AIBE: Mock test 4, Solve the Mock Test to strengthen your Preparation for All India Bar Exam and increase your chances of clearing the paper.

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Mock Test 

1.) Which of the following is not a pre-requisite for a valid Arbitration? 

A.) the parties must agree to an Arbitration agreement 

B.) the agreement should be valid as per the provisions of the Indian Contract Act 

C.) the parties must not agree to an Arbitration agreement 

D.) the arbitration agreement must be registered 

2.) Can the provisions of the repealed Arbitration Act of 1940, apply in relation to arbitration proceeding which commenced prior to the coming into force of the 1996 Act on January 25, 1996? 

A.) No the provisions of Arbitration Act of 1940 cannot apply as it has been repealed to for the benefit of the parties 

B.) No the provisions of Arbitration Act of 1940 cannot apply as it is a general principle under ~UNCITRAL Model Law that the most update version of the rules and provisions for the smooth running of the Arbitral process. 

C.) UNCITRAL model law that the most update version of the rules and provisions for the smot running of the abritral process 

D.) Yes the provisions of Arbitration Act of 1940 cannot apply as it has been repealed to for the benefit of the parties 

3.) Is an otherwise valid arbitration clause enforceable by law in case the main contract is found to be void or annulled? 

A.) No, arbitration clause being a part of contract between the parties ceases to enforceable by law in case of annulment of contract. 

B.) No, validity of the contract containing arbitration clause is a pre-requisite for valid Arbitration. 

C.) Yes, arbitration clause will be enforceable since it is separable from the other clauses of the contract and constitutes an agreement by itself. 

D.) Arbitration clause will be enforceable in case annulment of the main contract if the intention of the parties is to refer the disputes between them to arbitration and not otherwise 

4.) Under the Arbitration Act do the courts have an obligation to refer the parties to arbitration in terms of their arbitration agreement in cases where there is a pre-existing arbitration agreement? 

A.) In some cases where there is an arbitration clause it is obligatory for a court to refer the parties to arbitration. 

B.) In all cases where there is an arbitration clause it is obligatory for a court to refer the parties to arbitration. 

C.) There is no provision under Arbitration Act which makes the courts obliged to refer the parties to arbitration in cases where there is an arbitration clause. 

D.) Courts are obliged to refer the parties to arbitration in cases where there is an arbitration clause only in respect of “a matter which is the subject matter of an arbitration agreement”. 

5.) Which section of CPC provides that sections 16, 17 and 20 shall not be applicable to the High Court? 

A.) 121 

B.) 122 

C.) 119 

D.) 120 

6.) Which section of the Civil Procedure Code provides for the principle of res judicata and res sub judice? 

A.) section 11 and section 10 

B.) section 10 and section 11 

C.) section 9 and section 10 

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11/6/2017 LawSikho 

D.) section 11 and section 12 

7.) Provisions for an interpleader suit are made under which section? 

A.) s.87 

B.) s.88 

C.) s.86 

D.) s.85 

8.) Which Order makes provisions for suits filed by indigent persons? 

A.) order 39 

B.) order 33 

C.) order 34 

D.) order 35 

9.) You are apprehending that a suit may be filed with respect to a property in which you may have some interests. In case any such suit is filed, you would like to be notified about the same. Which of the following is relevant to you? 

A.) summon 

B.) caveat 

C.) compromise 

D.) service 

10.) What is a summon and under which Order is the provision for summons made? 

A.) The intimation given to the defendant during the suit, incase he fails to appear on a particular day, Order 5, rule 2. 

B.) The intimation given to the defendant when the suit is filed by the plaintiff to appear before the court, Order 6, Rule 1. 

C.) The intimation given to the defendant when the suit is filed by the plaintiffto appear before the court, Order 5, Rule 1. 

D.) The intimation given to the defendant during the suit, in case he fails to appear on a particular day, Order 5, Rule 1. 

11.) The CPC provides for review under which section? 

A.) s.114 

B.) s.115 

C.) s.109 

D.) s.96 

12.) Which provision under the CPC provides for the withdrawal of the suit? 

A.) Rule 1, Order 22 

B.) Rule 2, Order 23 

C.) Rule 1, Order 23 

D.) Rule 2, Order 22. 

13.) What is the period of limitation for the execution of a decree? 

A.) 12 years 

B.) 11years 

C.) 14years 

D.) 13years 

14.) Who is considered to be an indigent person for the purpose of filing a suit? 

A.) a person who does not have sufficient means to pay court fees for the suit (except from property which is exempt from attachment) 

B.) if the suit has no court-fee, then, where the person is entitled to property of less than INR 1000 

C.) both a and b 

D.) and indigent person can never sue, so the question is irrelevant 

15.) Which of the following bodies can be considered ‘State’ under A.12, if they are financially and functionally controlled by the government? 

A.) a society 

B.) a corporation 

C.) a body created under statute 

D.) all of the above 

16.) All Constitutional Rights under Part III are granted to all people. 

A.) True, since there are fundamental, which implies that they should be guaranteed to all people equally 

B.) False, since some of these rights are available only to citizens while some are available to all persons 

C.) False, since this part does not contain rights at all. 

D.) True, since under the principle of equality, all men are equal before the law. 

17.) Special Leave Petitions can be filed under Article__ of the Constitution 

A.) 32 

B.) 21 

C.) 226 

D.) 136 

18.) The right to life and personal liberty includes the following 

A.) Merely physical existence 

B.) The right to live with dignity, and not merely animal existence 

C.) The right to due process 

D.) Both b and c 

19.) What is the validity of Schedule IX of the Constitution? 

A.) Its validity has been upheld in the case of IR Coelho. 

B.) To hold something outside the purview of judicial review is a violation of the basic structure of the Constitution 

C.) Acts can still be placed under this schedule 

D.) It is a contentious and undecided issue 

20.) In our Constitution which country is the language of the Preamble adopted from : 

A.) Germany 

B.) Australia 

C.) The USA 

D.) Ireland 

21.) The principle of secularism in the Indian Constitution is the following: 

A.) ~That there is no state religion 

B.) That no state has its own religion 

C.) That everyone is entitled to their own freedom of conscience, and that this allows them to practice their own religion 

22.) Which Amendment added the duty of the state to provide for Free Legal Aid as a Directive Principle? 

A.) 42nd Amendment 1976 

B.) 44th Amendment, 1978 

C.) 73rd Amendment, 1992 

D.) None of the above 

23.) The Constitution provides that India is: 

A.) A federation of states 

B.) A quasi-federation 

C.) A quasi-union 

D.) A union of States 

24.) Laws that were enacted before the Constitution was enacted still exist. Such laws can be inconsistent with the provisions of the Constitution. 

A.) true 

B.) True, because they were valid at the time of enactment, and it is hard to envisage subsequent illegality. 

C.) False. 

D.) False, since all laws should adhere to the provisions of the constitution, even if the constitution is amended after the enactment is passed. 

25.) When did the Indian Contract Act come in force? 

A.) 1st January 1872 

B.) 1st January 1872 

C.) 1st September 1872 

D.) 1st June 1872 

26.) A proposal is revoked: 

A.) ~by the failure of the acceptor to fulfil a condition precedent to acceptance 

B.) by the death or insanity of the proposer, if the fact of the death or insanity comes to the knowledge of theacceptor before acceptance 

C.) Only a 

D.) Both a and b 

27.) Under which of the following circumstance/s is a contract deemed void? 

A.) Mistake of law in force in India by the parties at the time of entering into the contract 

B.) Mistake of law not in force in India by the parties at the time of entering into the contract 

C.) When both the parties are mistaken on a matter of fact which is essential to the agreement 

D.) When one of the parties are mistaken on a matter of fact which is essential to the agreement 

28.) An agreement which is enforceable by law at the option of one or more of the parties thereto, but not at the option of the other or others, is: 

A.) Invalid 

B.) Void 

C.) Voidable 

D.) Quasi-contract 

29.) Ram left a brand new watch at Shyam’s house. Shyam treats the watch as his own. He is bound to pay it to Shyam under Section ___ of the Contract Act, 1872: 

A.) 100 

B.) 120 

C.) 70 

D.) 130 

30.) P appoints an agent A for his business, and gives him certain computers to conduct the business. After 4 months, P terminates A’s agency services. Is A entitled to retain the computers? 

A.) No, agents don’t have right of lien. 

B.) No, agent is not a bailee so right of lien cannot be exercised 

C.) Yes, A can exercise right of lien over principal’s property, until commission is paid. 

D.) None of the other options 

31.) A party to a contract remains silent as to facts known by him which would likely affect the willingness of the other party to enter into the contract: 

A.) This makes the contract voidable at the option of the other party 

B.) This the contract void abinitio 

C.) This contract is vitiated by fraud 

D.) This contract is not vitiated by fraud 

32.) X guarantees payment to Y, a cigarette-dealer, to the amount of Rs 5000, for any cigarette which Y may from time to time supply to Z. Y supplies Z with cigarettes of above the value of Rs 5000, and Z pays Y for it. Afterwards, Y supplies Z with cigarettes of the value of Rs 10000. Z fails to pay. X is liable: 

A.) to Y for Rs 5000 

B.) to Z for 5000 

C.) to Y for 10000 

D.) to Z for 10000 

33.) A and B were rival shopkeepers in a locality, and A agreed to pay B a sum of money in exchange for B closing B’s shop. B closed the shop and demanded the money. 

A.) This agreement is void 

B.) A is estopped from refusing to pay B the money 

C.) The actions of A were not illegal, since B consented with no coercion etc 

D.) B is entitled to the money 

34.) What sort of consideration is needed to create an agency relationship. 

A.) Financial 

B.) Trust 

C.) Any 

D.) None of the above 

35.) The agreement entered into by an insane personis : 

A.) Null and void contract 

B.) Voidable contract , at the option of the minor 

C.) Valid and enforceable contract 

D.) Not a contract at all 

36.) X suffers from occasional fits of hysteria and is interred at an asylum for mentally differently empowered people. He enters into an agreement with Y when he was in sound mind, although before signing it, he had a bout of hysteria. The agreement is: 

A.) Valid 

B.) Void 

C.) Voidable at the option of X when he is in a stable mental state 

D.) Voidable at the option of Y 

37.) When a person hires another to do work for him, and the contract is either not completed or is otherwise rendered un-performable, the person performing may sue for the value of the improvements made or the services rendered to the defendant. The law implies a promise from the employer to the workman that he will pay him for his services, as much as he may deserve. This maxim of contract law is called: 

A.) Consensus ad idem 

B.) Non est factum 

C.) Quantum meruit 

D.) Ubi juis ibi remedium 

38.) Acceptance of offer must be 

A.) Absolute and unqualified 

B.) Communicated to offeror 

C.) Within a reasonable time before the offer lapses 

D.) All of the above 

39.) In law of contracts, the mirror image rule ___ 

A.) Is also referred to as an unequivocal and absolute acceptance requirement, which states that an offer must be accepted exactly without modifications 

B.) both a and b 

C.) none of the above 

40.) In contract law, the defense of frustration of purpose can be invoked when: 

A.) an unforeseen event undermines a party’s principal purpose for entering into a contract 

B.) both parties knew of this principal purpose at the time the contract was made. 

C.) Both a and b 

D.) Neither a nor b 

41.) The basic rule for how to determine the scope of consequential damages arising from a breach of contract, that one is liable for all losses that ought to have been in the contemplation of the contracting parties was laid down in the landmark Judgement of 

A.) Baxter v Hadley 

B.) Hadley v. Baxandale 

C.) Carlil v. Carbolic 

D.) Donoghue v. Stevenson 

42.) If A has two pieces of land, X and Y and he sells X to B with a covenant for the beneficial enjoyment of Y, would the covenant bind B? 

A.) Yes, because the original transferee is bound by both negative and positive covenants 

B.) No, he is bound only if the covenant is positive 

C.) Yes, because the covenant is negative 

D.) No, because he consented to such a covenant 

43.) Maximum prescribed term for imprisonment and maximum fine for dishonour of cheques due to insufficiency of funds are___________ respectively 

A.) Two years and twice the amount of the cheque 

B.) Three years and thrice the amount of the check 

C.) Three years and the amount of the cheque 

D.) One year and thrice the amount of the check 

44.) Three friends, X, Y and Z enter into a partnership. All three have contributed some property to the firm. Their contract states that death of a partner either will not dissolve the firm. X dies, and Y and Z carry on the business of the firm without a final settlement of accounts between them and X. The representatives of X, claiming for him, are entitled to: 

A.) share of the profits made after the death, which is attributable to use of his share of the property, or to 6% p.a. interest on the amount of his share in the property of the firm 

B.) share of the profits made since he ceased to be a partner as may be attributable to the use of his share of the property of the firm or to interest at the rate of 10% per annum on the amount of his share in the property of the firm 

C.) only profits prior to the death 

D.) such a contract is invalid under the Partnership Act and thus the partnership ceased in the eyes of law. 

45.) Golu, an Indian citizen, commits adultery in Greece which is not considered an offence in that country. He returns to India. Can he be tried for adultery under the IPC? 

A.) No, since adultery is permissible in Greece. 

B.) Yes, as he is an Indian citizen 

C.) Yes, as he is an Indian citizen and the act is punishable under Indian law. 

D.) No, since the act was committed outside India where the Indian Penal Code isn’t applicable 

46.) A knows that B has haemophilia. A cuts B’s hands slightly and B dies out of bleeding. A commits: 

A.) Murder 

B.) Culpable homicide 

C.) Grievous hurt 

D.) None of the above 

47.) A knows that B is pregnant. He wants to kill B. B survives but the unborn child dies. A can be imprisoned up to 

A.) 10years 

B.) 7years 

C.) 5years 

D.) life imprisonment 

48.) The Hicklin’s test for determining obscenity was upheld by the Indian Supreme Court in: 

A.) Bachan Singh v State of Punjab 

B.) State of Maharashtra v. Ranjit Udeshi 

C.) A & B 

D.) None of the above 

49.) A body corporate can: 

A.) Sue and be sued in its own name 

B.) Directors can sue and be sued but not the corporate entity 

C.) Possess property in its own name 

D.) Both a and c 

50.) The Indian Penal Code draws elements from: 

A.) The Irish Penal Code 

B.) The German Penal Code 

C.) The Louisiana Penal Code 

D.) All of the above 

51.) What is the correct definition of ‘complaint’ under the CrPC? 

A.) An allegation made orally or in writing to the Magistrate 

B.) An allegation made in writing to the Magistrate 

C.) An allegation made in writing or in written to any police officer 

D.) An allegation made orally to a police officer 

52.) The Chief Judicial Magistrate may pass any sentence except? 

A.) Sentence for imprisonment for a term exceeding three years. 

B.) Sentence imposing fine of more the 10,000/- 

C.) Sentence imposing fine of more than 50,000/- 

D.) Sentence of death, and imprisonment exceeding seven years 

53.) The definition of arrest entails… 

A.) Deprivation of personal liberty 

B.) Deprivation of personal liberty by a police officer 

C.) Deprivation of personal liberty by a police officer not below the rank of Superintendent. 

D.) Deprivation of personal liberty by any person who has the legal authority to do the same. 

54.) Choose which of the following statements is correct in toto (the statement that is correct in its entirety) 

A.) Custody’ is only when the accused is arrested by the police 

B.) Custody’ is the term used when the accused is not in police custody but in judicial custody. 

C.) Custody’ means when a person has imprisoned an accused. 

D.) Custody’ does not merely mean when the police arrest the accused, but also when the police produces him/her before a Magistrate and gets a remand to judicial or other custody. 

55.) Which of the following persons cannot affect arrest? 

A.) Police officer 

B.) private person 

C.) magistrate 

D.) None of the other options – All can affect arrest. 

56.) Which of the following is not a right of an arrested person? 

A.) Right to know the ground of arrest 

B.) Obligation of the police officer to inform the relatives of the arrested person 

C.) To take reasonable care of the health and safety of the accused. 

D.) None of these 

57.) In which of the circumstances will bail be refused to a person who has committed a non-bailable offence? 

A.) When there are reasonable grounds for believing that the accused has committed an offence which is punishable with death or imprisonment for life. 

B.) The person has committed a cognizable offence and has been previously convicted for an offence punishable with death or life imprisonment or imprisonment for seven years 

C.) Person has committed a cognizable offence and has been previously convicted on two or more occasions of committing a non-bailable and cognizable offence. 

D.) a, b and c 

58.) hat is the maximum period for which an under-trial can be detained? 

A.) One third of the maximum period of imprisonment specified for the offence for which the under trial has been detained 

B.) Half of the maximum period of imprisonment specified for the offence for which the under trial has been detained. 

C.) The maximum period of imprisonment specified for the offence for which the under trial has been detained 

D.) One fourth of the maximum period of imprisonment specified for the offence for which the under trial has been detained. 

59.) When does an order of anticipatory bail take effect? 

A.) When the order is passed 

B.) When the offence is committed 

C.) When the arrest is made 

D.) When the bail application is made 

60.) When is summons issued by affixation on a conspicuous part of the residence of the person who has been summoned? 

A.) When summons could not be issued to the person despite taking all the necessary steps. 

B.) When summons could not be issued to an adult male member of the family to which the person summoned belongs. 

C.) When both a and b could not be performed 

D.) When person to be summoned is not at home. 

61.) Under the Indian Evidence Act an FIR is ___ 

A.) Not a substantive piece of evidence and can be used for corroboration 

B.) A substantive piece of evidence and can be used for corroboration 

C.) Is not a substantive piece of evidence and cannot be used for corroboration 

D.) A proof of a criminal act. 

62.) Keeping in mind the definition of ‘admissibility in court’ and ‘relevance’ choose the correct statement. 

