defence rules say that the granting authority will grant the license to only those people who have an immediate threat to their life because of the geographical reasons pertaining to the residents near borders or frequent chances of attacks by militants. Apart from them, people holding important public office like a government official, MLA, MP or their family members may be given the license. 
3. According to the new rule, the granting authority must ask for a report from the nearest police station and after receiving the report he must agree or refuse to grant license within sixty days after the submission of the report.

Who can become a gun dealer?

A person who is willing to take the license must give written notification to the nearest police station. Further, a person needs to fill the ATF form which asks for the details including business name, contact details, tax ID number and zoning description. Then the application must be taken to the nearest law enforcement agency for the fingerprint, which may charge a fee, which differs from place to place. For fulfilling a procedure a fee is applicable and after the fulfillment of the procedure a person gets call for interview from ATF and if the AFT is satisfied then a gun dealer gets approval.

How to get gun shop license?

The gun dealers has been granted a license after filling the Form XI, XII, XIII or XIV shall be issued a composite license in Form VIII for the gun shop and also for the deposit of arms. These licenses are issued by the state government and renewed by the District Magistrate. Moreover, a dealer who wish to extend a service of the repairs of firearms have to obtain a license by filling a Form IX/ IX-A whichever is applicable.

Who can acquire guns without license?

Defence Service Rules empowers the defence personnels to have a gun without a license. Besides firearms issued under their service the military officials are given the privilege to keep one personal firearm. The only condition is that they need to inform about the same to their Commissioned Officer (CO) and make their CO enter the details including serial number of that gun in the register. 

Gun From for different locations

Procedure to obtain license for the trade in Guns

Generally, it is a norm that a citizen can not import or export the guns based on the foreign trade policies. However, every general rule has certain exceptions and in this case also we have the exceptional circumstances, which allows to import any item from another country:

• Primarily an importer must have a due permission from the concerned authority.

• In order to know the procedure for getting permission from the licensing authority the importer must immediately contact the government agency.

• Custom clearance certificate is the most essential document, under the import of the good. Moreover, the origin of the certificate must also be very clear. 

• The imports of the goods from the least developed countries need to be certified before the export.

How many guns can be owned with one Gun license

On one arms license, a holder may own more than one gun. However it is conditioned that, each type of firearm needs to be exclusively endorsed after taking due permission from the license authority. The license holder may own a maximum of 3 firearms at a single point in time. 

Conclusion

Therefore, it can be concluded that Indian laws on firearms are very strict and curbs the urge of Indians to embody in themselves the American trend of acquiring guns. In this regard American laws are very lenient whereas Indian laws regulate a very lengthy and stringent procedure. Strict arms laws in India are the reason of elaborated debates and rebuttals.

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

The post How to get Gun License in India? appeared first on iPleaders.

If you want to work as an independent lawyer, performing contract drafting work is the most feasible route to develop your own clients. 

Unlike litigation, where the highest reputation is enjoyed by a limited number of senior practitioners at the relevant court/ tribunal, and where clients prefer to only brief such lawyers for important matters, contract drafting work can be relatively more democratic. 

A junior lawyer who is starting out his or her own practice is capable of obtaining contract drafting mandates of twenty to fifty thousand rupees from a single client for a single contract.  

If you are a litigator and want to earn on the side, contract drafting is a handy skill. Existing clients who are satisfied with your work are likely to put their faith in you for drafting work too,  as you have handled their disputes well.  

Imagine if you could do this month on month. How would it boost your practice?

Similarly, if you want to be a freelance lawyer, live in a nice beach town and yet make money from a thriving legal practice, contract drafting work is likely to be your bread and butter. As long as you are available on virtual conferencing tools and your cell phone, clients these days will not have a concern about where you operate from.

If you want to work in a corporate law firm, contract drafting skills are essential to perform most kinds of transactional work at a corporate law firm, whether it is in banking and finance, M&A, project finance or the capital markets practice.

Even in a slow economy or a downturn, so long as business transactions are taking place, people need lawyers and consultants to advise them on contracts.

If you are a CA, CS or a specialized consultant, your existing clients may ask you to review existing contracts and provide strategic inputs, even if you do not draft them.   

To be able to fulfill any of the above visions for yourself, you will need to answer several questions, such as: 

• How should you obtain and perform contract drafting work? 
• What makes a client trust you enough to give you the work? 
• How is your value proposition different from what is already available on the internet, or from the services of other practitioners? 
• How should you respond to a client who thinks that getting a free template off the internet is all that is required? 

Join us for a session on Thursday (3rd October 2019) at 8 PM. It is a free session, and I promise that you will learn a lot. You will get a sense of how practical and insightful our live classroom sessions are, and you will totally love it.

The link for the Webinar will be shared on Thursday.

The broad agenda for the class is:

• ‘Scientific’ methods to ensure your drafts are reliable
• How to connect the business of a client to a contractual model and obtain mind-blowing results
• Influence of the statutory framework on contract terms 
• How to identify risks in a contract and point out to the client to establish trust  
• The contract drafting delivery cycle
• How to personalize the client’s experience when you perform contract drafting work 
• How to create your own templates for different kinds of deals  

Join our Telegram group for the webinar link. Here is the link to join.

Here are the courses in which we are taking admission in this month:

DIPLOMA 

Diploma in Companies Act, Corporate Governance and SEBI Regulations

Diploma in Entrepreneurship Administration and Business Laws

EXECUTIVE CERTIFICATE COURSE

Certificate Course in Real Estate Laws

Certificate Course in Arbitration: Strategy, Procedure and Drafting

Certificate Course in Securities Laws, Insider Trading and SEBI Litigation

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

Certificate Course in Legal Practice Development and Management

Certificate Course in Advanced Civil Litigation: Practice, Procedure and Drafting

Certificate Course in Advanced Corporate Taxation

LIBRARY

Master Access by LawSikho

TEST PREPARATION

Judgment Writing and Drafting Course for Judicial Services

Dream Job Bootcamp

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It is very important for you to optimize your time and efforts for the Bar Exam. As the exam draws near, we have prepared a last-minute 20-hour study plan for you which will enable you to comfortably clear the exam, even if you have not been able to start preparing systematically till now. There is no need to panic – while the syllabus can be overwhelming and daunting, it is possible to optimize your preparation, and this study plan will guide you through how to efficiently allocate your time and be prepared for the exam in 20 hours.

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Please note that due to limited time, it is best to systematically plan your preparation and aim to comfortably pass the exam – for this purpose, it does not make sense to prepare for 100 per cent of the paper. Instead, you can focus on the subjects which carry the most weightage and can be studied in relatively less time. For this purpose, we have made a plan which enables you to prepare for 75 per cent of the question paper.

Note that exact marks are no longer declared by the Bar Council, and scoring 40 per cent is sufficient to pass the bar exam (there is still a 30 percent failure rate). If you prepare well for this, we expect that you should comfortably be able to pass. 

An hour-wise allocation for the study plan is provided below. This does not include time for printing out hacksheets.

Few pointers to make it easy to locate answers during the exam:

1. Please skim through all the materials that you carry to the exam hall at least once. Use a marker or post its to highlight the headings. It will save a lot of time. 
2. Prepare an index of all the materials you have so that you can be aware of what you have and what you don’t at a quick glance. 
3. Use the technique of elimination of wrong answers to solve MCQs if you can’t locate the answer through the Acts, especially for general knowledge questions. Once you our able to eliminate the incorrect options, the chances of marking the correct answers increases.  
   

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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 Ramanuj Mukherjee, CEO, LawSikho.

Once I was talking to a former student, who had by then a partner at a mid-sized law firm (yes, I have been doing this for the last 10 years, so some of my students have now made partners or have their own thriving law firms).

So this guy called me to ask if it makes sense for him to go and do an LLM or MBA. He had offers from multiple universities across the world. The one he was considering at the moment was an LLM from NUS. He had an interest in spending some time in Singapore because it may help him to build a network there and get some clients. 

Wonderful, but we should get down to the brass tacks. What is the cost of the course? INR 60 lakhs including reasonable living expenses for a year. Since he was on the other side of 30, he didn’t qualify for any substantial scholarship. 

He had the savings. 60 lakhs wasn’t a problem, especially because his annual income was over 50 lakhs at that point.

Wonderful. So your actual cost for taking one year off and studying LLM is around 1.1 Cr. What are the returns? I asked.

Networking with potential clients in Singapore. Great. But if you have a budget like this, do you really need to go to NUS for that networking? Leaving your work for a year? Would you even have enough time to network given that you will be busy with coursework?

What is in it for you?

Would the education you receive in the university make you a better lawyer? Are you convinced about that?

Will this result in you being able to charge higher rates to your clients? Can you get more salary from your firm?

The answers were in the negative. There was no certainty of any such thing.

If the objective is networking, what could be other ways to achieve that? Given that you are ready to put in a year and 1.1 Cr into building your brand, what would be the best use of that time and money? 

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Hiring research associates and writing a book or two that will resonate with potential clients? Distributing a thousand copies of that book to the Legal Heads of companies you want to impress?

Engaging a PR agent? A top PR agent would cost 6 lakhs a year and get you tons of coverage, speaking engagements. Why not get one?

How many trips to Singapore and maybe even organizing events would be possible in that budget? How many one-on-one meetings with prospective clients or law firms that could refer work? 

For 1.1 Cr you may even be able to open a small office in Singapore or find a best friend law firm to refer matters to. In that budget, I can create an amazing targeted blog with the best Singapore law content that would attract all of Singapore’s lawyers on a regular basis to read my content.

For 1.1 Cr he can certainly start his own law firm in a metro in India with style and resources that can help him to triple or quadruple his income in a few years.

It is safe to say that my former student was mindblown. He did not go for that LLM. He went to Harvard later, with a partial scholarship, after spending some money on improving his profile. He wrote that book, for instance.

Do not get me wrong. I am not against anyone doing foreign LLMs or MBA. I just want you to be mindful of your return on investment. What are you paying for? What is the game here? What are you expecting to get in return? Are those things aligned?

If yes, by all means, jump into getting that LLM. or MBA. Or whatever expensive degree you are aiming at. 

Sometimes it is beyond calculations, and I respect that too. For a lot of Indian lawyers, getting a degree from Oxbridge or Harvard is a matter of prestige or even family legacy. 

Sometimes it is truly about being a part of an amazing academic environment where you can elevate your own intellectual, social or other abilities. For some people, the dream of going to one of the world’s top universities is priceless and almost magical.

Just mind the bill that you are paying for it, and also the alternatives available. Never forget that there is an opportunity cost to everything. The popular options are often far more crowded, often subpar and usually not worth the hype. 

Like Christmas, Diwali or Durga Puja. You expect it to be life-changing, and while there is a lot of pomp and promises in the air, it rarely really touches you or brings the unbounded joy and celebration as we expect.

There is no fairy dust in a university degree that would really change your life. At the end of it all, you will find yourself back into the struggle on self-development, trying to move forward in life one step at a time.

However, I have seen some of my friends and later, students, pursue their master’s degrees with very specific purposes and achieve exactly those. Working in top international law firms, jobs at the UN, teaching in foreign universities of global repute – people have gone on to achieve great things at a global scale that would not have been possible without those degrees.

It has been my dream to study at Stanford or Harvard someday. However, I have a bigger commitment here at LawSikho that I cannot leave to pursue that dream. It is important to focus on what is truly important to us at this stage of our life. 

Are you clear about how you are going to take maximum advantage of your master’s degree if you ever went for it? Respond and share your ideas with me.

Takeaways:

• Calculate your opportunity cost. What is your objective and what are the easiest and most certain ways to get there?