A.) Evidence may either be relevant or admissible. 

B.) Evidence can be relevant as well as admissible. 

C.) Evidence may be relevant but not admissible. 

D.) Both b and c 

63.) What does the rule of ‘res gestae’ refer to? 

A.) Circumstances when irrelevant facts are also admissible in court 

B.) Circumstances when irrelevant facts can become relevant facts 

C.) Facts are relevant even when they are not in issue when they form a part of the same transaction. 

D.) Facts are relevant only when they are facts in issue 

64.) Choose which of the following statements is false. 

A.) A fact that is not relevant as conduct under S 8 of the Evidence Act cannot be admitted under Section 32 (1). 

B.) A fact that is not relevant as conduct under S 8 of the Evidence Act cannot be admitted as corroborative evidence under Section 157. 

C.) A fact that is not relevant as conduct under S 8 of the Evidence Act cannot be admitted as relevant fact in court under any other provision. 

D.) A fact that is not relevant as conduct under S 8 of the Evidence Act can still be admitted in court 

65.) Section 11 (which states that facts not otherwise relevant can be made relevant under certain situation) of the evidence act encompasses which important rule of evidentiary law? 

A.) Res Gestae 

B.) Plea of alibi 

C.) All facts that are a part of the same transaction are relevant facts 

D.) Deep Pocket theory 

66.) An admission can be in which of the following forms? 

A.) Electronic 

B.) Oral statement 

C.) Written statement 

D.) All of the above 

67.) What are the two kinds of admission for the purpose of evidence? 

A.) Judicial and extra-judicial admission 

B.) True and false admissions 

C.) Oral and written admissions 

D.) Admission made before trial and admission made after trial 

68.) Choose the most appropriate statement. Under Evidence Act, leading questions: 

A.) Cannot be asked at all 

B.) Cannot be asked in case of examination in chief and re-examination 

C.) Cannot be asked in case of examination in chief, unless the witness is hostile 

D.) Can be asked only during cross-examination 

69.) The Natural Law School, as propounded by Salmond, claims that positive law derives its standard from: 

A.) Consensus 

B.) An objective norm that has to be followed in the interest of order in society 

C.) Superior moral standards 

D.) Command of the sovereign 

70.) According to Ronald Dworkin, what is indispensible in order to interpret and apply laws? 

A.) legal authority 

B.) introduction of moral judgments 

C.) a body of judges who are capable of keeping personal value judgments out of reach of laws 

D.) a robust system of courts 

71.) Jurisprudence would be the study of: 

A.) what is law 

B.) the ‘why’s of law 

C.) legal philosophy 

D.) all of the above 

72.) A person who professes to practice before a court without being duly entitled as per the Advocates Act is punishable with a maximum imprisonment of: 

A.) two years 

B.) one year 

C.) six months 

D.) no imprisonment, only fine 

73.) When was the (now repealed) The Legal Practitioners (Women) Act passed? 

A.) 1985 

B.) 1960 

C.) 1941 

D.) 1923 

74.) An advocate should not: 

A.) act in a bankruptcy petition when he himself is also a creditor of the bankrupt. 

B.) accept a brief from a company of which he is a Director. 

C.) Both a and b 

D.) Neither a nor b 

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

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

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

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

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

76.) Sec. 47(3) of the Motor Vehicles Act empowers the Regional Transport Authority to limit the number of stage carriage permits. The Authority’s decision was based on an official policy. This is an example of a …………….. function. 

A.) Administrative 

B.) Judicial 

C.) Quasi-judicial 

D.) Legislative 

77.) Audi alteram partem means? 

A.) Nobody should be tried more than once. 

B.) The right of the party to be heard. 

C.) Natural justice 

D.) None of the above. 

78.) In England, a post of ____ is attached to the Westminster Parliament to investigate cases of maladministration 

A.) Minster of Administration 

B.) Secretary of State Affairs 

C.) Ombudsman 

D.) None of the above 

79.) X, a company, has three shareholders. Upon the death of one of the shareholders A, the shares held by A are inherited by his son 

A.) The change in shareholding structure will not have any impact on the existence of the company 

B.) The change in shareholding structure will result in change in management structure of the company 

C.) The change in shareholding structure will result in the company being dissolved 

D.) The change in shareholding structure will result in the company being solved 

80.) 99.9% of the shares of a company X are owned by a man A. The company underwent liquidation, and the creditors claimed that A and X are the same entity. Which of the following decisions is likely to be taken by the court? 

A.) X would have separate identity distinct from A, and consequently would not be liable for the debts incurred by X. 

B.) X and A would have the same identity, and A would be liable for the debts incurred by X. 

C.) A would incur a liability greater than the liability of X, since A holds majority shares of X. 

D.) Both X and A would incur similar liabilities in equal proportions 

81.) The minimum paid up capital needed for a private company is ___ 

A.) 10 lakh Rupees 

B.) 1 lakh Rupees. 

C.) 5 lakh Rupees. 

D.) There 

82.) A maximum of how many members can be appointed at the National Company Law Tribunal? 

A.) 50 

B.) 52 

C.) 60 

D.) 62 

83.) A, a Hindu, married B, a Christian. The marriage was solemnized as per Christian rituals. Can the marriage be dissolved later as per HMA? 

A.) Yes, the HMA is not binding as they are of different religion 

B.) No, Because S 11 of Christian marriage act prohibits application of HMA 

C.) No, Their marriage cannot be dissolved later under the provisions of the HMA as it was solemnized under Christian rules 

D.) Yes, because HMA is if universal application 

84.) A and B, both Hindus, have been in love since their college days, and plan to get married. When they complete 6 steps of the Saptpadi, an earthquake strikes and there is chaos. Both A and B flee from the scene of marriage for the next two days. Can they be considered to be married? 

A.) They have the option of completing the marriage at a later stage by taking the seven steps again. 

B.) Marriage is not complete until it is registered 

C.) They can complete by taking the seventh step later 

D.) No, they are not married as the seventh step could not be completed 

85.) A’s wife discovers after marriage that A is impotent. She has left him, and wants a decree of nullity after 2 years. Can she get it? 

A.) No, decree of nullity can be applied only within 1 year 

B.) No, she can apply for divorce claiming irretrievable breakdown of marriage 

C.) Yes, impotency is a ground for nullity at any point of time 

D.) Yes, unless A applies for restitution of conjugal rights. 

86.) A and B, both Hindus, have been married for 10 years. For the past 8 years, B has exhibited indifference to A’s health in addition to treating her with callous neglect and extreme boorishness. B also uses every opportunity to harass A, sometimes even in public. B also ill-treats their children. Will A be granted a divorce? 

A.) Yes, he can claim for divorce under physical cruelty. 

B.) No, because this is mere wear and tear of married life 

C.) He can file for divorce under cruelty or irretrievable breakdown of marriage. 

D.) Yes, he can claim divorce under mutual consent (if B agrees) or under mental cruelty. 

87.) A is employed by industry B as a workman. Industry B faces a shortage of coal, and plans to lay off its workmen for a week. What should the industry do?A.) Industry B must serve retrenchment notice under Industrial Disputes Act. 

B.) It can lay off workmen only after taking permission of the appropriate government 

C.) It can lay off after taking permission of the state government 

D.) It can lay-off without Central Government permission, for reasons of shortage of coal 

88.) A group of lawyers volunteer at a legal services clinic for free or at nominal cost. Some servants are hired to look after the maintenance of the office. Is this an industry according to the industrial disputes act? 

A.) Yes, because the kind of services rendered are a part of the ‘legal industry’ 

B.) No, because industry refers only to private corporations 

C.) No, Since the lawyers are not engaged for remuneration or on the basis of master and servant relationship 

D.) Yes, because this is a systematic activity organised by cooperation and there is a master servant relationship between the lawyers and the servants 

89.) Company A, an industry, utilises the services of a contractor C’s employees as contract labour. There arises a dispute between A and the employees. The party raising the dispute has a direct interest in the subject matter of the dispute. Is this dispute within the ambit of the definition of ‘dispute’ in the Industrial Disputes Act? 

A.) No, Because they are employees of C and not A. However, it would have been ‘dispute’ under the IDA had it been between C and the employees 

B.) Yes, because the fact that the workmen are C’s employees and not A’s is irrelevant as long as they have a direct interest in the dispute 

C.) Yes, because for the time that they were working under A, A becomes their employer and C has no power whatsoever in that period 

D.) No, because industrial dispute refers to dispute between two or more industries only 

90.) The workmen of a public utility service serve notice on their employer of their decision to strike work if certain demands are not met. The workmen and employer enter into negotiations, and during these negotiations, a period of six weeks expires. The negotiations fail, and the workers immediately strike work. Is the strike legal? 

A.) No, workers of public utility services have no right to strike 

B.) No, this strike is illegal, as the workers were required to give fresh notice of a strike when the previously notified date lapsed. 

C.) Yes, because six weeks’ notice was given to the employer before the negotiations and there is no provision in the Industrial Disputes Act of relapse of a notice merely because negotiations are entered into 

D.) Yes, because the right to strike is legal right provided by the Industrial Disputes Act 

91.) Employees of public utility services are forbidden to strike under__ 

A.) Section 21of the Industrial Disputes Act. 

B.) Section 23 of the Industrial Disputes Act. 

C.) Section 22 of the Industrial Disputes Act 

D.) There is no such prohibition. 

92.) The workmen of an industrial establishment strike work illegally, and the employer seeks damages as compensation from the workmen. Would a suit for damages lie? 

A.) No because such suit is restricted on the grounds of privity of contract 

B.) Yes because the workmen had called the strike illegally and as a result the employer had suffered financial harm 

C.) No, because the remedies for illegal strikes are found exclusively in S.26 of the Industrial Disputes Act. 

D.) Yes, because remedies for illegal strikes are not contained exclusively in S.26 but also in the Law of Contracts 

93.) Res ipsa loquitur implies: 

A.) The tortfeasor is not liable 

B.) A finding of contributory negligence 

C.) Under certain circumstances (where the act is evidently outrageous), the burden of proof shifts on the person who has committed the tort, i.e. he is required to establish that he is not liable. 

D.) Reversal of burden of proof in all cases. 

94.) A throws a heavy wooden log onto the road. B who was walking on the road is struck by the rolling log and has been injured. Which of the following statements most accurately applies the principle below? 

A.) ~B cannot seek remedy against A as A did not have any intention to hurt B. 

B.) B cannot seek remedy against A as B should have been careful while walking on the road. 

C.) B can seek remedy against A through a Trespass to person action against A. 

D.) B can seek remedy against A for Tort of Trespass through a Trespass on the case action against A 

95.) A owns a nightclub where B, is in charge of the security arrangements. One day, B while performing his duties punched and kicked a guest C while he tried to enter the nightclub. Which of the following statements most accurately applies the principle below? 

A.) A is not liable to compensate C since B caused the injury to C 

B.) A is not vicariously liable to compensate C since B did something out of his scope of Employment. 

C.) B is liable to compensate C for the tortious act of battery 

D.) A is vicariously liable to compensate C for the tortious act of battery committed by his employee. 

96.) A hires an independent contractor B to erect a fence around her property. B, while erecting the fence negligently injures C who had come to look for his football in A’s property. Which of the following statements most accurately applies the principle below? 

A.) A cannot be made liable to compensate C for the injury as B was an independent contractor 

B.) A is not vicariously liable to compensate C for the injury as the activity of the B was delegable and not inherently dangerous 

C.) A is not liable to compensate C for the injury as by stepping inside A’s property he took a risk that he might get hurt 

D.) A is liable to compensate C as he had a duty to monitor the work done by B. 

97.) A engages B, a specialist for protecting crops from harm from animals and pests, to get rid of all the monkeys that have begun to invade her large farm property in such a way that it does not cause much harm to the plants in the farm. B injures C, a worker in the farm, while trying to get rid of a monkey. Which of the following statements most accurately applies to the principle below? Is A liable to compensate C for the injury? 

A.) A is not liable to compensate C as he was working on A’s farm and was injured due to his own carelessness 

B.) A is not liable to compensate C as B was an independent contractor. 

C.) C 

D.) B is liable to compensate C as he had injured C. 

98.) Under the Consumer Protection Act, 1986, the pecuniary jurisdiction of District Consumer Forums is Rs: 

A.) 10 lakhs 

B.) 20 lakhs 

C.) 30 lakhs 

D.) 50 lakhs 

99.) Which section of the CPC provides for out-of-court settlement of Disputes? 

A.) 100 

B.) 89(1) 

C.) 93 (1) 

D.) 70(2) 

100.) Which Act envisages the institution of Lok Adalat in India : 

A.) The Legal Services Authority Act, 1987 

B.) the Indian constitution 

C.) Family Court Act, 1984 

D.) The Advocates Act, 1960 

101.) The following are two principles of natural justice: 

A.) the party has a right to be heard 

B.) No one can be a judge in his own cause 

C.) Both a and b 

D.) None of the above 

Answer Key

1.) D 2.) B 3.) C 4.) D 5.) D 6.) A 7.) B 8.) B 9.) B 10.) C 11.) A 12.) C 13.) A 14.) C 15.) D 16.) B 17.) D 18.) D 19.) B 20.) C 21.) A 22.) A 23.) D 24.) C 25.) C 26.) D 27.) C 28.) C 29.) C 30.) C 31.) C 32.) A 33.) A 34.) D 35.) A 36.) C 37.) C 38.) D 39.) C 40.) C 41.) B 42.) A 43.) A 44.) C 45.) C 46.) A 47.) A 48.) B 49.) D 50.) C 51.) A 52.) D 53.) D 54.) D 55.) D 56.) C 57.) D 58.) B 59.) B 60.) C 61.) A 62.) B 63.) B 64.) C 65.) B 66.) D 67.) A 68.) C 69.) C 70.) C 71.) D 72.) C 73.) D 74.) C 75.) D 76.) A 77.) B 78.) C 79.) C 80.) C 81.) B 82.) D 83.) C 84.) D 85.) A 86.) D 87.) D 88.) D 89.) B 90.) C 91.) C 92.) C 93.) D 94.) B 95.) 96.) A 97.) C 98.) B 99.) B 100.) A 101.) C 

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This article is written by Komal Kumari, a 4th-year student of B.A. LL.B. in Lloyd Law College, Greater Noida. The article focuses on the aspects of Maintenance and Champerty under the law of torts and the various other aspects related to the same.

What is the Law of Tort?

The word ‘tort’ has its origin from the Latin term ‘tortum’ which implies to twist or the conduct which is twisted or tortious. The basic principle underlying tort law is that there is a duty of care towards everybody, which is implied under the law, and no one should be harmed by the actions of others.

Definition of tort by Salmond & Heuston: A tort is a civil wrong for which the remedy is a common-law action for unliquidated damages, and which is not exclusively the breach of contract, breach of trust or any other merely equitable obligation.

Sir Frederick Pollock summed up the idea of tort as: A Tort is any act or omission (not only the breach of a duty arising out of a personal relation, or undertaken by contract) which is related to one of the following ways to harm (including interference with an absolute right, whether there be actual measurable damage or not), suffered by a specific person:

1. An act that without any lawful justification or excuse, is intended by the agent to cause harm, and does cause the harm complained of.
2. An act that is contrary to law, or omission of specific legal duty, which causes harm even though the person so acting or omitting did not intended to do so.

(c) An act violating an absolute right (especially the rights of possession or property), and treated as wrongful without regard to the actor’s intention or knowledge. This is an artificial extension of the general conceptions which are common to English and Roman Law.

(d)An act or omission which might with due diligence have been foreseen and prevented but caused harm even though the person so acting or omitting to act did not intend to cause.

(e)It may, in special cases, be referring to where the party was bound, absolutely or within limits, to avoid or prevent harm. 

As per the common law jurisdictions, a tort is a civil wrong that unjustifiably causes someone else to suffer loss, harm or injuries resulting in the legal liability for the individual who committed the tortious act, known as the tortfeasor. Though crimes can be torts, the reason for legal action is not inevitably a crime, as the reason of harm may be due to negligence which does not lead to criminal negligence.

The individual that is victimized can recover the loss in the form of damages from a lawsuit. But for this, the individual who is the plaintiff in the lawsuit has to show that the particular act or omission was the legally recognizable cause of the harm. The legal injuries under the law of Torts are not limited to the physical injuries but also includes economic, emotional, reputational injuries as well as violations of privacy, property or constitutional rights. 

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Maintenance and Champerty 

Maintenance is the officious assistance by money or otherwise proffered by a third person to either party to a suit, in which he himself has no legal interest to enable them to prosecute or defend it. 

“The essence of the offence is intermeddling with litigation in which the intermeddler has no concern.” It is against public policy that litigation should be promoted and supported by those who have no concern in it.

If a person agrees to maintain a suit in which he has no interest, the proceeding is known as Maintenance; if he bargains for a share of the result to be ultimately decreed in a suit in consideration of assisting in its Maintenance, it is styled Champerty.

Origin of Maintenance and Champerty 

Champerty and Maintenance are doctrines of common law jurisdictions which aim to prevent insignificant litigation. “Maintenance” is used for referring the intermeddling or interference of a disinterested party to propel a lawsuit. Lord Chief Justice Coke described the origin of Maintenance in the early seventeenth century as “taking up to on one’s hand, upholding quarrels by bearing up or taking sides, by disturbing or hindering the common rights”. The origin of the word Champerty if from the old french charm part implying feudal lord’s share of the produce.