• If you are going to do an LLM or MBA, remember that time will fly once you are on that journey. It may be the most expensive year of your life, so plan on what you are going to do and how exactly it will work out for you. Don’t just be sentimental and expect things to work out just because you are going to a great university.

• Dreams need to be aligned with reality with careful adjustments. Steer clear of the hype.

If you are interested in world-class practical legal education, the kind of which you will not find in any foreign university even, please check out the courses in which we are accepting enrollments in the month of October:

Diploma 

Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution

Diploma in Cyber Law, Fintech Regulations and Technology Contracts

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

Executive Certificate Courses

Certificate Course in Companies Act

Certificate Course in Trademark Licensing, Prosecution and Litigation 

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

Certificate Course in Legal Practice Development and Management

Certificate Course in Advanced Criminal Litigation & Trial Advocacy

Certificate Course in Real Estate Laws 

LIBRARY

Litigation Library by LawSikho

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:

https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

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This article is written by Shruti Goel, a 5th-year student of B.L.S LLB in Government Law College, Mumbai. This article is about the Right to Clean Environment.

Introduction

“Both aspects of man’s environment, the natural and the man-made, are essential to his well-being and to the enjoyment of basic human rights, the right to life itself.”

– United Nations, Stockholm, 1972

For leading a quality life a clean and a healthy environment is indispensable. A person will remain healthy only if he is provided with fresh air to breathe, clean water to drink and other basic requirements. So in order to live a dignified and healthy life it is important for a person to be surrounded by a clean environment. Thus, the right of the people to live in a clean and healthy environment is a basic human right, fundamental to live a decent life, the violation of which will be considered a violation of basic right to life.

The concept of protection of environment and its preservation can be traced back in our Vedas where references of ecological balance, environmental protection and other related topics are found to be made. But the advent of innovations like thermal plants, factories, automobiles, etc has lead to environmental deterioration the aftereffects of which are global warming, climate change, waste disposal, deforestation etc. Many people do not have clean air to breathe or clean water to drink or proper sanitation facilities due to increasing pollution and unbothered attitudes of the government. Almost all of these are the result of using natural resources in an unsustainable manner. Society’s oblivious behaviour towards environmental preservation has posed a severe problem because not only the present but also the future generations are going to be affected, if no steps are taken immediately. 

In the past several decades, there is a momentous shift in the international environmental concerns. The call for environmental protection and preservation has brought international recognition of the right to clean and healthy environment. For effective implementation of this notion and to create awareness globally, international organisations and communities have conducted numerous conferences and established various international instruments, resolutions and global and regional agencies. Around 200 treaties are registered under United Nations Environment Protection Programme and in total there are approx 900 bi-lateral and multilateral treaties.

International efforts

Stockholm Conference in 1972 was the first United Nations conference on Human Rights (UNCHE) which focussed on the issue of international environmental politics. This conference marked the beginning of international efforts towards the protection of ecosystem and placed it on the agenda of international policy and law. The concepts and ideas of almost every international conferences and treaties today have some snippets of the concepts and ideas discussed in this conference. Its key features were:

• It linked environmental protection with sustainable development.
• The meeting produced the Declaration of Human Rights and an action plan.
• The Declaration contained 26 principles which are considered the foundation for modern international environmental law.
• It facilitated the idea of International Environmental organisations both regionally and globally. 
• It marked the development of United Nations Environment Programme (UNEP).
• The Declaration stated that every human has a right to clean and healthy environment.

In 1983, the United Nations established World Commission on Environment and Development (WCED) also known as the Brundtland Commission to unite the countries all over the world for achievement of the common goal of sustainable development.

• The outcome of the commission was the publication which was released in 1987 known as the Brundtland report titled ‘Our Common Future’.

Brundtland report laid the foundation for Rio de Janeiro Conference in 1992, also known as the ’Earth Summit’ which led to the establishment of the UN Commission on Sustainable Development.

• The international community agreed to a plan of action for sustainable development in the 21st Century known as ‘Agenda 21’.
•  It lead to the establishment of non-legally binding document on conservation and sustainable development of forests which is known as ‘forest principles’.
• One important achievement of the conference was the agreement on Climate Change convention which ultimately led to the Kyoto Protocol and the Paris Agreement.

As a follow up to 1992 conference, Rio +5 also known as the Earth Summit 1997 was held in NewYork which appraised the status of Agenda 21.

Rio +10 was held in Johannesburg in 2002 to affirm the UN’s commitment to Agenda 21 and to establish Millenium Development goals. 

Rio +20 which was held in Brazil in 2012 was a 20 year follow-up of 2012 submit. The result of the conference was a non-binding document known as ‘The Future We Want’ where the heads of 192 countries renewed their political commitment to sustainable development.

All these conferences have, to a large extent shaped today’s international environmental law which is governed by certain general principles and bilateral and multilateral treaties.

Indian laws dealing with environmental issues

Environmental policy : Pre Stockholm period(prior to 1972)

During this period, legislation mainly focussed on infrastructural development because of which the need for environmental policy was overlooked. Certain laws were there for forest protection, unplanned town growth and preservation of mines and minerals. 

• Wild Birds and Animals Protection Act, 1912

It was made punishable to kill, capture, sell or buy any wild bird and animal mentioned in its schedule.

• Indian Forest Act, 1927

It developed the framework and procedure for setting up and protection of reserved forest, protected forests and village forests.

• The Factories Act, 1948

It stressed upon the treatment of harmful gasses, liquid effluents and solid waste generated during the manufacturing process before its final disposal to decrease its adverse effects on the environment. 

• The Mines and Minerals (Regulation and Development) Act, 1957

The Union took under its control the regulation of mines and development of minerals to avoid any misuse of this wealth of nature.

Environmental policy : Post Stockholm period(after 1972) 

Stockholm Conference in 1972 has influenced to a large extent the framework of environmental policies in India. After the Stockholm Conference, the National Council for Environmental Policy and Planning was set up in 1972 within the Department of Science and Technology to establish a regulatory body to look after the environment-related issues. This Council evolved into a full-fledged Ministry of Environment and Forests (MoEF) in 1985. 

The effect of the Conference was such that it lead to the amendment of the Constitution to include the principle of environmental protection and preservation.

Constitutional provisions

The Constitution of India, 1950 didn’t include any provision for environmental protection or preservation. However the Constitution (Forty-second Amendment) Act, 1976 introduced Article 48-A and 51A (g) which conferred constitutional status to environmental protection.

Directive principles 

• Article 48-A

This article says: “The State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country”. Though directive principles are not enforceable in the Courts ,the State has to comply with its provisions when creating laws.

• Article 47 

An attempt has also been made to provide for the right to a healthy environment to its citizens by Article 47 which states that the “State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties.”

Fundamental duties

It is a duty of every citizen to protect and preserve the environment under Article 51-A(g) which says that “It shall be the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creatures.”

Fundamental rights

The provision of Article 19 (1) of the Constitution which deals with freedom of speech and expression has been used by the Supreme Court to approach the problem of noise pollution. It has been stated that right to speech and expression doesn’t include right to use amplifiers or loudspeakers. Such right cannot be used so as to cause problems for others.

Article 21 of the Constitution deals with Protection of life and personal liberty which states that ‘No person shall be deprived of his life or personal liberty except according to procedure established by law’. It is a negative duty of the State to not to do anything which deprives a person of his life or his personal liberty. To safeguard this right and other fundamental rights Article 32 of the Constitution empowers the Supreme Court to move whenever there is any violation of Fundamental Rights. Although the right to a clean environment was not explicitly recognised by the Constitution, it has been held to be implicit in Right to life under Article 21 by the judiciary through its pronouncements. Courts have given widest connotation to Article 21, it was argued that right to life doesn’t mean merely ‘animal existence’ but a life with ‘human dignity’. It was held that right to life to incorporate all those rights that are essential and basic for the enjoyment of the standard of life, like the right to shelter, right to food, etc. free from environmental pollution and other environmental hazards.

Article 32 and Article 226 of the constitution has been used time and again to raise the issue of environmental protection through Public Interest Litigation (PIL).

Environment protection laws

The Stockholm Conference of 1972 has largely influenced the environmental policy making in India. Several important legislation has taken place after that. Following Acts were produced to tackle the problem of environment pollution.

The Water (Prevention and Control of Pollution) Act,1974

• The aim of the Act is to maintain wholesomeness of the water of the country and to promote cleanliness of streams and rivers.
• It led to the establishment of Central Pollution Control Board (CPCB) and State Pollution Control Board (SPCB).
• It prohibits the discharge of effluents into the water bodies beyond a certain level.
• It was last amended in 2003.

The Air (Prevention and Control of Pollution) Act, 1981

• It provides for prevention, control and abatement of air pollution.
• The boards created by the ‘Water Act’ were entrusted with the responsibility to implement the provisions of this Act also.
• It empowers the State Government, after consultation with the SPCBs, to declare any area or areas within the Sate as air pollution control area or areas.
• Under the Act, establishing or operating any industrial plant in the pollution control area requires consent from SPCBs.

The Environment (Protection) Act, 1986

• This Act was a result of the unfortunate Bhopal Gas tragedy in 1984.
• It is considered as an umbrella legislation to fill the lacuna of the existing legislation and to help CPCBs and SPCBs coordinate their activities under various legislations.
• The Act empowers the Centre to take all such measures as it deems necessary by setting standards for emissions and discharges of pollution in the atmosphere by any person carrying on an industry or activity; regulating the location of industries; management of hazardous wastes, and protection of public health and welfare.

The National Green Tribunal Act, 2010

• It led to the establishment of National Green Tribunal (NGT) for speedy disposal of cases relating to environment protection and preservation.
• The Act envisages establishment of NGT in order to deal with all environmental laws relating to air and water pollution, the Environment Protection Act, the Forest Conservation Act and the Biodiversity Act as have been set out in Schedule I of the NGT Act.

Certain policies were also created to achieve the aim of environmental protection. Some of them are:

• National Environment Policy, 2004
• Marine fishing Policy, 2004
• National Environment Policy, 2006
• 11th 5 Year Plan (2007 -2012)
• National Wetland Conservation Programme

Penal provisions

Under Indian Penal Code, 1860 there are certain provisions defining various crimes relating to public nuisance. 

Public nuisance is defined under Section 268 of IPC.

Sections 269 to Section 271 of the IPC deals with negligent acts which are likely to spread infection of disease dangerous to the life of people. These acts are punishable under the said sections.

Section 277 of IPC relates to water pollution. It makes fouling water of public spring or reservoir punishable with imprisonment or fine or both.

Section 278 of IPC relates to air pollution. It states that whoever voluntarily vitiates the atmosphere in any place so as to make it noxious to the health of persons in general dwelling or carrying on business in the neighbourhood or passing along a public way, shall be punished with fine which may extend to five hundred rupees.

Section 290 of IPC makes public nuisance punishable and prescribes punishment for the same.

Section 133 of Criminal Procedure Code, 1973 empowers the Magistrate to take immediate actions for removal of any public nuisance that might have been reported to it by the police after considering any evidence as it thinks fit.

Role of Judiciary in evolving environmental laws

Judiciary has played a really important role in the protection of the environment. The timeline of past few decades which is filled with landmark judgements is evident of the role played by judiciary by giving wide interpretation to the Fundamental rights of the individuals of this country. One of the major developments was the introduction of Public Interest Litigation (PIL). Supreme Court realised that the vast majority of our country is unable to approach court because of the rule of locus standi which means only the party aggrieved can approach the court. But in the 1980s the judiciary relaxed this rule which allowed every citizen whose interest has been affected in some way or the other to approach the court. PIL got its constitutional sanction in the 42nd Amendment of the Constitution. PIL proved to be a game-changer, particularly in the field of environmental cases as it expanded the horizon of social justice. It encouraged individuals, NGOs, organisations affected by any particular activity or project to approach court for the interest of society as a whole without paying any court fees. 