Thus, Champerty can be referred to as the Maintenance of the person in a lawsuit on the foremost condition that the subject matter of the action is to be shared with the maintainer, i.e., buying into someone’s lawsuit as can be defined by a layman. In the present time, Maintenance is when a stranger supports the litigation without a legally sufficient reason. Champerty is referred to as an aggravated form of Maintenance. Another term related to Maintenance and Champerty is barratry, the bringing of vexatious litigations.

Under the common law, Maintenance and Champerty, were both crime and tort, as was barratry. Which is no longer the same as during the nineteenth century, the development of legal ethics tended to preclude the risks to the public, specifically after the scandal of the Swynfen will case (1856–1864). Even though the principles are relevant to modern contingent fee agreements between the lawyer and client and to the assignment by a plaintiff of his rights in a lawsuit to someone with no connection to the case, however, a champertous contracts can still be void for public policy or attract liability for costs, depending on the jurisdiction.

Law of Maintenance 

The Law of Maintenance is limited to the cases where a man improperly and for the purpose of stirring up litigation and strife encourages others to bring actions or to make defence which they have no right to make. No encouragement or stimulation should be given to litigation by the introduction of parties to enforce those rights which others are not willing to enforce.

An action for damages for Maintenance will not lie in the absence of proof of special damage. The success of maintained litigation, whether an action or a defence, is not a bar to the right of action for Maintenance.

In two cases the Maintenance of a suit is lawful: 

• Where the person maintaining has an interest in the subject matter of the action, e.g. master for a servant or a servant for a master, and heir, a brother, a son-in-law, a brother-in-law, a landlord defending his tenant in a suit for the title. But in all these cases the interest spoken of is an actual valuable interest in the result of the suit itself, either present, or contingent, or future, or the interest which consanguinity or affinity to the suitor gives to the man who aids him, or the interest arising from the connection of the parties.
• Where the maintainer assisted the third person from charitable motives, believing that he was a poor man oppressed by a rich man; or from religious sympathy.

The doctrine as to the Maintenance of civil suits is not applicable to criminal proceedings. Every member of the public may set the criminal law in motion, and he is not liable unless the prosecution is malicious.

The plaintiff having sat and voted as a member of Parliament, without having made and subscribed the oath appointed by a statute, the defendant, also a member of Parliament, procured C to sue the plaintiff for the penalty imposed by that statute for contravention thereof. C was a person of insufficient means to pay the costs in the event of the action being unsuccessful.

After the commencement of the action, the defendant gave C a bond of indemnity against all costs and expenses he might incur in consequence of the action. It was held that the defendant and C had no common interest in the result of the action for the penalty, that the conduct of the defendant in respect of such action amounted to Maintenance, and that the action for Maintenance was maintainable.

By the Criminal Law Act, 1967, Maintenance and Champerty have been abolished as crimes and torts in England. But a champertous agreement is still void for illegality so far as the law of contracts is concerned.

Difference between Maintenance and Champerty 

“The distinguishing feature of Champerty is the support of litigation by a stranger in return for a share of the proceeds.” – Lord Justice Steyn, Giles v Thompson, All E.R. 1993

Maintenance is genus whereas, Champerty is a species as every Champerty can be a Maintenance, but every Maintenance cannot be Champerty. Maintenance is the term used in tort for referring to the encouraging done by an individual to another to sue a third-party.

In the Book Russell on Crimes, 1826, Maintenance is defined as: “An unlawful taking in hand or upholding of quarrels or sides, to the disturbance or hindrance of common rights… interfering in a suit depending in a court of justice”. This states that it differs from Champerty, as it is used when the interferer has a stake in the litigation interfered with.

The Ontario Court of Appeal defined Maintenance in relation to the included tort of Champerty through the case of McIntyre Estate v. Ontario, 218 D.L.R. (4th) 193 (2002), as:

“Maintenance is used for referring to those who, for an indecorous motive, often described as wanton/malicious or officious meddling, become involved with litigation (disputes) of others, even though the maintainer has no interest whatsoever and where the assistance he/she renders to one or the other parties is without justification or excuse.”

“Champerty is an egregious form of Maintenance in which there is the added element that the maintainer shares in the profits of the litigation. Importantly, without Maintenance, there can be no Champerty.”

The question of whether conduct or an arrangement constitutes Maintenance or Champerty is cleared by the court as – a person’s motive is a proper consideration and, indeed, determinative of this particular question. A person can only be termed as a maintainer if the person has an improper motive that may include but is not limited to officious intermeddling or stirring up strife.

Indian Law 

It is well settled that the English laws of Maintenance and Champerty are not applicable to India. This point was considered in early 1876 by the Privy Council in Ram Coomar v. Chunder Canto, and since then it has never been doubted that the validity of agreements under the Indian law of contract cannot be challenged on the technical grounds of Maintenance and Champerty as they are understood under the English law.

It may, however, be added that even though the English laws of Maintenance and Champerty are not of force as specific laws in India, the judgment of the Privy Council in Ram Coomar Coondoo’s case itself emphasizes the fact that agreements of such a kind ought to be carefully watched, and when extortionate, unconscionable, or made for improper objects, ought to be held invalid.

A fair agreement to supply funds to carry on a suit, in consideration of the lender having a share of the property sued for, if recovered, is not to be regarded as necessarily opposed to public policy, or merely, on this ground, void. But in agreements of this kind, the questions are: 

• Whether the agreement is extortionate and unconscionable, so as to be inequitable against the borrower; or 
• Whether the agreement has been made, not with the bona fide object of assisting a claim, believed to be just, and of obtaining reasonable compensation therefor, but for improper objects, as for the purpose of gambling in litigation, or injuring others, so as to be, for these reasons, contrary to public policy.

In either of these cases, the effect is not to be given to the agreement.

Conclusion 

The essence of the offence is intermeddling with litigation in which the intermeddler has no concern. To make such agreements void, “there must be something against a good policy, and justice, something tending to promote unnecessary litigation, something that in a legal sense is immoral, and to the constitution of which a bad motive in the same sense is necessary.” 

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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 Accord and Satisfaction as well as the various related aspects of discharge of torts under the law of torts.

What is the law of tort?

The term ‘tort’ has its origin from the Latin term ‘torture’ which means to twist or the conduct which is twisted or tortious. The basic principle underlying tort law is that there is a duty of care towards everybody, which is implied under the law, and no one should be harmed by the actions of others.

As per the common law jurisdictions, a tort is a civil wrong that unjustifiably causes someone else to suffer loss, harm or injuries resulting in the legal liability for the individual who committed the tortious act, known as the tortfeasor. Even though crimes can be torts, but the reasons for legal action is not inevitably a crime, as the reason for harm may be due to negligence which does not lead to criminal negligence. The legal injuries are not limited to the physical injuries but also includes economic, emotional, reputational injuries as well as violations of privacy, property or constitutional rights. 

Discharge of Torts

Discharge of tort is a term used for referring to the circumstances where the liability exists but remedy does not. The literal meaning of discharge of tort is coming to an end of tort. It is a process where a wrongdoer is not liable for the wrongs committed by him though the tort cease to exist. Following are the seven modes for the discharge of tort: 

Waiver by election

When a man has more than one remedy for a tort, and he elects to pursue one of them, giving up the others, the other remedies are said to have been waived off. He cannot pursue them if he fails in the one elected. Such waiver may be express or implied: It is in express, when the person entitled to anything expressly gives it up, in which case it nearly resembles release; it is implied, when the person entitled to anything, does or acquiesces in something e which is inconsistent with that to which he is so entitled. The phrase “waive the tort” does not mean that the act of tort itself is waived rather it is only the right to recover damages for the tort committed, that is waived.

Death of the parties

‘Action personalis moritur cum persona’ is the common law maxim that applies here, which means the personal right of action dies with the person. There is a possibility of two situations in case of death of parties:

 1) Death of wronged person, i.e., against whom the tort is committed.

 2) Death of wrongdoer, i.e., who has committed a tort.

If there has been the death of the wronged person, the legal heirs can claim damages from the defendant for the proprietary wrong, i.e., if the tort was committed against property, in the case of nuisance, trespass, negligence, fraud, waste, etc. But if there has been a case regarding personal tort, then the defendant cannot be sued which means that even in case of death of wrongdoer the legal heir of the deceased is not liable for the personal tort of the wrongdoer.

Personal torts are referred to those torts which are affecting the mind and body of the person, i.e., assault, battery, false imprisonment, defamation etc.

Accord and Satisfaction

Accord refers to an agreement whereby a person agrees to accept some valuable consideration in lieu of the right of action that he has against the other. Satisfaction means actual payment of an amount of consideration so agreed to when there is an agreement, and it is satisfied by its executors, the agreement is termed as an accord and satisfaction, and it discharged the tort.

Release

A release is meant as the giving up or discharging of the right of action which a person has or may have against another man. But a release executed under a mistake or in ignorance of one’s rights, or obtained by fraud, is not valid.

A covenant not to sue at all is equivalent to a release and may be pleaded in bar. A mere covenant not to sue one of two joint tortfeasors does not operate as a release so as to discharge the other.

Acquiescence

In cases where a person who is aware that he is entitled to enforce a right, neglects to do so for a period of time, the other party may fairly infer that he was waived or abandoned his right. But to deprive a man of his legal remedies, there must be something more than mere delay.

Direct acquiescence takes away the right of action.

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Judgement recovered

The cause of action against a wrongdoer in respect of wrong is extinguished by a judgement obtained in a court of law. The judgement is a bar to the original cause of action, because it is thereby reduced to a certainty, and the object of the suit attained, so far as it can be at that stage; and it would be useless and vexatious to subject the defendant to another suit for the purpose of obtaining the same result. The person injured cannot bring a second action for the same wrong even though it is subsequently found that the damage is much greater than was anticipated when the action was brought. If in an assault a person sustains a broken arm and a broken leg, he must sue for both the injuries in the same action.

Statutes of Limitation 

There is a difference between wrongs which are actionable per se, and others which are actionable only where the plaintiff can prove that he has suffered actual damage. The period of limitation runs, in the first case, from the time of the plaintiff’s first sustaining actual injury.

In England, the Limitations Act, 1980 fixes the time during which actions of tort must be brought. However, Section 14A of the Limitation Act, 1980 will not apply to claims for negative declaratory relief as to the absence of liability in torts. 

Accord and Satisfaction 

The term “accord and satisfaction” is used for referring “the legal consequence of a petitioner’s acceptance of a substitute performance for a previously existing claim or prior obligation or duty.” As the name implies, accord and satisfaction consist of two distinct parts. The “accord” of an accord and satisfaction is an agreement in which the creditor promises to accept the substitute performance for the pre-existing claim or duty. The “satisfaction” is the actual acceptance by the creditor of that substitute performance. These terms are used together to represent the legal consequence of accepting performance of the accord as satisfaction, the legal consequence being the discharge of the prior claim or duty. There are three prior essentials required for a valid discharge of an existing claim or duty by accord and satisfaction: 

1. Existence of a claim or duty, 
2. Offer and acceptance of a substitute performance in full settlement, and 
3. Proper consideration.

Under the Law of Tort

When the agreement is executed, and satisfaction has been made, the arrangement is called accord and satisfaction and operates as a bar to the right of action. An accord and satisfaction in favour of one joint tort-feasor operate in favour of them all when the injury is one and indivisible. It can then give rise to but one cause of action, and consequently, if satisfaction is accepted as full and complete as against one person, it operates with respect to the entire cause of action.

Where only damages are to be recovered, accord and satisfaction is a good plea, i.e., action for personal injuries, actions for libel. But when a person has agreed to accept a sum for personal injuries, and subsequent damage not within the contemplation of parties, when the agreement was made, arises, the original accord and satisfaction will not prevent him for bringing an action for further injury.

Accord without satisfaction does not bar the right of action. But if what is accepted in satisfaction is merely the promise and not the performance thereof, the cause of action is discharged from the date of the promise. It is a matter of construction, whether what was accepted in satisfaction was the promise or its performance.

Analyzing Accord and Satisfaction

In order to analyze accord and satisfaction, the first step is to determine the following question:

1. Whether the obligation is liquidated or unliquidated.
2. Whether it is disputed or undisputed. 

Liquidated or Unliquidated 

Liquidated refers to the precise amount which has been decided by the parties or determined by the litigation or through the legal process – For instance, an agreement between an attorney and his client that the attorney will perform services for a fee of Rs.10,000, then it results in a liquidated obligation, where the amount has already been determined. 

Unliquidated refers to a situation where there has been an agreement that the attorney will give the bill to the client according to the reasonable value of his services and renders a bill of Rs.10,000, this results in unliquidated obligation, where it has not been decided priorly.

Disputed or Undisputed

Whether an obligation is disputed or not is decided by the defence raised in good faith.

Having classified the obligations, the next step is to determine

(1) whether it is both liquidated and undisputed, or 

(2) whether it is either unliquidated or disputed. 

Through this, the parties can conclude an agreement to accept partial performance in full satisfaction of an unliquidated or disputed obligation, which is a form of contract called an accord. The agreement hovers until it has been fully performed and its full performance is known as satisfaction.

Under Contract Law 

An overall analysis of the judicial decisions indicates that the principle of Accord and Satisfaction have been more applicable in the field of Contractual Law than in Tort Law. There is another interesting application of this principle to the Arbitration trials. In Russell on Arbitration, it is stated that an accord and satisfaction may be pleaded in action on the award and will constitute a good defence.

Cases 

There are a no. of cases in the Indian courts related to the principle of “accord and satisfaction”:

• Payana Reena Saminathan v. Pana Lana Palaniappa (reiterated in Union of India v Kishorilal Gupta and Bros, AIR 1959 SC 1362): This case gave the classic definition of the term “accord and satisfaction” as mentioned herein –

“… The ‘receipt’ given by the appellants and accepted by the respondents, and acted on by both the parties proves conclusively that all the parties agreed to a settlement of their existing disputes by the arrangement formulated in the ‘receipt’. It is a clear example of what used to be well known as common law pleading as ‘accord and satisfaction by a substituted agreement’. No matter what were the respective rights of the parties inter se, they are abandoned in consideration of the acceptance by all for a new agreement. The result is that when such an accord and satisfaction takes place, the prior rights of the parties are extinguished. They have in fact been exchanged for the new rights, and the new agreement becomes a new departure, and the rights of all parties are fully represented by it.”

• National Insurance Company Limited v. Boghara Polyfab Private Limited : In this case it has been mentioned that the discharge of contract by performance is referred to the fulfilment of the contractual obligations by performance, discharge through “accord and satisfaction” refers to the contract that is being discharged by the performance of certain substituted obligations. The agreement through which the original obligation is discharged is the accord, and the fulfilment of the substituted obligation is the satisfaction.
• Union of India v. M/s Ajit Mehta and Associates, Pune and Others, AIR 1990 bom 45
• P.K. Ramaiah and Company v. Chairman & Managing Director, National Thermal Power Corporation, 1994(1) SCALE 1
• S.C. Konda Reddy v. Union of India and Anr, AIR 1982 Kant 50

Conclusion 

Accord and satisfaction can be referred to as the principle that attempts to find a middle ground between the interests of the wronged party and the wrongdoer. It is reasoning which is in human nature since time immemorial. In regards to the huge no. of pending cases in the Indian courts, there is an important need for the alternative remedies or methods of resolution, and hence this doctrine proves to be a very effective tool in solving the crisis. Even though it has a wide scope, its efficacy in the field Tort Law is the responsibility of the legal system to determine and lay emphasis on. 

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This article is written by Deepanwita Sengupta, Fourth-year Student of Amity Law School Delhi GGSIPU.

“A clean environment is a human right like any other. It is, therefore, part of our responsibility toward others to ensure that the world we pass on is as healthy if not healthier than we found it”- Dalai Lama

Abstract

The theme I have chosen for this essay is Perspectives on Environmental Law & Policy. The essay aims to highlight the rise of Environmental justice & its development in the light of Right to grow in a healthy environment as they both go hand in hand, they are not mutually exclusive, The Supreme Court has made it very clear that Right of enjoyment of pollution-free environment must be guaranteed for enjoyment of life under Article 21 of our constitution.

A Right to grow in a healthy environment must be accepted in reality and in our legislation sooner rather than later as its high time that we accept the deteriorating conditions of the environment we live in rather than pestering on about its existence and immediate action needs to be taken to ensure human rights and survival. As a matter of fact, we all know and it is extensively recognized that conflicts and disputes over the causes, reasons and consequences of the environmental degradation, complicates efforts to formulate and devise an effective system making it more of a discourse and hinders the addressing of issues such as right to clean environment of all human beings.

Hence steps need to be taken immediately so that this Right to a healthy environment can be properly addressed and our right to a wholesome environment becomes reality and enforceable not only under the apex court’s activism but rather as our right guaranteed by the constitution.

Environmental Justice: Introduction

Environmental Justice in the crux means the rational sharing of the burdens and costs incurred in the process of the protection of the environment, discharged through the procedural and substantive adjustments of rights and duties of the people and the states. This is not restricted to the distribution and division of resources among the present populations, but also pertains to intergenerational equity, i.e. the emerging notion that believes that we humans have a special obligation as custodians or trustees of the planet towards the future generations that are to come to preserve our planet and maintain the planet’s integrity and ensure the survival of the human race.

Nature is not anyone’s property, it is one area of human life where everyone is equal and has equal rights, land, air, water belongs to the whole community as it is not for an individual to own or sell and earn a profit, it for the whole society to share. Environmental justice will not be a success without appropriate law and governance behind it to provide it with the strong foundation and support it needs to stand its ground and help in creating a sustainable future. Development and environment are intertwined with one another and are not mutually exclusive as one can’t be achieved without the progress of others.

Environmental law and justice is not confined to a particular society but it takes into consideration and reflects on the broader arena i.e. our whole world it is a mixed concept consisting of the various forms of national, supranational, international and transnational laws. Environmental justice is goal-oriented and works towards achieving the goals such as sustainable development keeping in mind the main priorities, conflicts, clashes of various interests and most importantly working towards justice and fairness.

Addressing the Issues of Right to Healthy Environment: International Perspective

A right to grow in a healthy environment is a right available to every human being breathing on this earth irrespective of who they are and where they come from as we saw in the 1992 UN Declaration on Environment and Development held in Rio also known as Rio Declaration, which highlighted the linkage between environmental degradation and how this leads to poverty. The declaration also emphasised on the different economic and social conditions for different states and member nations of the UN which includes both developed and developing countries, the main aim is that everyone moves forward towards to a healthy environment and there shall be no discrimination or differentiation in adherence to which Rio Declaration even sets out the principle of ‘common but differentiated responsibilities’.

The 2000 UN Millennium Declaration too stated that “Global challenges must be managed in a way that distributes the costs and burdens fairly in accordance with basic principles of equity and social justice. Those who suffer or who benefit least deserve help from those who benefit most.” The declaration through its statement clearly indicates that under environmental justice considerations and benefit should not be limited to a certain part of the society, but rather involve the concerns for each and every individual in the world concerning with all international relations.

Environmental laws must be made to address the concerns of the public keeping in mind the needs and necessities of the citizens to live in a healthy environment, hence the dominating governmental principle of ‘efficiency in priority, fairness in balance’ practiced among may nations including India has been criticised for being one of the fundamental causes of social unfairness and environmental injustice. Environmental laws can only be successful and can achieve the goals of protection and preservation of the environment when they give equal weight to both the power of the public administration and opportunities for citizens and the general public.

Right to Grow in Healthy Environment

Environmental Justice has gained growing importance in our society because of the disastrous impact of ‘warfare’ and militarism, on the human environment which includes high-tech warfare which is directed at destroying infrastructure and affecting the civilian population, hence creating a massive hindrance on the ‘Right to Grow in a Healthy Environment’. Right to grow in a healthy and wholesome environment is our basic human right and has also been given recognition by the Rio Declaration of 1992 where it draws notions of human rights. The law and stipulates that:

“Environmental issues are best handled with the participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided.”

To claim the Right to a Decent Environment there has to be public participation, where they can claim that their rights have been infringed the established way of community participation in India is to bring a case to court with a claim of a violation of a constitutional right or Fundamental right, e.g. the Right to life, along with various other provisions or environmental regulations. The growing influence of the Indian courts in the Environmental justice field is due to the introduction of the Public trust doctrine, which makes it possible for members of the public or citizens of the country to question the ineffective management of natural resources. In India, the state has a duty to protect and preserve the environment. This is part of the Directive Principle of State Policy but does not imply a Fundamental right, because the right to life is a fundamental constitutional right but the right to a healthy environment, on the other hand, is not an express constitutional right. The Supreme Court of India under its interpretation declared the Right to life guaranteed by Article 21 of the Constitution to include the Right to a wholesome environment. 

This essay analyses how the government addresses this concern of Right to a healthy environment to achieve the common good, by reflecting on the ‘efficiency in priority, fairness in balance’ and giving more power to a “balancing” or “cost-benefit” approach to development over the human right to a healthy environment. One of the fundamental human right is right to life and due to the increasing ecological danger due to environmental degradation it has come under threat and the need to incorporate human survival which no other government institution or individual can violate is now urgent and more important than ever because environmental dangers are a reality and environmental justice demands it. There is a plethora of laws that deal with environmental degradation and taking human interests into consideration like as we have seen in Agenda 21 in Rio that deals with laws to check air, noise, water, biosphere pollution etc., but these laws do not meet the demands of environmental justice and their impacts have not been great because right to environment has not yet become a part of our human right. The laws passed till now in our country are only in reaction to the deteriorating and disastrous living conditions that have become a huge problem and threat to healthy environment, compensation paid in violation of the environmental degradation is not the proper action but only a temporary relief which is not actually addressing the main, growing concerns of violation of our inviolable nature laws but is only calculating human rights in value of money, which should certainly not be the case as Right to live in a clean and healthy environment cannot be monetised as it is invaluable.

One of the biggest concern and discourse we face in our country is that our constitution does not provide a right to promote, encourage and include public participation in the protection and preservation of the environment and neither does it provide a proper mechanism for maintenance and balanced exploitation of natural resources nor does it set out that the state owns the natural resources. It doesn’t even ensure that the natural resources of the nation are developed, preserved and utilised for the benefit of all citizens of the country irrespective of their backgrounds. The need to address environmental concerns and resource protection in our constitution is important and vital because constitutional level attention means that their protection does not depend on the interpretation and opinion of the judiciary. The constitutional enactment in a country offers an opportunity to promote methods, introduce techniques and chalk out plans to protect the environment and address resource concerns at the highest and most visible level of the legal order.

The trend during the 1980s and 1990s in the environmental justice field saw that there was an influx of litigation and cases in our courts dealing with water, mining and forest conservation. These suits were filed by both individuals as well as community groups. In many of these cases, court had no other option available other than directing the government bodies to take action as they breached a fundamental constitutional right, or set up a committee to monitor and look into the situation and report back to the court for further action, which further delayed the required results and necessary actions, hence enforceable and stricter actions were required. Many of these cases are still pending in the courts for hearing, and it shows that litigation is a lengthy, tiresome and expensive process in this part of the world. Moreover, these litigations bring our attention to the critical and intense relationship between poverty, development and environmental issues. There must be proper ecological balance and environmental cleanliness as it is or basic human right, human or any other forms of life on this earth depends on environmental quality and can survive only as long as there is a healthy and clean environment, hence any action that destroys ecology and environment is against our human rights. Each individual being and community as a whole has a right over the natural environment, any injury to nature or environment around us is an injury to the human interests, hence we know as a matter of fact that right to grow in a healthy environment is a reality and not a mere discourse.

This essay analyses how the government addresses this concern of Right to a healthy environment to achieve the common good, by reflecting on the ‘efficiency in priority, fairness in balance’ and giving more power to a “balancing” or “cost-benefit” approach to development over the human right to a healthy environment. One of the fundamental human right is right to life and due to the increasing ecological danger due to environmental degradation it has come under threat and the need to incorporate human survival which no other government institution or individual can violate is now urgent and more important than ever because environmental dangers are a reality and environmental justice demands it. There is a plethora of laws that deal with environmental degradation and taking human interests into consideration like as we have seen in Agenda 21 in Rio that deals with laws to check air, noise, water, biosphere pollution etc., but these laws do not meet the demands of environmental justice and their impacts have not been great because right to environment has not yet become a part of our human right. The laws passed till now in our country are only in reaction to the deteriorating and disastrous living conditions that have become a huge problem and threat to healthy environment, compensation paid in violation of the environmental degradation is not the proper action but only a temporary relief which is not actually addressing the main, growing concerns of violation of our inviolable nature laws but is only calculating human rights in value of money, which should certainly not be the case as Right to live in a clean and healthy environment cannot be monetised as it is invaluable.

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The laws related to environment that are passed and enforced is not based on the recognition that clean environment is a human right but mainly based on the fact that pollution and degradation of quality causes diseases, ill health and major impact on human life, our legislation and law policymakers need to understand that plants and animals are necessary elements of the total environment for better future of humanity and society at large. As ecological balance is a necessity for human survival it is basically our human right, no one should be allowed to take the ecological rights of others as no one can own nature, hence our constitution has granted us some rights to act as the custodians of the Earth although there is a need to broaden the scope.

Right to Healthy and Clean Environment: Indian Context

Indian efforts regarding environmental protection and right to clean environment started only after Stockholm Conference of 1972, before that the COI adopted in 1950 did not expressly deal with the ‘Protection of Environment’ or ‘Environmental Justice’, nor did it contain any specific provision that addressed the issue. But after the Forty- Second amendment in our constitution in 1976, there was an express constitutional commitment towards the protection and safeguarding of the environment. DPSP that addresses directives to the State was amended to impose an obligation on the State to protect and improve the environment and to safeguard forests and wildlife in the country, whereas for the citizens it introduced a duty to protect and improve the natural environment. These steps highlighted how important it is to take care of the environment with the growing environmental concerns and also brought the attention of the judiciary towards this situation and brought a more ‘judge-induced’ and ‘judicially-administered’ environmental jurisprudence. These laws are fundamental to bring environmental justice and strengthen environmental laws. The state is obliged to form the socio-economic policies by keeping the bigger environmental perspectives in mind.

Under the case of A.P Pollution Control Board V Prof. M.V Nayudu, Justice Jagannath Rao stated that the government must ensure that there is neither danger to the environment nor to ecology, so as to ensure proper human survival and their right to a clean environment and simultaneously ensuring sustainable development.

In Rural Litigation and Entitlement Kendra V State of UP, the apex court observed that hindering development activities that harm the environment and human rights will undoubtedly cause hardship on the economy but it is a price that needs to be paid for protecting and safeguarding the right of people to a healthy environment with minimal disturbance of ecological balance. One of the bigger concerns of our developing society is that our constitution does not confer an express constitutional right to healthy and pollution-free environment on individual, which needs to be addressed sooner or later and needs to be made into a reality rather than just a discourse, but we can see instances of some cases where judiciary took a stand on this matter.

Right to Hygenic Environment: Constitutional Perspective

As there is no constitutional provision till date that addresses right to environment, the only thing that is even close to its nature and can help the citizens safeguard their rights is the Right to Life under A-21 of the COI 1950, which guarantees life and personal liberty, the apex court encouraged PILs so that people deprived of their constitutional rights can get justice. Right to Healthy Environment, right to quality life, right to the pollution-free environment are all integral parts of A-21 and is a derivative of Right to life, which has been held by the Supreme Court and High Courts in numerous cases.

In this case, Supreme Court held that the limestone-mining activities happening in Mussorie-Dehradun region caused ecological disturbance and violated right to life of the people of that region and implicitly declared that right to clean environment is a part of the right to life.

In Charan Lal Sahu V Union Of India, Justice K.N Singh in this case held that within the dimensions of human rights one must also include right to life, liberty, pollution-free air and water which is guaranteed by our constitution under Article-21, 48A and 51A(g) and State has a duty to safeguard these rights and its execution.

In the landmark case of Subhash Kumar V State of Bihar, it was held that Right to live is a fundamental right and hence it includes the right to the enjoyment of pollution-free environment for complete and full enjoyment of life. And also emphasised that if anything endangers or impairs that quality of life that a human being deserves, a citizen has the right to have recourse to A-32 of the Constitution.

In Virender Gaur V State of Haryana, again reclaimed their earlier stand that enjoyment of life and its attainment includes right to live with human dignity which encompasses protection and preservation of the environment, ecological balance free from pollution. Therefore, hygienic environment is an integral part of healthy life and healthy environment, hence the State must strive forward to not only ensure to protect and safeguard the proper environment but also to make it a reality and not a mere discourse with appropriate and adequate measures to promote, protect and improve human life and environment.

In the case of Goa Foundation, Goa V Diksha Holding (Pvt.) Ltd. It was that society shall prosper, but not at the cost of environment and human right to a clean environment, hence a balance must be achieved so that there shall be both development and proper, clean environment.

Under the case of Dr. B.L Wadhera V UOI also known as the Delhi Garbage Case the apex court in very clear words declared that right to live in a clean and healthy environment is a fundamental right and hence needs to be adhered to and followed in every practice.

In this case, Justice Jagannath Rao whilst giving the judgment stated that environmental aspects concern the right to life and human rights concerns the aspect of liberty, both enshrined under A-21 of the COI 1950 and with the growing environmental problems courts must render justice in all considerations under environmental jurisprudence. The apex court decided that ‘healthy environment’ and ‘sustainable development’ were fundamental rights implicit in the right to life.

There is a growing trend of calling the ‘environmental rights’ as ‘third generation rights’ by various jurists. A right to grow in a healthy environment comes under the ambit of A-21 i.e. right to life as it contains everything that human needs to live his/her life with dignity. So that life feels meaningful, complete and worth living. Creating havoc and nuisance to others through noise pollution which creates discomfort and disturbs the peace and quiet of others is known as a noise pollutant and hence violates the right to life of the citizens guaranteed by the constitution and hence held to be hampering the human right to grow in a healthy and pollution-free environment as was held in the case of Re Noise Pollution.

Let’s take a look into the several cases that have challenged the legality of large dams, such as the dispute on the construction of the Sardar Sarovar dam. The emphasis of the PIL was on the relief and rehabilitation of a landless community living around the area of the Sardar Sarovar dam and their right to grow in a healthy environment which was effected due to the huge environmental damage. The Supreme Court in its decision decided that the people displaced by the reservoir construction should be properly resettled before submergence of their homes or lands, as they have a right to wholesome environment.  It was a very important judgement concerning human rights advocacy and represents a major milestone in international human rights norms concerning environmental justice. 

Conclusion

Although the bigger concern is that as long as right to clean environment is a weak right, its efficiency and adequacy depends upon judicial cooperation and activism of the apex court which makes this right more of a debate than a law, but taking in the recent series of changes from a constitutional point of view both the destruction, degradation of nature’s gifts without which enjoying life is not possible and slow poisoning by the polluted atmosphere caused by pollution of environment and further spoiling it for future generations should be regarded as violation of A-21 of COI 1950. The inflow of high amount of writs for enforcement of the newly recognised fundamental right to protection of environment has made right to grow in a healthy environment more of a reality than a discourse with implementation of positive duty of the state to protect and preserve the environment with the help of environmental jurisprudence and judicial infusion.

References

1. Shelton, D. (2009). Describing the elephant: International justice and environmental law. In J. Ebbesson & P. Okowa (Eds.), ENVIRONMENTAL JUSTICE AND JUSTICE IN CONTEXT (pp. 55-75). Cambridge: Cambridge University Press. 
2. J. Ebbesson & P. Okowa (Eds.), ENVIRONMENTAL JUSTICE AND JUSTICE IN CONTEXT (pp. 55-75). (Cambridge University Press, 2009)
3. See, United Nations Declaration on Environment and Development, UN Doc. A/CONF.151/26/Rev.1 (1992), 31 ILM (1992) 876.
4.  Rio Declaration, 1992, Principle 7.
5. See, United Nations General Assembly, Resolution 55/2, United Nations Millennium Declaration (A/55/L.2, 18 September 2000), para. 6.
6. Rio Declaration, 1992, Principle 10.
7. Richard P. Hiskes, THE HUMAN RIGHT TO A GREEN FUTURE, ENVIRONMENTAL RIGHTS AND INTERGENERATIONAL JUSTICE (Cambridge University Press, 2009).
8. Constitution of India, 1950, Art. 21. 
9. The Rio Declaration on Environment and Development 1992.
10. R.P Singh. Ecological balance as a human right. In R.B Singh & Suresh Misra (Eds.) ENVIRONMENTAL LAW IN INDIA: ISSUES AND RESPONSES (pp. 20-26). Concept Publishing Company, 1996.
11.  Rosencranz and Divan, ENVIRONMENTAL LAW AND POLICY IN INDIA (pp. 583-601), 2nd Edition, 2001.
12. R.B Singh & Suresh Misra (Eds.) ENVIRONMENTAL LAW IN INDIA: ISSUES AND RESPONSES (pp. 20-26). Concept Publishing Company, 1996.
13.  The Rio Declaration on Environment and Development 1992.
14. R.P Singh. Ecological balance as a human right. In R.B Singh & Suresh Misra (Eds.) ENVIRONMENTAL LAW IN INDIA: ISSUES AND RESPONSES (pp. 20-26). Concept Publishing Company, 1996.
15.  United Nations Conference on the Human Environment, Stockholm 1972.
16.  Constitution of India 1950.
17.  Aruna Venkat, ENVIRONMENT LAW AND POLICY (pp. 51-68). Eastern Economy Edition.
18.  42nd amendment to the Constitution of India, The Constitution Act, 1976.
19.  Directive Principles of State Policy.
20. Constitution of India, 1950, Art. 48(A). 
21. Constitution of India, 1950, Art. 51-A (g).
22.  M.C Mehta V Kamalnath and Others, AIR 2000 SC 1997.
23. AIR 1999 SC 812.
24. PIL- Public Interest Litigation.
25. AIR 1990 SC 1480.
26. Constitution of India, 1950, Art. 32. 
27. AIR 1990 SC 420.
28. (1995) 2 SCC 577 SC.
29.  AIR 2001 SC 184.
30.  AIR 1996 SC 2969
31.  re Noise Pollution– Implementation of Laws for Restricting Use of Loudspeakers and Hugh Volume Producing Sound Systems with Forum, Prevention of Environment and Sound Pollution V Union of India, (2005)5 SCC 733.
32.  Deena R. Hurwitz, Margaret L. Satterthwaite, Douglas B. Ford, eds., West, The Story of Narmada Bachao Andolan: Human Rights in the Global Economy and the Struggle Against the World Bank, 2009 NYU School of Law, Public Law Research Paper No. 08-62, available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1315459
33.  Narmada Bachao Andolan v. Union of India (2005) 4 SCC 32.

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This article is written by Sahajveer Baweja, pursuing a B.A.LL.B (Hons.) from Rajiv Gandhi National University of Law Patiala.

Abstract

Feminist jurisprudence is a burgeoning school of legal thought that involves many theories and approaches to law and legal subjects. Constitutional feminism is an important topic which needs to be highlighted at this stage. A country’s constitution, even where it may appear neutral, impacts disparately or differently with respect to gender. Gender equality is a familiar concept to many. The architecture and design of the constitution should be that, it needs to give every citizen equal rights. Women due to a troubled history have been termed as disadvantageous sex as compared to men and further their rights should be protected.