There are numbers of landmark judgments which clearly highlights the active role played by the judiciary in environmental protection. Some of these are as follows:

• Municipal Council, Ratlam vs Shri Vardhichand & Ors, 1980

It was one of the first cases which contributed to the expansion of horizons of environmental protection. In this case a petition was filed by the residents of a municipality in Ratlam alleging that the municipality is not constructing proper drains resulting in stench and stink caused by the excretion by nearby slum-dwellers. It was stated by Supreme Court that Right to life includes Right to a wholesome environment and the residents have the right to exercise it against State. It acknowledged the effects on poor of deteriorating environment and compelled the municipality to build proper sanitation and drainage.

• Rural Litigation and Entitlement Kendra v. State of UP, 1989

In 1987, a petition was filed by Rural Litigation and Entitlement Kendra on behalf of Doon valley residents to stop the quarrying of limestone in the Mussorie valley. It was argued that these quarrying activities are disturbing the ecological and environmental balance in the valley. SC ordered to stop the quarrying activities in the valley which was later declared ecologically fragile area under the Environment Protection Act.

• F.K. Hussain vs Union Of India And Ors, 1990

Recognising that right to health is a part of the right to live under Art. 21, the Kerala High Court has observed that the right to clean water and air are attributes of the right to life.

Evolution of principles by Indian Judiciary

Judiciary has taken the guidance of certain principles from International environmental law to help them decide disputes in environmental cases. These principles are:

Inter-generational Equity

• According to this principle, the State is obliged to conserve and use environment and its natural resources for the benefit of present as well as future generations. It states that every generation holds Earth in common, therefore its resources should be used judicially and for the common benefit of all.
• It is the foundation of sustainable development.
• Right to a clean environment is not only an individual right but a collective right available to both present and future generations equally.
• G. Sundarrajan v. UOI 2013

It was stated by SC that Sustainable Development and CSR are inseparable twins, integrated into the principles of Inter-Generational Equity which is not merely human-centric, but also eco-centric. It a duty of company to take into consideration the outcomes of their thermal projects on environment at present and its aftereffects on the future generations.

 Polluter Pays Principle

• It was first introduced in 1972 by the Organization for Economic Cooperation and Development (OECD) Guiding Principles concerning International Economic Aspects of Environmental policies.
• It states that the polluter should bear the cost of damage caused by it to the natural environment.
• Vellore Citizens’ Welfare Forum v.. Union of India 1996

Court interpreted the principle of Polluter Pays as an absolute liability of the polluter, not only to compensate the victims for the hurt caused to them but also to pay costs for the restoration of natural environment damaged by the activities of the polluter.

Precautionary Principle

• The precautionary principle was adopted in the Rio Declaration, 1992 (Principle 15).
• It states that even in the absence of scientific evidence, measures must be taken to anticipate and prevent the causes of environmental degradation. It is the social responsibility of the State to protect the public from any plausible risk.
• AP Control Pollution Board vs. Prof M V Nayadu 1999

Court held that it is better to take precautions to protect the environment from harm than to wait for the issue to materialize. It is important to take steps even if there is no scientific evidence of the potential harm to the environment.

Public trust Doctrine

• It states that resources like water, air, sea and forest have a great importance to the general public that it would be unjustified to make it the subject of private ownership. It poses a duty on the State to protect such resources for the benefit of all and not to permit any commercial use of it. 
• Public at large is the beneficiary and State is the trustee who is under a legal duty to protect these resources.
• M C Mehta v. Kamal Nath 1997

In this case an attempt was made to divert the flow of the river to support the commercial activities of a motel. It was held that the State is the trustee of all natural resources which cannot be permitted to be used for commercial purposes and can only be used for the benefit of public as a whole.

Sustainable Development Principle

• It was first introduced in Stockholm Conference in 1972.
• It states that the State should try to strike a balance between development and environment.
• State of Himachal Pradesh v. Ganesh Wood Products 1995

The Supreme Court invalidated a forest-based industry, recognizing the principle of intergenerational equity as being central to the conservation of forest resources and sustainable development.

M C Mehta v. Union of India 1986

The Shriram gas leak case was a landmark judgement in the field of environmental activism. Supreme court in this case tried to reinstate the faith of the public in the machinery of justice by rectifying the mistake done a year ago in Bhopal gas tragedy case.

Facts of the case

• Shriram Food and Fertilizer Industry, a subsidiary of Delhi Cloth Mills Limited, was a privately owned company engaged in the manufacturing of caustic chlorine and oleum gas.
• A writ petition was filed by social activist lawyer M.C Mehta for the closure of Shriram Food and Fertilizer Industry as it was situated in a very densely populated area of Delhi.
• While the petition was still pending ,on December 4th and 6th 1985, a major leakage of petroleum gas took place from one of the units of Shriram Food and Fertilizers Limited in the heart of the capital city of Delhi which resulted in one death and several health issues.
• Two orders were issued to shut down the plant on the 7th and 24th of December respectively under the Factories Act (1948) by the Inspector of Factories and the Assistant Commissioner of Factories.
• Shriram responded by filing writ petitions of itself (No. 26 of 1986) to nullify the two orders and interim opening of its caustic chlorine plant manufacturing; glycerine, soap, hard oil, etc.
• On behalf of the gas leak victims the Delhi Legal aid and Advice Board and the Delhi Bar Association filed for compensation along with the original petition of M.C. Mehta and was also pleaded to not allow the closed establishment to restart.

Issues raised

The case was first heard by three judges bench who, in their judgement permitted the reopening of the closed establishment on certain conditions. Considering that the issues are of constitutional importance the case was then referred to a larger bench of five judges.

Issue 1

Whether Shriram should be allowed to restart its operation of manufacturing caustic chlorine and oleum which is potentially a health hazard and whether it would be a violation of Article 21 ?