Our constitution has provided in article 14 read with article 12 that ‘state shall not deny to any person “equality before the law or the equal protection of the laws within the territory of India” and further no discrimination on grounds of religion, race, caste, sex or place of birth’. With knowledge to this, article 15(3) also provides the provision where nothing shall prevent the State from making any special provision for women and children. These rights ensured to the women are the hope for equal representation. Constitutional design can never be settled with finality. A constitution will always be liable to alteration, either expressly or through shifts in interpretation that arise through changes in jurisprudential and methodological “fashion”. The recent judgements related to decriminalization of same-sex [section 377 (I.P.C)], the unconstitutionality of Adultery [Section 497 (I.P.C)] and entry of women to Sabrimala temple have won us the confidence in the feminist jurisprudence. Likewise, some of the past judgements have changed the dimensions of patriarchal society leading to a horizontal application of equality and dignified life to every citizen irrespective of discriminations.

Introduction

Feminism in Constitution

Our constitution is a set of fundamental ideologies and written codes that is itself promoting equality between sexes. Equality means that men and women should be treated alike in all the circumstances unless an intelligible differentia with rational reasoning is proven. The different waves of feminism have endeavoured to change the vision of the society which carries a patriarchal ideology. Modern feminism has the set goal to eliminate gender distinctions and to promote absolute equality in all the areas. To ascertain their goal, our constitution has already embedded this philosophy.

B.R. Ambedkar, the draftsman of the constitution was the feminist before feminism who certainly ensured that women who were once deprived with power and were treated unfairly should be treated with the same pair of lenses in the post-independence period. The framers of the constitution of India were conscious of the discrimination and unequal treatment of women in every field of their lives and violence against them including domestic violence. In one of the speeches said by the Justice Chandrachud, he mentioned that our constitution is itself feminist because feminism is a lot about the disruption of social hierarchies and that is what the constitution intends to do. Our constitution agrees to the fact that women are weaker section and they should be provided with benefits so that their standards can be equally matched with that of men. 

Where is the Problem?

The problem occurs at the time of interpretation. Constitution to its core has demanded equality but the interpreters have made it an arduous job.  It is true that woman in today’s time is still falling under the realm of Moral slavery. Male dominance or the patriarchal structure of the society has turned out the societal vision and has given ‘women’ the status of subordinate gender.  The vulnerable status of women is one of the issues that have not yet witnessed a radical change in the era of globalization and liberalization. The eternal truth of the constitutional morality is that no country can see the full swing of development in the field of the social or economic sector until the quandaries of women are addressed and are further mitigated.  Let’s take an example; the constitution says that women are a weaker sex. The interpretation of this should be liberal and should state that women at one time were in a weak position and consequently need assistance to function as said equals. The wrong interpretation of the same is seeing the women as a weaker sex in today’s time just because the constitution has termed this. It all depends on how the society is interpreting the law.

Laws for Women in the Constitution of India

Laws for women exist from the commencement of the constitution when ‘We the people’ have agreed to the ideologies of equality, liberty, etc. The problem that is causing the undue delay in providing justice is that women are afraid to seek a remedy through law enforcing agencies. They are still living in the 3rd world where the stress of male domination manifests itself in the form of various cruelties. The Indian constitution was very much conscious about the interests of women and to provide them with the tag of equal to their counterparts. The efficiency factor is criticized on the grounds of the enforcement agency as it remains neglected. The Judiciary aided the process of equalization during the post-independent period. However, the most sacred object, “the constitutional mission of equalization” couldn’t be achieved due to ignorance of the law and the indifferent and hostile attitudes of law-enforcing agencies and also the lack of community support for women seeking against discrimination.

Preamble

Our constitution has taken all the protective measures to protect the interest of women in our constitution. Analysing the preamble of the constitution, in the case of National legal service authority V. Union of India, it was held that the concepts of justice social, economic and political, equality of status and of opportunity and of assuring dignity of the individual incorporated in the Preamble, clearly recognize the right of one and all amongst the citizens of these basic essentials designed to flower the citizen’s personality to its fullest. The concept of equality helps the citizens in reaching their highest potential’ Social justice does not mean equality before the law in papers but to translate the spirit of the Constitution, enshrined in the Preamble. The preamble is not the source of power but it gives a direction to the constitution. The Preamble again assures ‘dignity of individuals’ which includes the dignity of women.

Our compassionate Constitution, the Fountain Head of all laws, is gender-sensitive. It certainly clears that the mind-set of the constitution framers was based on the concept of equality and positioning women equal at every sphere.

Fundamentals Rights

Talking about equality, our constitution has provided us with certain rights and provisions which protect the positivist equalism atmosphere. Article 14 and Article 15 read with Article 12 reflects the thinking of our constitution-makers and further prevent women against gender discrimination. The interpretation of the Article 14 in the light of gender equality states that all persons including women are equal in the eyes of the law and they are also entitled to enjoy equal protection of laws within the territorial jurisdiction of India. Law and the nation should treat men and women equally in similar circumstances. Article 15 whereas protects the women from any kind of discrimination. Within the article 15, clause 3 gives the power to the state to make any special provision for women and children so that the concept of equal protection of law remains stable in the cases where same treatment would have received but was infringed. This provision is recognized keeping in mind the fact that the women in India have been socially and economically handicapped for centuries and this all led to less participation in the socio-economic activities of the nation on a footing of equality. The core ideology behind the provision is to provide women with a platform and to eliminate the socio-economic backwardness of women and certainly empower them.

No doubt, democracy provides equal opportunities for all in the decision-making process. Women as free citizens, and constituting almost half of the population, are theoretically able to redress their grievances through democratic means. But due to socio-economic reasons and cultural patterns, they are not effective players of the game of democracy. The disadvantages of democratic process and risks of parliamentary majoritarianism make it imperative that a pro-woman and anti-subordination interpretation of Constitution and laws shall be made and under the light of positive discrimination further this provision was created.

In the following case Bodhisattwa Gautama v. Subhra Chakraborty, the court talked about the need for laws which shall curb the practices of dominance analysis that is found in our patriarchal society. The court held that’ Unfortunately, a woman, in our country, belongs to a class or group of society who are in a disadvantageous position on account of several social barriers and impediments and have, therefore, been the victim of tyranny at the hands of men’  it was held that certain laws helps to soothe the position of women in the society and further they are very much constitutional valid as they come under the legitimate title of positive discrimination which is fundamentally the rule of equal protection.

Directive Principles of State Policy

Article 39(a) and Article 39(d) of the Directive principle of state policy also talks about gender equality. The former article talks about having an equal right to men and women for an adequate means of livelihood whereas the latter supports equal pay for equal work for both men and women. Basically, the philosophy behind the Directive principle of state policy is based on maintaining a balance between individualism and socialism.  The DPSP has taken all the measures to cover the aspect of women in the post-modernist era. The framers had the long-sighted vision which allowed them to think of the problems, a woman would have faced in the changing trends of the society.  To support the fact, article 51(a) further talks about the provision which renounces practices derogatory to the dignity of women. 

Seeing the laws cumulatively, there is no going back to the thought that the constitution has forgotten the position of women. Certainly, our constitution framers have tried to incorporate as many provisions as they could think of which would have caused prejudice if the certain provisions were not available.

Patriarchal Interpretation of Laws

Protectionist Interpretation of Laws for Women

The laws are already there in the constitution favouring equality but still, a woman is in a disadvantageous condition even in the 21st century. Our society is still static and views a woman through the spectacles of a patriarch. Despite the broad horizon provided by the Constitution, the interpretations of these provisions have echoed the patriarchal and conservative nature of the Indian society. The courts itself while interpreting the laws, makes it difficult for understanding to the society at large. Court as a mechanism for providing justice tends to play the role of a protectionist. The interpretation of separate laws on the ground that the women are weak and are different from men creates an imbalance in the society. A man with ordinary prudence after reading certain things would surely think that women are weak compared to men and further laws are made for them. When such ideology travels in the air, discrimination and patriarchy turn out to be the ground.

Women are subjected to as subordinate to men when they are put under the status of the weaker sex. The constitution gave the tag of weaker sex keeping in mind the past discrimination that a woman has gone through. The economic and sociological prejudices in their past have made their progress rate slow and further, they need laws for the advancement. The Constitution nowhere mentions that women are weak in comparison to the men according to nature. Such patriarchal interpretations are prevalent for a long time.

Section 497 Judgement

 Taking an example of the law of Adultery which is now unconstitutional, earlier in the case of W.Kalyani vs State Tr.Insp.Of Police & Anr, it was held that only men can be prosecuted for the offense of adultery and women cannot be prosecuted. The judgment was further criticized on the grounds for showing a strong gender bias making the position of a married woman almost as a property of her husband. The women were seen as it was subordinate to men and our in the jurisdiction of them. It took almost 160 years for the court to understand that women are not a chattel and have certainly equal status that of men. After having the provisions of equality in article 14, the court continued to interpret the law biasedly. In the recent judgment of section 497, the court held that there cannot be a patriarchal monarchy over the daughter or, for that matter, a husband’s monarchy over the wife. That apart, there cannot be a community exposition of masculine dominance.

The judgment passed is a step towards gender neutrality but certainly, it is already too late to identify the prejudices that a woman have gone through. The absence in understanding the concept of gender neutrality by the courts after having the provisions laid down in the Constitution has resulted in the prima facie violation of women’s independence. 

Independent Thought v. Union of India Case

In Independent Thought v. Union of India,  a division bench of the Supreme Court of India read down Exception 2 to Section 375, Indian Penal Code (hereinafter, IPC), which now stands thus altered,“ Sexual intercourse by a man with his wife, the wife not being less than 18 years of age, is not rape”. Earlier the provision had prescribed the age as 15 rather 18. Sexual violence apart from being a dehumanising act is an unlawful intrusion of the right to privacy and sanctity of a female. It is a serious blow to her supreme honour and offends her self-esteem and dignity – it degrades and humiliates the victim and where the victim is a helpless innocent child, it leaves behind a traumatic experience. 

The “traditional practice” being referred to in the case deals with child marriage and the rights secured to women. The IPC sanctified the practice by allowing the husband of a girl child to have sexual intercourse with her, regardless of her consent, provided she was not under the age of 15. The Court identified the harm that the right of the girl child to maintain her bodily integrity is destroyed when her husband is given the full control over her body, thereby reducing her to nothing more than his property. By denying a whole category of women the right to refuse consent to sexual intercourse with their husbands, merely by virtue of being married, the IPC similarly destroys the right of this category of adult women to their bodily integrity. Thus, the basis of the violation of Article 21, as identified by the Court itself, is applicable equally, and in the same way, to adult married women, as it is to child brides.

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The need for the alteration was necessary because it was giving the undue advantage to the men who were protected from the ambit of rape. Law says that having sexual intercourse with women below 18 years is an offence, this law before alteration stands contradictory to it. It was submitted that to this extent Exception 2 to Section 375 of the IPC is not only arbitrary but is also discriminatory and contrary to the beneficial intent of Article 15(3) of the Constitution which enables Parliament to make special provision for women and children. In fact, by enacting Exception 2 to Section 375 of the IPC in the statute book, the girl child is placed at a great disadvantage, contrary to the visionary and beneficent philosophy propounded by Article 15(3) of the Constitution.

Protection of women has been always the mind-set of the constitution but the problem as stated in the interpretation. With the time, the ambit is getting bigger and the offences are being highlighted with more sincerity. In this case, only, the interpretation of the rape was given maturely and has been termed as one of the most heinous crime. In the judgement, Justice Madan B Lokur stated that “Rape is one of the most heinous crimes committed against a woman. It insults womanhood. It violates the dignity of a woman and erodes her honour. It dwarfs her personality and reduces her confidence level. It violates her right to life guaranteed under Article 21 of the Constitution of India” This judgement stood strong on the grounds of equality and justice for women and throws out the patriarchal laws that were once prevalent in our country.

Patriarchal Mind-Set of the Society

Different waves of gender equality including support of feminists have tried to formally remove institutionalized discrimination. Certainly, the core masculine mindset and the attitude carved in the subconscious have not been erased. Women’s dignity is still at an equal amount of danger and is open to different kinds of indignity and prejudice. The malady sometimes pounces with tight-fisted monstrosity giving a free play to the inferior legacies of nature in a man thereby creating the whole concept a mockery, threatening the entire edifice.

The traditional beliefs that the male member of the family should be held responsible for the arrangement of the livelihood and women’s business should only deal with household things needs to be attacked. Society needs to move with time and has to accept the changing trends.   

Less Representation of Women

Somewhere the lack of a gender-neutral interpretation and ideology is shaped and influenced by the persons who occupy them or practice them. To overcome such dominance and to exhale the wave of equality, it is important to place women in positions of power. Today the power itself is male-dominated as mostly men hold the important seats. Seeing the legislative assembly or the judiciary, power is in the hands of the majority. There is no second thought to the fact that judges do decide the issue by having personal assumptions in it. It is impossible to be totally objective because subjectivity comes inevitably. The core has to be gender-neutral so that the definition of justice itself is a dictum of equality.

Conclusion

Our Indian society’s patriarchal interpretation has made female a victim of social and psycho flows. Her shelter is the books of law. She relies on the legal fraternity to take her out of the abyss and she does so in the hope that she would be taken out from the darkness to light.   The woman is torn apart between the repulsive forces of ambition and patriarchal society. She ignites the lamp of the law so that she could come out of the disturbed condition. The constitution and certainly the laws are already in the ambit of gender neutrality. The interpretative issue that leads to the birth of laid-back philosophy causing uncalculated harm to the women fraternity should be dealt with utmost importance. 

Reinterpretation of Constitution with Changing Time

The constitution needs to be reinterpreted with time. The design of the constitution cannot be static and cannot be settled with finality. It is always liable to alterations and is always open to new an interpretation either expressly or through shifts that arise out of a change in methodological fashion or in response to social and technological development. Gender auditing will be essential that needs to be continued, even if the aims of equity and agency have thoroughly guided the original procedure of framing. Constitutional interpretation, tailored to the purpose of promoting and protecting gender equity, will involve a continuous commitment to bringing together purpose and current context.

Women have to be an Active Participant

 Enforcement of gender neutrality cannot totally rely on the judicial process. Women itself has to be aware of the rights and laws under which they are protected from discrimination. They have to fight against the practices which are against the constitutional morality.  The judicial biasedness towards men that results from the effect of a male-dominated patriarchal society create an impact on the court. Though some decisions are remarkably enlightened and can be seen as positive laws. The recent judgments of the Sabarimala temple, triple talaq and section 497 of I.P.C. are certainly some of the examples in which the court has accepted the notions of gender neutrality and moreover tried to incorporate in their exhaustive judgments. Still there are many judgments, however, in which courts are interpreting the legislation only on the basis of orthodox concepts and fail to give effect to the underlying social purpose of the Convention or legislation and such practices are need to be stopped so as to safeguard the position of women in the constitution as well as in the society.

References

1. Christina Villegas, True Feminism and the Constitution Are Compatible, The Daily Signal,  available at www.dailysignal.com/2016/08/26/true-feminism-and-the-constitution-have-always-been-compatible/, last seen at 21st September 2019.
2. Constitution Itself Is Feminist Justice Chandrachud on Transformative Constitution & Feminism, Live Law, available at www.livelaw.in/constitution-itself-is-feminist-justice-chandrachud-on-transformative-constitution-feminism/, last seen on 13th March 2019.
3. Richards, David A. J. Women, Gays, and the Constitution: the Grounds for Feminism and Gay Rights in Culture and Law, (1998).
4. Justice  P Sathasivan, Women and Children – Role of Courts, Special Training Programme for all District Judges and Chief Judicial Magistrates. Special Training Programme for all District Judges and Chief Judicial Magistrates, Tamil Nadu, Tamil Nadu State Judicial Academy. (2013) 2 LW (JS) 11.
5. Versha Sharma, Constitutional Provisions Relating to Women and International Instruments on Rights. 16-17 ALJ (2001-02).
6. A.I.R. 2008 5 SCC 438.
7. Justice Deepak Mishra, Women Empowerment and Gender Justice, Special Training Programme for all District Judges and Chief Judicial Magistrates. Special Training Programme for all District Judges and Chief Judicial Magistrates, Tamil Nadu, Tamil Nadu State Judicial Academy(2013) 3 LW (JS) 45.
8. Zoroastrian Coop. Housing Society Ltd v. District Registrar, Coop. Societies, A.I.R. (2005) 5 SCC 632.
9. Art. 15(3), the Constitution of India,
10. MP Jain, Indian Constitutional Law With Constitutional Documents, 112 ( 6th ed, 2010).
11. Ishwara Bhat, Constitutional Feminism: An Overview (2001) 2 SCC (Jour) 1.
12. A.I.R. (1996) 1 SCC 490.
13. Nalin Panwar Singh, Directive Principles of State policy envisioned in Indian Constitution: a critical review of its implementation in Madhya Pradesh, The Indian Journal Of Political Science 3, 323.
14. A.I.R (2012) 1 SCC 538.
15. Joseph Shine v. Union of India, A.I.R. (2018) 2 SCC 189.
16. A.I.R (2017) SCC OnLine SC 1222.
17. State of Karnataka v Krishnappa, A.I.R (2000) 4 SCC 75.
18. Subrata Dutta V. Mithu Dutta nee Sarkar, A.I.R  (2013) SCC OnLine Cal 13633.
19. Suo Motu Cognizance, (2013) SCC OnLine Del 5151.
20. Helen Irving, Gender and the constitution, Cambridge Up (2008).
21. Taslima Monsoor, Gender in Law: Five Decades of Struggle for Empowerment, (2001) 12 DULJ 39.

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 Khushnum Motafram, pursuing a Diploma in M&A, Institutional Finance and Investment Laws (PE and VC transactions) from Lawsikho.com.  Here she discusses “Different Types of Debentures and their Use”.

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Introduction

With the opening of doors to market globalization, every business house, whether a startup or a well-established business house needs funds from a third party for research and development to acquire a market edge over its competitors. These age of competitive business spares no one who struggles coming up with an innovative idea to capture the market share. Such business houses tend to fall even before they get started. The situation is worse for the startup businesses which along with the cut-throat competition also has restraint on financial stability to their despair. For a business house to acquire the market innovation which would work in their favor needs funds for research and development, innovation, implementation and what not. Now the question arises, where do these funds come from? In the corporate world, there are various sources from which such business houses can acquire funds from the market. Business houses can acquire funding by way of floating shares of the company in the form of equity and preference or can procure a loan from banks and financial institutions upon mortgage of company’s asset or can sale some of their shares to third party or can even float and issue bonds and debentures to third parties in accordance with the provisions of applicable laws. Since all these modes have their own advantages and disadvantages along with the procedural and legal requirements, business houses prefer to appoint professional advisors for understanding the implication of each and every mode.

Depending upon various scenarios, a business house and the professional advisor comes up with the best mode feasible to such houses. A business house which would want to retain control over itself would prefer floating of debentures as against the equity or preference shares given the dilution of ownership caused upon the issue of equity and preference shares. Sine, the cost of issuing debt is less than the cost of issuing equity, debt financing is one of the most lucrative ways of raising funds for business growth and development. 

Debentures

As discussed above, a debenture is one of the capital market instrument which helps business houses to raise funds from the market for the development of the business. The word debenture has been derived from the Latin word “debere” which means borrowing or taking a loan. In layman’s language, debenture can be defined as an acknowledgement of debt issued by the company to the third parties under the common seal of the company. In accordance with Section 2(30) of the Companies Act, 2013, debentures include debenture stock issued by the company as an evidence of debt taken by such company, either by creation or non-creation of the charge over the assets of the company. 

Salient Features of Debentures

Some of the salient features of debentures are as follow:

1. It is an acknowledgement of the debt;
2. It is issued by the company under its common seal;
3. Debentures can be both secured or unsecured;
4. The rate of interest and the date of payment is pre-determined;
5. Debentures issued are freely transferrable by debenture holders;
6. Debenture holders do not get any voting right in the company;
7. Interest payable to the debenture holders are charged against the profits of the company.

Provisions Governing Debentures

Following provisions of the Companies Act, 2013 governs the floatation, issue and allotment with regards to the debentures:

1. Section 2(30) – Definition;
2. Section 44 – Nature of debentures;
3. Section 71 – Provisions relating to issue and allotment of debentures;
4. Rule 18 of the Companies (Share Capital and Debenture) Rules, 2014 – Rules pertaining to issue and allotment of debentures.  

Types of Debentures

There are various forms of debentures which a company can issue depending upon its requirement. Debentures can be issued based on various factors i.e. performance, security, priority, convertibility and record. 

1. Based on Performance

Based on the performance, there are two types of debentures which are issued i.e.

• Redeemable Debentures

Redeemable debentures are the debentures where the date of redemption of the debentures are specifically mentioned in the debenture certificate issued, where on such date, the company is legally bound to return the principal amount to the debenture holder.

• Irredeemable Debentures

Irredeemable debentures continue for perpetuity and unlike redeemable debentures, there is no fixed date on which the company needs to pay the debenture holders. It becomes redeemable only when the company goes into liquidation.

2. Based on security

• Secured Debentures

When the debentures are issued by way of creation of charge over the assets of the company, then such debentures are called as secured debentures. The charge created over the debentures may be fixed or maybe floating. In accordance with the provisions of the Companies Act, 2013, such charge created has to be registered with the Registrar within 30 days of such creation.

• Unsecured Debentures

Unlike secured debentures, unsecured debentures are issued by the company without creation of charge over the assets of the company. In other words, these debentures do not offer any protection to the debenture holder in case the company is unable to pay the principal amount on the due date. 

3. Based on Priority

• First Mortgaged Debentures

Basically, the distinction of debentures based on priority can be called as a subcategory of the secured debentures. First Mortgaged Debentures are those debentures which has first preference over all the other debentures issued by the company. Such preference is claimed at the time of liquidation of the company when the assets of the company are distributed among the credit holders.

• Second Mortgaged Debentures

Second Mortgage Debenture, as the name suggests, has second preference over the assets of the company at the time of liquidation after the first mortgaged debentures. Only after the first mortgaged debenture holders are satisfied, will the second mortgaged debenture holders can claim their principal amount from the company at the time of liquidation.

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Click Above

4. Based on Convertibility

• Fully Convertible Debentures

Fully convertible debenture holders have the right to convert their debentures into equity shares of the company at a future date, at the option of the debenture holders. The conversion ratio, the rights of the debenture holders post-conversion and the trigger date for conversion are defined at the time of issue of these debentures.

• Partially Convertible Debentures

Partially convertible debentures can be divided into two parts. The first part being the debentures which are convertible to equity shares of the company and the second part being non-convertible debentures which shall redeem at the expiry of its tenure. An option is given to the debenture holder to partially convert its debt into shares of the company. Partially convertible debentures are also deemed as optionally convertible debentures. 

• Non-Convertible Debentures

Debentures which do not have an option to get converted into equity shares of the company are called non-convertible debentures. These debentures get redeemed at the end of the maturity period. 

5. Based on Record

• Registered Debenture

In case of registered debenture, the name, address, number of debentures and other details pertaining to holding are entered by the company in the register of debentures. In such cases, the transfer of debentures from one debenture holder to another debenture holder is recorded in the register of debenture holders as well as register of transfer. 

• Unregistered Debentures

Unregistered debentures are also called bearer debentures. Unlike registered debentures, the company does not maintain the records of such debentures and the principal amount and the interest is paid to the bearer of the instrument as against the name written over such instrument. These debentures are easily transferrable in the market.  

Use of Debentures

Debentures are issued by the company in order to raise funds from the market. Such funds are then used by the company for research and development and growth in the market. Debentures or debt financing is preferred over the issue of equity shares for two major reasons i.e. issue of debentures does not lead to dilution of the ownership in the company and the cost of raising funds through debt is cheaper as compared to cost of raising equity. 

Considering its various types, debentures are issued by the company as required by the investor investing in the company. In case the investor insists on issuing first mortgaged debenture to have an added protection over and above the secured debenture, the company may issue such debenture to the investor, which again depends on the necessity of funds to the company. In the usual course of business, registered non-convertible redeemable secured debentures are issued by the company as it provides protection to the investors against the failure of the company to repay the principal amount. Where the investor prefers to have a shareholding in the company after a fixed period of time, the company may be required to issue fully or optionally convertible debentures.  

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 Medha Tiwari, student of Shri Ramswaroop Memorial University, Lucknow, as an effort to explain the basic concept of property. After reading this article, readers will have a better understanding of the term property and various kinds of properties that exist.

Meaning of Property 

Introduction

The word property is used in numerous senses in general. If one looks around in the surroundings, everything available may be categorized as Property. Every object, whether tangible or intangible having some value to human beings, may be termed as Property. The essential characteristic of Property is the value attached to it. In one way or the other, it is a source of wealth. The value, although may be either monetary or personal. In a general sense, therefore Property consists of land, shares, buildings and debts due to another person. However, the term when used in the legal sense has a definite connotation. It is the right to enjoy and to dispose of certain things in an absolute manner as one thinks it fit. 

Origin 

The word “property” is derived from the Latin word proprietary and the French equivalent properties, which means a thing owned. The concept of property and ownership are very similar to each other. However, there is a fine line that distinguishes the two terms. It will not be incorrect to state that humans have been aware of their rights to possess what they rightfully own for long. The term property has been widely interpreted by various jurists such as Salmond, Bentham and Austin. Close observation of the definitions given by them will help us understand the concept in a better manner.

Definition of Property 

Eminent jurist Salmond while defining the term property, observed that the term might be understood in one of the three senses mentioned below:

(i) The term property includes all the legal rights of a person. That is to say that it includes complete ownership of a man on material as well as incorporeal things.

(ii) The term includes not a man’s personal rights, but only his proprietary rights.

(iii) The term includes the rights of ownership in material things such as building etc. According to another jurist, Bentham, the term property includes ownership of material objects alone. He has, in a way, interpreted the term in a narrow sense. According to Austin, Property denotes the greatest right of enjoyment known to the law, including servitudes. The Property includes both proprietaries as well as the personal rights of a man.

Interpretation of the word Property by the Apex Court of India 

The honorable Supreme Court of India in the case of R.C. Cooper vs. Union of India AIR 1970 SC 564, interpreted the concept of Property in the legal regime. The court, in this case, observed that the term property includes both corporeal things such as land, furniture and incorporeal things such as copyrights and patents. The recent trend of the Apex court, however, has changed. Court has started viewing Property in the light of Article 21 of the Indian constitution as liberties exist even reference to the Property owned and possessed.

Kinds of properties

Property is basically of two categories : Corporeal Property and Incorporeal Property. Corporeal Property is visible and tangible, whereas incorporeal Property is not. Moreover, corporeal Property is the right of ownership in material things, whereas incorporeal Property is an incorporeal right in rem. Corporeal Property is further categorized into Movable and Immovable Property. Incorporeal Property is classified into two categories : in re propria and rights in re aliena or encumbrances.

Corporeal and Incorporeal Property 

These are the two categories of properties that exist.

(i) Corporeal Property has a tangible existence in the world and is related to material things such as land, house, ornaments, silver, etc.

(ii) Incorporeal Property is intangible because it’s existence is neither visible nor tangible. Right of easement and copyrights are incorporeal Property.

Movable and Immovable Property 

All corporeal Property may either be movable or immovable in nature. The basis of this kind of classification is the portability of the object. The two categories are discussed as follows:

(i) Section 3 of the general clauses act, 1897; Section 2(6) of the Indian Registration Act, 1908 defines the term immovable Property. It includes land, things attached and embedded in the land.

(ii) On the other, movable Property includes any corporeal property which is not immovable property. It may include furniture, stationery items, etc. The concept of immovable Property holds greater importance and has elaborately been dealt with under Indian statutes. The following mentioned are judicially recognized as immovable Property:

1.  Right of way
2.  Right to collect the rent of immovable Property
3.  Right of ferry
4.  mortgagor’s right to redeem the mortgage
5.  The interest of the mortgagee in immovable Property
6.  Right of fishery
7.  Right to collect lac from trees

On the other hand, the following are not judicially recognized as immovable Property:

1. Standing timber
2.  Growing crops
3.  Grass
4.  Royalty
5.  A decree of sale or sale of immovable property on a mortgage
6.  Right of the purchaser to have land registered in the name
7. Right to recover maintenance allowance even though it is charged through immovable Property

The above-mentioned lists are not exhaustive and are subject to judicial interpretations from time to time.

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Public Property and Private Property 

With reference to the concept of ownership, Property may be classified into public and private property. The two kinds are discussed below: 

(i) Public Property is owned by the public as such in some governmental capacity. In other words, it is owned by the government and used for the beneficial use of the public in general. A park or a government hospital is a public property.

(ii) Private Property is that Property which is owned by a particular individual or some other private person. A residential house of a citizen may be his private property. 

Real and Personal Property

This distinction between real and personal Property basically originated from Roman law, and it still exists in England. The two categories of Property are discussed below:

(i) Real Property means all rights over land recognized by law.

(ii) Personal Property means all other proprietary rights, whether they are right in rem or in personam.

Right in re aliena and Right in re propria 

Right in re aliena are also sometimes referred to as encumbrances. These are the rights of a specific user. These prevent the owner from exercising some definite right in reference to his Property. Lease, security and trust may be included under this category. Right in re propria are immaterial forms of Property. These are a product of human skill and labour. Patents, copyrights and commercial goodwill may be included under this category. 

Intellectual Property

Meaning 

Intellectual Property is, in simpler terms, creation of intellect or wisdom or of the human mind. It is related to intellectual innovation and innovation in the literary, scientific and artistic fields. Nations around the world are making efforts toward protecting intellectual property. One major reason is to recognize by way of statute, the economic rights of creators of these intellectual properties. Another reason is the urge to promote creativity amongst the masses which will, in the long run, contribute towards an environment comprising of only fair trade practices. The law related to intellectual Property aims at protecting the people who create and own the intellectual goods and services by granting them certain time-limited rights to control the use made of those productions. Those rights do not apply to the physical object in which the creation may be embodied but instead to the intellectual creation as such. 

Kinds of Intellectual Property 

Intellectual Property may be classified into various categories.

However, a few of the most widely utilized and owned intellectual properties have been discussed below:

Patent

A patent is a kind of Property that has intellectual worth attached to it. It is an exclusive right granted for an invention which is a product which is a result of a person’s ability to of doing something or offers a new technological solution to a problem. In order to obtain a patent, it is necessary that the technological information must be disclosed to the public in a patent application. A patent so obtained remains in force for twenty years.

Trademark

Another widely popular form of intellectual Property is a trademark. Trademark is a sign capable of distinguishing goods and services of one enterprise from another. These are basically a means to protect the unique identity of renowned brands. It enables a customer to recognize the brand or the product instantly without being misled. An example of a trademark would be the logos or slogans used by brands to make their products uniquely identifiable.

Copyright

Copyright is available to the creators of literary, dramatic, musical, artistic, producer of cinematograph acts or sound recording. It determines whether and in what conditions the original work may be used by persons other than the owner of the unique intellectual property.

Almost every product has copyright. These include the visible symbols on the product packaging and label etc. Copyrights protect original creative work has been written down on a piece of paper, saved on electronic storage hard drive device or preserved in some other tangible format. 

Geographical Indicators (gi)

It is an indicator used on products having a specific geographical origin and possess qualities that exist due to their basic origin. The sign must identify a product as originating in a given place, and the quality, characteristics or reputation should be due to the place of origin. Recently, Rasgulla from Orissa and Kadaknath chicken from Madhya Pradesh has been granted the geographical indication tag in India.

Industrial Design

Industrial design is related to the products which are a part of the industrial set up. It refers to the shape, configuration, colour or pattern which may be an ornamental or aesthetic aspect of a product. The owners of a registered industrial design have a right to prevent third parties from making, selling, importing articles bearing a design which is a copy. Thereby any person using someone else’s industrial design may be liable to pay damages to the owner of the industrial design.

Trade Secret

Trade secret in simpler terms implies the strategy adopted by the owner of the business. It may be any confidential business information which provides an organization with a complete edge in the world market of the respective product it deals with. A trade secret is an initial step for an investor. It is essential that the idea or formula behind the unique trade opportunity remains secretive. Any person or organization indulging in unauthorized use of trade secrets is regarded to be guilty of unfair trade practice. For example, the recipe of any popular noodles brand may be considered as a trade secret of that brand.

Commercial Goodwill

Commercial goodwill is a prominent form of incorporeal right. The goodwill of a commercial business is a valuable right acquired by the owner by his labour and skill. The owner has the exclusive right of use and profit from the business and anyone who seeks to make use of it by falsely representing to the public that he is himself carrying on the business in question shall be violating this right.

An overview of Intellectual Property

Thus, it is now clear that the concept of intellectual property is one that covers within its ambit varied kinds of intangible property rights. Every product which is a part of the world market encompasses one or more of the kinds of intellectual property rights discussed above. The concept can be further understood by considering the illustration of a soft drink brand. The name of the brand would be its unique trademark. The formula of the soft drink would be considered as a trade secret, while copyright would comprise of the way the soft drink is packed. The shape of the bottle or tetra pack of the bottle may either be a design patent or a trademark.

Conclusion 

From the above discussion, it can be very well concluded that the concept of Property has been in existence since the existence of human civilisation. Over the years, the concept of Property has witnessed a vast transition. The reason behind this transition may be the jurisprudential aspect of the concept. Thus, from a piece of brick to an idea behind a product, Property as a concept has developed in an unanticipated manner. The research being done in the field of property law makes it a dynamic concept which will continue to evolve in the years to come in the near future. 

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 has been written by Siddharth Addy and Aniket Bhowmick, students of Amity Law School, Kolkata.

Abstract

Reservations have had a checkered political history in the areas subjected to public employment and admission to the higher educational institution. The concept of reservation is positive discrimination and revolves around providing justice to a historically disadvantaged group. Since Post Constitutional Development we have a settled principle that the reservation must be limited to 50%. Though 103^rd amendment in the Constitution is the latest step in overruling the laws propounded by the Hon’ble Supreme Court ruling, (1) Economic backwardness cannot be sole discretion for reservation[1] (2) The total reservation must not exceed 50 % criteria[2]. 

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The Constitution 103^rd Amendment 2019 empowered the states to provide 10% reservation in areas of government employment and admission into higher education institution for “Economically weaker section of the society” other than the backward communities in India; this would increase the total reservation by 59.50%[3]. All these years the 50% reservation ceiling was the foundation rule which stood on the way of the demand of greater reservation by various pressure groups. This was invalidated by the 103rd amendment.  

The solution which shall be propounded here to legally validate the constitutionality of the103rd amendment is the amendment is contradicting or abrogating “Doctrine of basic structure”[4] laid down by the Hon’ble Supreme Court.