It was argued on behalf of the petitioner that Shriram Industry should be ordered to close permanently as it posed a risk to life and health of the community settled in the close vicinity of the industry as it would be a violation of the fundamental right guaranteed under Article 21. Though Right to health and clean environment is not explicitly mentioned in the Constitution but it is inherent under the Right to life. The directive principles under the Constitution provides for improvement of healthcare and how State should take measures to improve the standard of health and lifestyle. Though these are not enforceable in court, it is the duty of State to act in accordance with these guidance.

Issue 2

What is the measure of liability of an enterprise which is engaged in the manufacturing of a hazardous or inherently dangerous substance which poses potential risk to the health of community at large?

It was argued that the nature of activity undertaken by the said industry was dangerous and potentially risky to the health of community at large. It was stated that the company should have an absolute and non-delegable liability to ensure that no harm is caused to the community because of the dangerous nature of activity they have undertaken and to make them accountable for that.

Issue 3

Whether Shriram Industry is a ‘state’ and comes under the ambit of Article 12 so as to hold it liable under Article 21?

It was held that the manufacturing of chemicals by the industry was of public interest according to state industrial policy which was originally intended to be carried out by the Government but instead Shriram was permitted to carry out such activities under the control of government according to their rules and regulations. It was held that activities which are integral for the functioning of the society should be necessarily considered governmental functions.

Issue 4

Can compensation from Shriram Industries be claimed under Article 21?

It was argued by the petitioner that compensation should be paid to all the victims as all the applications for compensation had right to life as their basis which also guarantees right to health and clean environment. It was the absolute duty of the Shriram Industry to take safety measures so as not to cause harm or pose any risk to the health of the community. 

But later Court decided not to adjudicate on this matter.

Judgement

• Judgement was delivered on 19th December 1986.
• Supreme Court decided not to adjudicate on the matter whether compensation should be paid by Shriram Industries under Article 21.
• They directed Delhi Legal Aid and Advise Board to file a comprehensive action on behalf of all those who claimed to have suffered from this incident before an appropriate court within two months from the date of judgement.
• It also stated that the amount of compensation should be equal to the magnitude of the harm caused to the community and should also be correlated to the capacity of the Shriram industry so as to have a deterrent effect.
• The court also instructed Shriram to comply with all the recommendations of the Nilay Choudhary and Manmohan Singh Committees and issued a strict notice that failure to do so will result in the immediate closure of the plant.

Analysis & Conclusion

The judgement of the case proved to be significant for the enviro-legal cases to come as it produced several important stances which are celebrated even today. The Supreme Court took a proactive role in the disposal of the case and made sure that the Fundamental rights of the people are not violated, by giving wide connotation to Right to life under Article 21. It was important for the Court to address the concerns raised after the judgement of Bhopal Gas tragedy, which came just a year ago, to reinstate their faith of the country in the system of judiciary. It was felt necessary to have such a strong judgement to ensure the public that industries will be held absolutely liable for their actions and will be punished for jeopardizing the life of the community.

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 Right to Clean Environment – M.C Mehta v. Union of India appeared first on iPleaders.

This article has been contributed by Deekhit Bhattacharya, from ICSRM.

The symbolism explorable within the strata of Hindu Pauranic literature can be truly astounding. We are offered a fascinating glimpse into then prevailing moralities, encoded in iconographic cosmic sagas straddling the mortal and the supernatural. An underlying theme, however, is of contrast and conflict amidst expressions of the same concept. One such question is of particularly heightened societal interest of late, as the debates regarding it turn evermore louder. How exactly should we perceive wealth? Is wealth to be seen as an inclusive ladder to prosperity, or is it a consequence of evil exploitation? The Puranas offer us two narratives, which are poles apart. On one hand is Kubera, an embodiment of wealth. He is depicted as a deformed motley dwarf, possessing three legs, lacking an eye, and having broken teeth among other unpleasant attributes (His name itself can be translated as ‘the ill-shaped one’). He hoards, and hides, zealously keeping wealth under his thumb while flaunting it. The other side of the same coin is Lakshmi, the divinity of wealth, fortune and prosperity. As Raja Ravi Varma vividly painted in ‘Gajalakshmi’, she’s adorned in red, embellished in gold, with her awe-inspiring divine form resplendent upon a lotus pedestal. In fact, one may recall Botticelli’s ‘The Birth of Venus’ in its presence, replete with the subtle strength of spectacle and the magnificence of the archetypical feminine rising from primordial oceans. She gives, she brings wealth forth, and opulence is her attribute, not identity.

This very dichotomy is being replicated across the world as economic disparities are magnified by a sputtering global economy. One of the ever-intensifying fallouts of the 2008 global recession has been an unprecedented loss of faith in modern capitalism itself, as echoed by Raghuram Rajan. Whether it is the unanticipated result of the 2016 US elections, the bitter throes of Brexit or the drying up of global trade, a crisis of belief is brewing. At the forefront of bearing the popular brunt of cynicism is business- particularly big business. Case in point is the unanticipated ascendance of leaders such as Bernie Sanders and Alexandria Ocásio-Cortez in the land which lent its name to the idea of socioeconomic mobility known as the American dream. Buoyed by stagnant real wages, insecurities surrounding standards of living, and woefully inadequate delivery of public services, they have managed to influence the agendas of their colleagues and rivals alike. However, they’re symptomatic of the kind of resentment that is slowly coalescing within the people against big capital. ‘Land of opportunities’ has given way to the cynical murmurs of ‘the system is rigged’, aspirations of ‘making it big’ have turned into distasteful contempt for ‘the billionaire class’, and the 1% has fallen from grace into being portrayed as a gluttonous, self- serving enemy of the masses. India too is seeing increased disdain against big business, with talks of cronyism sounding louder than before in the backdrop of record-high unemployment and a struggling economy. Those once viewed as purveyors of Lakshmi are now being seen as henchmen of Kubera.

The one thing uniting the agendas of all those who wish to utilise this bitterness is couching their agendas in a language of moral fairness. They point out that it’s not fair for corporate honchos to earn dizzying amounts while workers get so low, necessitating a nigh retributive policy of taxation, further encouraging shady financial behaviour. They say that it is not fair for housing to cost so much and thus advocate for rent control, which is long known to be ‘the best way to destroy a city’ save for bombing, in the words of Nobel prize-winning economist Carl Lindbeck. They will point towards other countries for being manipulative, and slap tariffs arbitrarily, wrecking flows of trade sustaining thousands in all countries concerned. The thing is, it is simply not salacious nor provocative enough to argue for strong corporate governance with workplace democracy, or build an affordably dependable safety net, or negotiate multilateral trade agreements (respectively). Defending amorphous abstractions such as the invisible hand of Adam Smith, or economic choice, or even a civic and inclusive strand of nationhood is much too hard to do. The alternative of strongman politics, a politics of otherisation and voodoo economics is far simpler as well as effective in times of tumult. It is simply not a displayable enough voicing of virulent anger and projection of strength to heed to the economists. Thus, Dambisa Moyo and Swaminathan S. Aiyar’s repeated diagnoses-cum-warnings of the unavoidable failure of ‘half- baked globalisation’ will go unheard. Raghuram Rajan’s exhortations to effectively decentralise and empower communities while protecting free and inclusive markets will fall on deaf ears. Thomas Piketty’s calls for a multilateral, if not global, capital tax regime will not be considered. The easy thing to sell isn’t abstractions such as these, grounded in sound economic theory mindful of social realities. Indeed, it is instead to engage in unbridled virtue signalling, to brandish moral superiority, and to prove that they channelize popular anxieties effectively. 

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The tendency of socioeconomic policy to converge independently of partisan politics has been upended by an era characterized by gunboat disruptionism. There has been a woeful withering of the processes of social ascendance which brought in place John Adams’ ‘natural aristocracy’ or Dipankar Gupta’s ‘citizen elite’. In times not so long ago, this class gave political direction through sound knowledge, inclusive ethos and true merit. The slow demise of this class brought upon by declining mobility and incessant criticism by populists has unleashed on us an era of naked demagoguery. This, naturally, makes one expect the ongoing shenanigans of bread and circus fuelled by the relentless 24-hour news cycle to further whip hysteria and reduce people to receptacles of their respective echo chambers. Political institutions will further erode, problems will further entrench themselves, and success will further breed disdain. It is high time business realises this fact, and abandons its hopes of the political class waking up to good senses. Businesses, instead, have to take unforeseen responsibility and measures to prove that they harbour Lakshmi, not Kubera. The only reasonable way to do so is to radically embrace corporate social responsibility (CSR).

Usually, there have been four broad justifications to engage in CSR- the existence of a moral obligation, the need for sustainability, explicit or implicit license to operate, and burnishing reputation. While indeed these arguments offer compelling reasons to justify CSR, they are inadequate when it comes to formulating a coherent and systematic CSR strategy. These polemics fail to offer any templates as to how to balance the long term benefits of CSR with the short term costs the firm will incur. Often times, firms end up surrendering their CSR agendas to outsiders, whereby stakeholders who are not fully aware of the firms’ competencies, trade-offs and positions end up giving cardinality to the entire programme. This reduces CSR to being a grudging tax cheque to be encashed by an NGO or agency, diluting benefits for the firm. Meanwhile, it is also a common feature to see companies attempting to use CSR as a means to satisfy pressure groups. Over time, CSR thus degenerates into a never-ending series of short term defensive public relations palliatives entailing minimal value to society while offering no strategic gain for the business. The simultaneous conflation of CSR with public relations ends up losing the focus from the twin prerogatives of social benefit and business results. This myopic underwriting is causing a haemorrhaging of the raison d’être of CSR, shifting the goalposts and grossly impacting the benefits it could accrue to both society and companies. 

Even firms long espousing certain social responsibilities fall short of being able to quantify the social or business benefit, which calls into question the modus vivendi adopted so far. After all, what is the point if you cannot provide a clear picture of how your business has been benefited from CSR? The auxiliary arguments of altered consumer purchasing preferences and higher stock market performance too are inconclusive whence we review studies. The status quo is simply akin to having nothing more than a whimsical bleeding heart, instead of the kind of precise interlinkages we aim to build upon for quantifiable common benefit. That would be an exercise in philanthropy, not CSR. The ultimate realisation is that CSR is being approached from shaky grounds itself, whereby businesses are themselves not clear as to what exactly is the purpose of CSR. It is neither a PR stunt nor a blue-blooded institutionalisation of philanthropy. CSR is all about constructing relationships with communities for mutual benefit. It’s all about setting the stage for ‘shared value’ to take shape.

The ‘original sin’, so to speak, is that all of these approaches are fixated on the tensions between business and societies, and their mitigation thereof. What we should be pining for is instead focus on building upon the interdependence between business and society. Only then can we escape a litany of unrelated activities with dissipated social impact and no relation to the business strategy being passed off as CSR. The burden we must transition to is for firms to identify, prioritise, and address the social issues that stand central or where maximum impact can be delivered in a way which is beneficial for the company in the long term. This requires not only a fundamental paradigm shift concerning mindsets but also gauging the exact contours of the shared value being generated. As the 2019 Crisil CSR Yearbook puts it, “An independent third-party evaluation like grading of the NGOs/implementing agencies should be considered to gauge a potential partner’s ability to drive the desired social impact”. Consequently, this ‘grading’ process needs to be conducted at regular intervals to further understand and perfect the entire range of endeavours. Rather than issuing a carte blanche, there need to be clear, measurable goals and tracking of results over time. In other words, we require a process of auditing when it comes to CSR. Without this, we cannot feasibly make the leap from enforced philanthropy to CSR proper. CSR needs to be an exact, methodical science yielding tangible, shared results.   