Reservation: A misunderstood request

The adamant of reservation is closely linked to the caste system, the caste-based discrimination finds it’s erstwhile in the Varna system of the Hindus. To overcome this inequality the Hon’ble Supreme Court passed judgment in Indra Sawhney case with the ulterior motive to reconcile the conflict between the poor and raising their standard of living. The key feature which revolves around the Indian Political fore was the “50% ceiling” which was overlooked baldly in the 103^rd amendment of the constitution.

The Honorable Dr B. R. Ambedkar stated in the debate of the constituent assembly in 1948 as follow: 

“Supposing, for instance, reservations were made for a community or a collection of communities, the total of which came to something like 70 per cent of the total posts under the state and only 30 per cent are retained for the unreserved. Could anybody say that this is satisfactory from the point of view of giving effect to the first principle, namely, that there shall be equality of opportunity? It cannot be in my judgment. . . Therefore, the seats to be reserved must be confined to a minority of seats. . . If honourable Members understand this position that we have to safeguard two things namely, the principle of equality of opportunity and at the same time satisfy the demand of communities which have not had so far representation in the State, then, I am sure they will agree that unless you use some such qualifying phrase as “backwards” the exception made in favour of reservation will ultimately eat up the rule altogether. Nothing of the rule will remain”[5]

Clearly, India’s discourse on reservation hinges not on whether it should exist, but on who should benefit from it.[6] 

Introduction to the 103^rd Amendment Bill

The 124th Amendment Bill, 2019, was presented in the Lok Sabha on January 08, 2019, with an aim to provide reservation in both education and public employment to ‘economically weaker sections’ of the general public. The Bill was passed in the Lok Sabha with just three individuals casting a ballot against it out of the 326 individuals present and subsequently being passed by Rajya Sabha also with no proposals. On being endorsed by both the Houses of the Parliament, when the President of India gave his consent to the Bill, the 103rd Amendment Bill, 2019, came into power with impact from January 14, 2019, as informed in the official gazette by the Central Government.

This reservation is “in addition to the existing reservations and subject to a maximum of ten per cent of the total seats in each category”. The Statement of Objects and Reasons of the Bill states that “people from economically weaker sections of the society have largely remained excluded from attending the higher educational institutions and public employment on account of their financial incapacity to compete with the persons who are economically more privileged.” The bill expresses that it is drafted with a will to order Article 46 of the Constitution of India, a Directive Principle that desires the administration to secure the instructive and monetary interests of the weaker sections of the society. While socially impeded areas have appreciated the investment in the work in the administrations of the express, no such advantage was given to the economically backward sections.

The constitutional validity of the 103^rd Amendment

The policy of reservation is an issue that almost every Indian citizen born post-independence has criticized or utilized it at some stage in their life. Deciding the constitutionality of reservation under the constitution of India is deeply impacted by several sacrosanct facts which shall be deemed major.

The 103^rd Amendment introduced Article – 15(6)[7] and Article- 16(6)[8] thereby creating reservation for the economically backward class of the society, The problem with this is Its provision are contradicting with the Indra Sawhney judgment passed by the Hon’ble Supreme Court and thereby contradicting with the provisions of the Article 141[9] of the Indian Constitution, Moreover passing of the 103^rd amendment is widely criticized on the grounds that it won’t stand the test of “Doctrine of Basic Structure”[10] thereby said amendment shall be deemed Ultra Virus if not otherwise. The Basic Structure lay down that its main work is to treat the unequal as equals but it’s over-representation of caste/class-based system contradicts with the equality code of the constitution. 

In the said case of Janaki Prasad Parimoo v. State of Jammu and Kashmir:[11] “Mere poverty cannot be the test of backwardness because in this country except for a small percentage of the population, the people are generally poor – some being poorer, others less poor. . . In identifying backward classes, one has to guard oneself against including therein sections which are socially and educationally advanced because the whole object of reservation would otherwise be frustrated.”

The 103^rd amendments have created a paramount mess and have put groups to stand the test of constitutionality to determine Socio-political and educational backwardness at war by the inclusion of Article 15(6), 16(6). In the test of Constitutional validity for creating a reservation, necessary provisions must be amended in the Constitution for the adequate development of the backward class while matching the standards of the code of equality.   

Conclusion

Now, since the constitution stands changed or amended, the sole challenge for the 103^rd amendment is its conformity to the doctrine of basic structure as it has been an established fact that reservation shall have a cap of 50%. These stipulations first arose in M.R Balaji v. State of Mysore[12] when the court stated that reservation above 50% would imply dominance over section 16(1). The government notification providing 10% reservation to weaker economic sections of society was struck down in Indra Sawhney v. Union of India[13]. But these rulings were given with respect to law or subordinate legislation and have never been discarded in violation of Basic Structure Doctrine.  

The question hence arises that whether reservations, both caste-based and economic backwardness violates the concept of equality? Clearly, it poses a threat or damages the concept of equality since the general classes of people are the ones who are suffering. 30% of the country’s population belongs to the general category and with 59.50% seats reserved for education and public employment, the basic right of employment and education are being denied to many. Moreover, many of SC, ST, OBC students cannot cope up with the level of education or are unable to pay the fees and hence drop out their respective institutions. A recent study has found that as many as 37 per cents Scheduled Caste students and 49 per cent Scheduled Tribe students stop studying after initial years of schooling[14]. Many deserving students are unable to obtain a seat in a school, college or job due to lack of seats for general category. In India, the numerically huge however socially and instructively in backward positions/classes have utilized constituent governmental issues and their administrative clout to propel their interests in both education and employment. As referenced before, in the matter of Constitutional amendments identifying with reservations, the Supreme Court has by and large been passive, and the main area where it has taken a firm stand so far is with respect to the ’50 per cent ceiling rule’. 

The following solutions may be propounded/ considered:

1. The Supreme Court subdues the Constitution (103rd Amendment) Act, 2019. As ultra vires as the “basic structure” doctrine as it improves and concretes the portrayal of the already much-represented class/classes; and subsequently, damage the code of equality of the Constitution to the point of being unrecognizable.

2. The reservation quotas for all the four classes i.e. SC, ST, OBC and EWC can be reduced such that the total reservations do not exceed the 50% margin. 
3. There may be set up of a proper investigation committee who would check the financial potential of the individual and only give reservation to those who actually requires it.
4. The Supreme Court may as well form a larger bench to correct the infirmities of the 103^rd

The 103rd amendments have made a principal mess and have put gatherings to stand the trial of lawfulness to decide Socio-political and Economical backwardness at war by consideration of Article 15(6), 16(6). In the trial of Constitutional legitimacy for making reservation essential alterations shall be made in the Constitution for the sufficient improvement of the backward class while coordinating the models of the code of equality.

Endnotes

[1] Indra Sawhney V. Union Of India ( 1992)

[2] M.R. Balaji & Ors V. State Of Mysore (1963)

[3] The memorandums effectively contemplated reservation of 59.50% in central government posts 22.5% for SC/ST, 27 % for OBC and 10% for economically backward Sections

[4] Kesavananda Bharati V. State Of Kerala (1773)

[5] Constituent assembly debate(proceeding),vol.8,The constituent assembly debate(23rs September,2019)  https://www.constitutionofindia.net/constitution_assembly_debates/volume/8/1949-05-23

[6] Zia Mody, Ten Judgment  That Changed India

[7] In article 15 of the Constitution, after clause (5), the following clause shall be inserted, namely:— ‘(6) Nothing in this article or sub-clause (g) of clause (1) of article 19 or clause (2) of article 29 shall prevent the State from making,— (a) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5); and (b) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5) in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30, which in the case of reservation would be in addition to the existing reservations and subject to a maximum of  10%  of the total seats in each category

[8] In article 16 of the Constitution, after clause (5), the following clause shall be inserted, namely: — “(6) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any economically weaker sections of citizens other than the classes mentioned in clause (4), in addition to the existing reservation and subject to a maximum of ten per cent. of the posts in each category.”.

[9] 141. Law declared by Supreme Court to be binding on all courts The law declared by the Supreme Court shall be binding on all courts within the territory of India

[10] 1973 4 SCC 225

[11] 1973 AIR 930, 1973 SCR (3) 236

[12] M.R Balaji v. State of Mysore, 1963 AIR 649

[13]  Indra Sawhney v. Union of India, AIR 1993 SC 477

[14] SC/ST dropout rate High, The Hindustan Times,(22^nd September 2019) https://www.hindustantimes.com/india/sc-st-dropout-rates-high/story-wp4DgXyvn5l8e21JlJV4HK.html

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1.) State practice for the formation of the customary rule includes 1. State Action 2. State claims 

A.) only 1 

B.) only 2 

C.) both 1 and 2 

D.) neither 1 nor 2 

2.) The controller certifying authorities in India must maintain a database of the disclosure records. 1. Certifying authority 2. Cross certifying authority 3. Foreign Certifying authority 

A.) 1 and 2 

B.) 2 and 3 

C.) 3 and 1 

D.) 1,2 and 3 

3.) Under section 37 of the IT Act, the certifying authority can suspend the digital signature certificate if-: 1.the subscriber is found guilty of malpractice, 2-: the subscriber is involved in cyber-terrorism, 3-: the subscriber request for the same, 4-: in public interest 

A.) 1 and 2 

B.) 2 and 3 

C.) 3 and 4 

D.) 4 and 1 

4.) In the cases before cyber appellant tribunal, the appellant-

A.) Cannot appear in person without a legal practitioner 

B.) cannot authorize a legal practitioner to appear on his behalf 

C.) cannot authorize his officer to appear on his behalf 

D.) cannot authorize his relatives who is neither his officer nor a legal practitioner to appear on his behalf 

5.) In the light of the criminal amendment Act,2013, which of the following is not correct-

A.) the word rape in section 375 of indian penal code,1890 has been replaced with sexual assault. 

B.) rape is now gender neutral offence 

C.) the amendment has fixed the age for consensual sex as 16 years 

D.) all of the above 

6.) The offence of stalking upon second or subsequent conviction is-

A.) non cognizable and bailable 

B.) cognizable and bailable 

C.) cognizable and non bailable 

D.) non cognizable and non bailable 

7.) In kidnapping the consent of minor is-

A.) wholly immaterial 

B.) partly immaterial 

C.) wholly material 

D.) partly material 

8.) Under the provisions of the trade union Act,1926 any person who has attained the age of…. may be a member of a registered trade union subject to any rules of trade union to the contract-

A.) 14 years 

B.) 15 years 

C.) 18 years 

D.) 21 years 

9.) Spurious goods under the provisions of the consumer protection Act 1989 imply- 

A.) such goods and services which are of poor quality 

B.) such goods and services which are claimed to be genuine but they are actually not so 

C.) such goods and services which might be stolen in nature 

D.) such goods and services which are not usable in nature 

10.) Who is liable to pay compensation in cases of death or permanent disablement? 

A.) owner of the vehicle 

B.) state government 

C.) driver 

D.) insurance company 

11.) Indian Evidence Act applies to-

A.) proceeding before tribunals 

B.) proceeding before the arbitrator 

C.) judicial proceeding in court 

D.) all of the above 

12.) Fact in issue means-

A.) fact existence or non existence of which is admitted by the party 

B.) fact, existence or non existence of which is disputed by the parties 

C.) fact, existence or non existence of which is not disputed by the parties 

D.) all of the above 

13.) In a bailable offence bail is granted as a matter of right-

A.) by the police officer 

B.) by the court 

C.) both by the police officer and the court 

D.) either 1 or 2 

14.) The conciliation proceedings______ 

A.) can be used as evidence in any judicial proceeding 

B.) can be used as evidence only in arbitral prpceeding 

C.) cam be used as evidence only on the discretion of the judge or the arbitrator 

D.) cannot be used as evidence in any judicial or arbitral proceedings 

15.) The serious fraud investigation office 

A.) takes up cases suo motto 

B.) takes up cases for investigation on the basis of application made by the people concerned 

C.) takes up cases for investigation referred to it by central government 

D.) all of the above 

16.) Directive principles are ________

A.) justifiable as fundamental right 

B.) justifiable but not as fundamental right 

C.) decorative portions of indian constitution 

D.) not justifiable, yet fundamental in the governance of the country 

17.) Who has the power to dissolve the lok sabha ?

A.) president 

B.) prime minister 

C.) speaker of lok sa 

D.) council of ministers 

18.) An amendment of the contitution can be initiated by introduction of bill for such purpose in 

A.) council in states 

B.) house of people 

C.) either in council of states or house of people 

D.) none of the above 

19.) The india independence Act,1947 came into force –

A.) 1947-07-18 

B.) 1947-08-14 

C.) 1947-06-03 

D.) 1947-07-26 

20.) Sovereignty under constitution belongs to- 

A.) the president 

B.) the parliament 

C.) the people 

D.) the executive, judiciary and legislative 

21.) Expression socialist in the preamble has been added by taking the view of 

A.) Marx and Laski 

B.) Marx and Gandhi 

C.) Rousseau and Gandhi 

D.) Gandhi and Hegel 

22.) Quit India movement was declared by the Indian National congress after the failure of the-

A.) Cripps mission 

B.) August offer 

C.) Wavell plan 

D.) none of the above 

23.) The first session of the constituent Assembly was held on 

A.) 1946-12-09 

B.) 1949-11-26 

C.) 1947-08-15 

D.) 1946-01-26 

24.) The indian constitution has borrowed the ideas of preamble from 

A.) Italian constitution 

B.) Canadian constitution 

C.) French constitution 

D.) Constitution of USA 

25.) The president of the constituent Assembly was 

A.) Jawaharlal Nehru 

B.) Jai prakash narayan 

C.) C. Rajgopalachari 

D.) Dr. Rajendra prasad 

26.) Which of the following Articles of constitution of india provides freedom as to payment of taxes for promotion of any particular religion 

A.) Article 25 

B.) Article 27 

C.) Article 28 

D.) none of the above 

27.) The service of a priest can be regulated under 

A.) Article 24 

B.) Article 23 

C.) Article 25(2) 

D.) none of the above 

28.) The directive principles are aimed at 

A.) securing political freedom 

B.) securing social and economic freedom by appropriate action 

C.) executive supremacy 

D.) judiciary supremacy 

29.) Fundamental duties are enshrined in 

A.) part IV, Article 51 

B.) part IV , Article 51A 

C.) part IV A , Article 51 

D.) part IV A , Article 51 A 

30.) The power of declaring any community as schedule caste or schedule tribes is with 

A.) Parliament 

B.) Home minister 

C.) President of India 

D.) Chairman of SC/ST Commision 

31.) The power of president of India to issue ordinance is a 

A.) executive power 

B.) legislative power 

C.) constituent power 

D.) quasi judicial power 

32.) The council of ministers are selected by 

A.) speaker of lok sabha 

B.) prime minister 

C.) President 

D.) vice president 

33.) Representtation of House of People is based on 

A.) Area of the state 

B.) population 

C.) community 

D.) literacy rate 

34.) Money bill can be 

A.) invalid by Rajya sabha 

B.) invalid by both the houses 

C.) Rajya sabha can reject the money bill 

D.) none of the above 

35.) The supreme court struck down a part of the preventive detention Act in the case 

A.) Gopalan case 

B.) Golaknath case 

C.) Ramesh Thappar case 

D.) Kochunni case 

36.) A retired judge of high court cannot 

A.) practice in the supreme court 

B.) practice in any other High court in India 

C.) practice in the High court from where he has retired 

D.) none of the above 

37.) Indian constitution reserves the residuary power to 

A.) union 

B.) states 

C.) parliament 

D.) president 

38.) The proclamation of emergency at the first instance can be restricted to 

A.) 3 months 

B.) 15 days 

C.) 6 months 

D.) 60 days 

39.) Which of the following are included in the concept of “state” under Article 12 

A.) Railway board and electricity board 

B.) judiciary 

C.) university 

D.) all of the above 

40.) The word procedure established by law in Article 21 is 

A.) that due process of law must be followed 

B.) A procedure laid down or enacted by a competent authority 

C.) the same thing as a due process of law 

D.) a law which is reasonable, just and fair 

41.) Objection as to non-joinder or mis-joinder of parties under order 1, rule 13 of CPC 

A.) can be taken at any stage of the proceedings 

B.) should be taken at the earliest possible opportunity or shall be invalid 

C.) can be taken in appeal or revision for the first time 

D.) either 1or 3 

42.) objection as to the place of suing 

A.) can only be taken before the court of first instance at the earliest possible opportunity 

B.) can also be taken before the appellate court for the first time 

C.) can also be taken before the court of revision for the first time 

D.) all of the above 

43.) On the retirement, removal or death of a next friend, under Order XXXII, rule 10 of CPC, the suit is liable to be 

A.) stayed 

B.) dismissed 

C.) rejected 

D.) either 1, 2 or 3 

44.) In India which of the following authorities has the power to block websites? 

A.) CERT-in 

B.) MCIIPC 

C.) C-DAY 

D.) Ministry of IT 

45.) The right to private defence is 

A.) available under all circumstances 

B.) available when there is time to have recourse to the protection of public authorities 

C.) available when there is no time to have recourse of public authorities 

D.) all of the above 

46.) which of the following can be considered retrenchment under the provision of the Industrial Disputes Act,1947? 

A.) termination due to ill health 

B.) abondonment of job byan employee 

C.) termination on account of reaching the age of superannuation 

D.) none of these 

47.) Which of the following statement holds true regarding imprisonment under the provision of section 14(3) of the child labour (prohibition and regulation) Act,1986. 

A.) it may extend to one year 

B.) it may extend to two years. 