Successful corporations are rooted in a societal context which is conducive to their functioning. Meaningful education, affordable healthcare and equal opportunity are prerequisites of a productive workforce. In the same vein, institutions such as the rule of law, the safety of property rights and sufficient political centralisation stand core to the setup of inclusive economic institutions, giving a backdrop to innovation and growth. After all, only a prosperous, aspirational and growing society can provide demand for companies to cater to. As Michael Porter and Mark Kramer said, “Any business that pursues its ends at the expense of the society it operates will find its success to be illusory and ultimately temporary”. Parallelly, a healthy society requires a business to blossom. As India stands testament thanks to its 1991 liberalisation, no social program or charity can possibly come close to providing avenues of social mobility and societal affluence compared to a booming business. The power of inclusive economic institutions, with the free market at its heart, to radically raise wealth and standards of living is an ongoing miracle which needs no defence. It is thus rather surprising to see the obsession of both civil society groups as well as business on the frictions between business and society, instead of celebrating the interdependencies while utilising it as a lodestone. To return to our mythological parable, the key to metamorphosing Kubera into Lakshmi is to pool shared value, whereby choices enrich both society and business.

There are two broad categories of linkages where society intersects with business. Inside-out linkages occur through the normal functioning of a firm, whereby its value chain and nodes thereof have a social impact on the communities it traverses through. While companies are becoming acutely aware of these effects, which translates into measures such as hiring practices and waste disposal, these linkages are far more fickle than often visualised. Not only are the social consequences dependent upon location, but also varies over time as social standards evolve and science progresses. Not only does this call for local participation and decentralised decision making, but it subsequently also asks for introspection into evolving social effects of the future. Therefore, expecting CSR to be a centralised, top-down system of farmans and fatwas is counterproductive. The second type of linkages involves the competitive context in which companies operate, known as Outside-in linkages. These include the business inputs available, the rules and incentives governing competition, size and sophistication of local demand, and local availability of supporting industries. Any and all of these aspects provide an extremely broad range of options to engage with in order to propagate shared value. In essence, there are three kinds of social issues a company may face- Generic social issues, Value chain social impacts, and Social dimensions of competitive context. Every firm will have to segregate its issues under these three heads, and then prioritise the issues accordingly. Staying within this framework and stressing upon creating quantifiable mutual accruals is the first step to truly realising CSR. 

There exists a pressing need to strategize the entire gamut of CSR to optimise its output. Strategic CSR is to move beyond good corporate citizenship and mitigation of negative value chain impacts to mount a small number of initiatives whose social and business benefits are quantifiably significant and impactful. It requires both outside-in and inside-out dimensions to work in tandem, with opportunities for the generation of shared value carefully identified, analysed and broken down into targets. At the same time, the social dimension of the shared value the firm is creating needs to be integrated into the product proposition being pitched to the consumer. The aim is to cater to certain needs of chosen customers which others cannot. This unique value proposition which is imbibed within the product stands at the heart of the overall strategy, whereby the social aspects of the business are at the forefront of product differentiation. The goal here is to make social participation of the business a part of the product branding, to be counted as a feature of the product itself. The newfound success of social ventures, whereby their sole selling point itself is the social impact of their value chains, drives home the fact that there exists an avid desire for a more humane system of engaging in business. The fact is that the brand is now inseparable from its stances even on those social concerns which are unrelated to its value chain. Case in point is the abortive venture of Google to re-enter China. In 2018, it was revealed that Google was working on ‘Project Dragonfly’, a version of its search algorithm compatible with China’s draconian censorship laws. While this in no way affected them directly, Google employees, as well as Google’s users worldwide, were incensed at Google’s capitulation to silencing free speech. Google saw the writing on the wall and backtracked for good. Simultaneously, individual instances such as the spectacular revival of the Khadi brand, the push for organic farming, and mainstream firms actively grappling with social issues only portents more socially conscious business practices to arrive in the future. The only question which now remains is if firms will take the next logical step and thoroughly systematise it to compete on an impact-oriented facet.

One of the many growing worries regarding the future is the onslaught of automation and artificial intelligence on our lives. While opinions exist dime a dozen, the truth is that it’s already making ripples and is here to stay. If the industrial revolution was any guide, it is particularly important for us to recognise that during times of dizzyingly fast technological changes, communities and the society at large undergo unanticipated upheavals. Skills are becoming obsolete at an unprecedented rate, and we still are unable to offer any satisfactory solution as to how to offer everyone a meaningful job in the upcoming economy of the future. This becomes important to firms on two levels. The first is the potential rise of neo-Luddites who would try to resist the inevitable and complicate the attempts of firms to streamline and update themselves. This is often reflected in stifling regulations on evolving technologies such as self- driving cars. India is no stranger to this, having witnessed protests from low-level bureaucracy and political parties when computerisation was ushered in. While it ultimately led to India’s IT revolution, a boon on which the India story prides itself, anxiety and fear was pervasive when computers were first introduced. The second is the potential replication of the American Midwest’s woes worldwide, where the transference of manufacturing jobs to lands having better comparative advantages, or to robots, wreaked havoc upon communities there. This ultimately set the stage for populism to capture the day in 2016 US elections, where the divergence between the red rust belt and the blue coasts of finance and tech could not have been starker. This could be the frightening future of a lot more places if businesses do not adopt an approach of equity and responsibility, whereby the ‘deplorables’ only grow in number. 

We are already seeing a deleterious trade war being fought in the common man’s name, under the slogan of getting jobs back, which is only pushing the global economy to its weakest growth since 2009. Meanwhile, no serious overhaul and reform of the public education, training, and re-education is visible on the horizon, something which would at its very outset enable more people to engage with the economy meaningfully. It is thus clear that the line between policy and rhetoric has collapsed to the detriment of the former, thus not much can be expected of such governments. However, if a business is to roll back the cynicism surrounding it, it is imperative that we take shareholders along with other stakeholders harmoniously, and emphasise on the inseparability of both their interests. Business must reignite the lights on their indispensability in giving shape to ambitions- individual and collective, as the foremost harbingers of Lakshmi for all.

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