C.) it may extend to six months 

D.) it may extend to one month 

48.) Onus to prove reasonable excuse for withdrawl from the society of the other is on 

A.) petitioner 

B.) respondent 

C.) both 1 and 2 

D.) either 1 or 2 

49.) A proclaimed person whose property has been attached can claim the property or the sale proceeds on appearance 

A.) within 6 months of attachment 

B.) within 2 years of attachment 

C.) within 3 years of attachment 

D.) within 1 year of attachment 

50.) The question whether a statement was recorded in the course of investigation is a 

A.) question of law 

B.) question of fact 

C.) mixed question of law and fact 

D.) question of law or of fact depends on facts and circumstances 

51.) Where the police submit a final report under the section 173(2) of the Cr.P.C for dropping of proceeding to a magistrate,the magistrate? 

A.) may accept the same 

B.) may reject the same 

C.) may reject the same and order further investigation 

D.) any of the above 

52.) The order under section 125 of cr.pc are 

A.) summary in nature but finally determine the rights and the obligation of the party 

B.) summary in nature and do not finally determine the rights and obligations of the parties which are to be finally determine by the civil court. 

C.) substantive in nature and finally determine the rights and obligations of the party. 

D.) substantive in nature and are not subject to determination of a right of a party by civil court. 

53.) A contingent contract based on the specified uncertain events not happening within a fixed time under section 35 

A.) remains valid even if the event does not happen within that fixed time 

B.) becomes void at the expiration of the time fixed 

C.) becomes void if the happening of that event becomes impossible before the expiry of time fixed 

D.) both 1 and 3 

54.) which among the following is authorised under the Information Technology Act, 2000 to prescribe the security procedures and practices for the purpose of sections 14 and 15 of the Act. 

A.) central government 

B.) state government 

C.) certifying authority 

D.) issuing authority 

55.) The essential ingredient of the tort of negligence are-(1) when one owes a duty of care towards the other. (2) when one commits a breach of that duty and. (3) the other persons suffers damages as a consequence thereof. choose correct response for below. 

A.) none of them are essential ingredient 

B.) only the first is an essential ingredient 

C.) all of them are essential ingredient 

D.) even if the first is absent the tort of negligence is committed. 

56.) vicarious liability includes 

A.) liability of the principle for the tort of his agent 

B.) liability of the master for the tort of his servant 

C.) liability of the partners for each others tort 

D.) all of the above 

57.) Necessity rule as to admissibility of evidence is applicable when the maker of a statement 

A.) is dead or has become incapable of giving evidence 

B.) is a person who can be found but his attendance cannot be procured without unreasonable delay or expenses 

C.) is a person who cannot be found 

D.) all of the above 

58.) secondary evidence of a document means 

A.) copies of the document 

B.) oral account of the contents of the documents 

C.) both 1 and 2 

D.) none of these 

59.) A will required to be proved by calling at least one attesting witness 

A.) when it is registered 

B.) when it is unregistered 

C.) when it is admitted 

D.) all of the above 

60.) Any person in section 106 of Evidence Act refers to 

A.) a party to the suit 

B.) a stranger to the suit 

C.) a person who is not a party to the suit but interested in the outcome of the suit 

D.) all of the above 

61.) In a cognizable case under IPC, police have the 

A.) authority to arrest a person without warrant 

B.) authority to investigate the offence without the permission of the magistrate 

C.) both 1 and 2 

D.) either 1 or 2 

62.) During the investigation a search can be conducted without a warrant by 

A.) any police officer 

B.) by the investigating officer 

C.) both 1 and 2 

D.) either 1 or 2 

63.) Committal proceedings under section 209 of Cr PC are in the nature of 

A.) aid in the investigation 

B.) inquiry 

C.) trial 

D.) either inquiry or trial 

64.) which is correct 

A.) proposal+acceptance=promise 

B.) promise+consideration=agreement 

C.) agreement+enforceability=contract 

D.) all of the above 

65.) communication of acceptance is complete as against the proposer 

A.) when it comes to the knowledge of the proposer 

B.) when it is put in course of transmission to him so as to be out of the power of the acceptor 

C.) when acceptance is communicated to the proposer 

D.) all of the above 

66.) in case of a general offer, for a valid contract 

A.) the acceptor need not have the knowledge of the offer 

B.) the acceptor need not have the knowledge of the offer before acceptance by performance 

C.) the acceptor may require the knowledge of the offer after the performance of the condition for acceptance 

D.) knowledge does not matter so long as the condition is performed with or without knowledge 

67.) under the provision of the transfer of property Act, 1882 the unborn person aquires vested interest on transfer for his benefit 

A.) upon his birth 

B.) 7 days after his birth 

C.) 12 days after his birth 

D.) no such provision is made 

68.) Every transfer of immovable property made with intent to defeat or delay the creditors of the transferor shall be voidable 

A.) at the option of the creditor so defeated or delayed 

B.) at the option of the debtor 

C.) at the option of court 

D.) none of the above 

69.) where co-judgment debtors are in the position of joint promisors, each is 

A.) not jointly are severally liable to the decree-holder 

B.) jointly and severally liable to the decree-holder 

C.) jointly liable to the decree-holder only 

D.) severally liable to the decree-holder only 

70.) At sight under section 21 of the Negotiable Instruments Act.1881 means 

A.) on presentation 

B.) on demand 

C.) on coming into vision 

D.) none of the above 

71.) Section 5 of the Limitation Act applies to-: 

A.) suits 

B.) execution 

C.) election petitions 

D.) none of the above 

72.) which of the following companies will have to constitute the corporate social responsibility committee under the Companies Act,2013 

A.) A company having a net profit of 2.5 crores in a financial year, a net worth of 300 crores and a turnover of rupees 800 crores. 

B.) A company having a net profit of 3 crores in a financial year, a net worth of 300 crores and a turnover of rupees 600 crores. 

C.) A company having a net profit of 5 crores in a financial year, a net worth of 500 crores and a turnover of rupees 1000 crore and more. 

D.) A company having a net profit of 5 crores in a financial year, a net worth of 500 crores and a turnover of rupees 5000 crores or more 

73.) A disqualified person/heir 

A.) Transmit an interest to his or her own heir 

B.) transmits no interest to his or her own heir 

C.) may or may not transmit an interest to his or her own heir as per the discretion of the court. 

D.) may only transmit an interest to his or her own heir with the consent of the other heir 

74.) in cases in which a specific act confers a discretionary power on an authority. 

A.) The court can direct the manner in which the power is exercised 

B.) the court can direct that the power be exercised in accordance with law 

C.) both 1 and 2 

D.) neither 1 or 2 

75.) The bar council of India rule which stipulated that persons aged 45 years and above could not be enrolled as advocates were struck down by the supreme court in 

A.) in E.S. Reddi V. Bar Council of India 

B.) Indian council of legal aid and advise V. Bar Council of India. 

C.) P. Shanmugam v. Bar Council of India 

D.) Legal committee V. Bar Council of India 

76.) Which is an incorrect statement 

A.) an arbitral award is a contract 

B.) an arbitral award must be in writing and signed 

C.) an arbitral award included an interim award 

D.) none of the above 

77.) Which of the following statement holds true for adjudication bodies 

A.) Doctrine of stare decisis applies to them 

B.) doctrine of res judicata does not apply to them 

C.) inherent lack of jurisdiction in a tribunal cannot be cured or created by the act of the parties 

D.) none of the above 

78.) The supreme court held in v.c Rangadurai V. D.Gopalan an advocate who has been disbarred or suspended from practice must prove after expiration of a reasonable length of time that 

A.) he appreciates the insignificance of his dereliction 

B.) he has lived a consistent life of poverty and intergrity 

C.) he possesses the good character necessary to guarantee uprightness and honour in his professional dealings 

D.) the burden is on the applicant to establish that he entitled to resume the privilege of practicing law without restrictions. 

79.) The present Arbitration and conciliation Act of 1996 is based on 

A.) constitution of india 

B.) supreme court of india guidelines 

C.) European commercial Arbitration procedure 

D.) UNCITRAL 

80.) Who among the following is authorised to issued regulation regarding shelf prospectus 

A.) SEBI 

B.) Central government 

C.) company law board 

D.) National company law tribunal 

81.) Which of the following is not included in the definition of cattle as given under the Indian Forest Act,1927 

A.) Rams 

B.) kids 

C.) kitten 

D.) none of these 

82.) The provision of the arbitration and conciliation Act of 1996 have to be interpreted being influenced by the principle underlying the 1940 Act. this observation was laid down in 

A.) M.M.T.C ltd. v. Sterlite industries (India) ltd. 

B.) Sunderam finance ltd. v. N.E.P.C ltd 

C.) olympus superstructure pvt. ltd. v. meera vijya 

D.) orma impex pvt. Ltd. v. nissan pvt. ltd. 

83.) which of the following services cannot be provided to the company by an author appointed under the provisions of the companies Act,2013 

A.) internal audit 

B.) actuarial services 

C.) managerial services 

D.) all of the above 

84.) Under the wild life (protection) Act,1972 any person who teases an animal in a zoo maybe punished 

A.) with fine which may extends to 5000 

B.) with imprisonment which may extend upto 1 year 

C.) both 1 and 2 

D.) neither 1 or 2 

85.) The entry on forests and protection of wild animals and bird was moved from …to the… by the 42nd amendment to the constitution of the India 

A.) centre list to state list 

B.) centre list to the concurrent list 

C.) state list to the concurrent list 

D.) state list to union list 

86.) Droit des gens (laws of nations)1758 was written by 

A.) Comelius van bynkershoek 

B.) Emerich de vattel 

C.) Richard zouch 

D.) Jean bodin 

87.) To establish section 34 

A.) common interest must be proved but not overt act is required to be proved 

B.) common intention and overt act both are required to be proved 

C.) common intention needs not be proved but only overt act is required to be proved 

D.) all of the above 

88.) Under the provision of the industrial disputes Act,1947 the appropriate government can by order in writing 

A.) refer the dispute to a board for promoting a settlement of the dispute 

B.) refer any matter appearing to be relevant to the dispute to the dispute to the dispute to a court for inquiry 

C.) both 1 and 2 

D.) neither 1 or 2 

89.) which of the following statements is true for loss of confidence by management in the workman ? 

A.) even when dismissal or discharge is held to be wrongful, the court may not order reinstatement if the employer is able to establish that the workman held a position of trust and there was a loss of confidence. 

B.) loss of confidence may also be a ground for discharge simpliciter of the work man 

C.) both 1 and 2 

D.) neither 1 or 2 

90.) Under the provision of the Consumer Protection Act, 1986, the period of limitation for filing a complaint before the national commision is 

A.) 1 year from the date on which causes of action has arisen 

B.) 2 year from the date on which causes of action has arisen 

C.) 3 year from the date on which causes of action has arisen 

D.) 4 year from the date on which causes of action has arisen 

91.) Grievous hurt under the motor vehicle Act,1988 means 

A.) Grievous hurt as defined in ipc 

B.) Grievous hurt as defined in medical laws 

C.) Grievous hurt as detected by medical practitioner 

D.) none of the above 

92.) A retracted confession 

A.) can be solely made the basis of conviction 

B.) cannot be solely made the basis of conviction 

C.) cannot be solely made the basis of conviction unless the same is corroborated 

D.) both a and c are correct 

93.) A confession to be inadmissible under section 25 of the act 

A.) must relate to the same crime for which the offender is charged 

B.) may relate to the same crime for which the offender is charged 

C.) must relate to another crime 

D.) none of the above 

94.) An unjustified and unexplained long delay on the part of the investigation officer in recording the statement of a material witness would render the evidence of such witness 

A.) unreliable 

B.) inadmissible 

C.) inadmissible and unreliable 

D.) none of the above 

95.) Recording of pre summoning evidence may be dispensed with under section 200 of Cr.p c 

A.) if the complaint is supported by the affidavit of the complainant 

B.) if the complaint is made in writing by a public servant in the discharge of his official duties 

C.) both 1 and 2 

D.) only 1 is correct 

96.) contract without consideration made in writing and registered and made on account of natural love and affection is 

A.) void 

B.) reasonable 

C.) valid 

D.) unenforceable 

97.) Under the transfer of property Act,1882 

A.) the salary of a public officer can be transferred 

B.) the salary of a public officer cannot be transferred 

C.) public officer can be transferred 

D.) none of the above 

98.) where a debt is transferred for the purpose of securing an existing or future debt, the debt so transferred, if received by the transferor or recovered by the transferee is applicable first,in payment of the cost of such recovery . this is the provision of 

A.) mortgaged debt 

B.) gift 

C.) actionable claim 

D.) lease 

99.) A suit is under section 6 of the specific relief Act can be brought by 

A.) trespasser 

B.) a tenant holding over 

C.) servant 

D.) manager 

100.) Injunction cannot be granted in a suit 

A.) in which the specific performance cannot enforced 

B.) for breach of negative contract to enforce specific contract 

C.) for declaration where the plaintiff is in possession 

D.) neither 1, nor 2, nor 3 

Answers 

1.) C 2.) D 3.) C 4.) D 5.) D 6.) C 7.) A 8.) B 9.) B 10.) A 11.) C 12.) B 13.) C 14.) D 15.) C 16.) D 17.) A 18.) C 19.) A 20.) C 21.) B 22.) A 23.) A 24.) D 25.) D 26.) B 27.) C 28.) B 29.) D 30.) A 31.) B 32.) B 33.) B 34.) D 35.) A 36.) C 37.) C 38.) C 39.) D 40.) A 41.) B 42.) D 43.) A 44.) D 45.) C 46.) D 47.) D 48.) A 49.) B 50.) B 51.) D 52.) B 53.) D 54.) A 55.) D 56.) D 57.) D 58.) C 59.) A 60.) A 61.) C 62.) C 63.) B 64.) D 65.) B 66.) B 67.) A 68.) A 69.) B 70.) B 71.) A 72.) C 73.) C 74.) B 75.) C 76.) D 77.) C 78.) C 79.) D 80.) A 81.) C 82.) B 83.) A 84.) D 85.) C 86.) B 87.) B 88.) C 89.) C 90.) B 91.) A 92.) C 93.) D 94.) D 95.) C 96.) C 97.) B 98.) A 99.) B 100.) A 

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This article is written by Jitmanyu Satpati, a 3rd-year student from NLU Odhisa.

Introduction 

“The business of the court is to try the case and not the man, and a very bad man may have a very righteous cause.”

Character evidence is a very tricky issue in the law of evidence. On one hand, a court is supposed to apply the law impartially to the facts on record and arrive at a decision. On the other hand, evidence as to the general character and conduct of the accused is often important in explaining the conduct of the accused and also in deciding the outcome of a case when the case could go either way on the evidence alone.

Over the course of time, some general principles have evolved with respect to the admissibility and evidentiary value of character evidence. The most important of these principles is that character evidence is weak evidence and cannot stand up to positive evidence as to the commission of a crime. Beyond that, the question of admissibility of character evidence is still murky and is characterized by some broad general principles with many contextualized exceptions. Generally speaking, the good character of the accused is relevant and admissible as evidence and can be used to give the benefit of the doubt to the accused when, on the evidence alone, the case could go either way. However, evidence as to the bad character of the accused is generally not admissible as evidence except when it is in rebuttal to evidence of good character or when the character of the accused is itself a fact in issue. In rape cases, the situation is reversed and the question becomes about the victim/prosecutrix and the relevancy and admissibility of evidence of her bad or immoral character.

Relevancy of Good Character 

Section 53 of the Indian Evidence Act, 1872 (IEA) provides that the fact that the person accused is of a good character is relevant in a criminal trial. The principle behind this section is that the proving of the good character of the accused provides a presumption against the commission of a crime. The presumption arises from the improbability that, as a general matter arrived at through common experience and observations, a man who has uniformly followed an honest and upright course of conduct will suddenly turn to crime. It is of course entirely possible that such a person may have committed a crime in the throes of a sudden passion or temptation, but such things are exceptions. The value of a presumption of good character naturally varies depending on the circumstances of each case.[1] Moreover, character evidence is weak evidence and it cannot outweigh positive evidence in regard to the guilt of a person.[2]

In the case of Bhagwan Swaroop[3], the appellant was convicted for a criminal breach of trust under Section 409 of the Indian Penal Code, and for conspiracy under section 120-B of the IPC. The defence examined two eminent and respected men of India, Pandit Jawaharlal Nehru and Sri Sreeprakasha, in order to show the good character of the appellant. Subba Rao, J speaking for the bench, stated that the testimony of the eminent persons as regards to the character of the appellant established that, in their opinion, the appellant was a man of integrity, sincerity and simplicity. He further stated that under Section 53 and the Explanation to Section 55 of the IEA, general evidence of good character and disposition was relevant in a criminal trial and that evidence could be given of both good character as well as general disposition. He further held that was a difference between reputation and disposition; disposition means the inherent qualities of a person whereas reputation means the general opinion prevailing about the person among the public.

In other words, a man may be reputed to have a good character but he may, in fact, have a bad disposition. The value of a witness’s evidence as to the disposition of the accused will depend on the witness’s perspicacity as well as the opportunities the witness had to observe the accused. This has to be balanced against the cleverness of the accused to hide his real traits as well as the opportunity the witness had to observe specific traits of the accused.

However, Subba Rao, J stressed that character evidence, on the whole, was very weak evidence. It could be used to tilt the case in favour of the accused in doubtful cases or to explain the reaction of the accused in certain situations. However it had to give way to positive evidence and once positive evidence with regards to the guilt of the accused had been tendered, character evidence could not be used to turn the scale in favour of the accused.

Irrelevancy of Bad Character 

General Rule

Section 54 of the IEA provides that the fact that the accused has a bad character is irrelevant unless evidence has been given that he has a good character, in which case it becomes relevant. Evidence of bad character cannot be admitted under this Section for raising a general inference or presumption that the accused is predisposed or likely to have committed the crime that he is charged with. Any evidence of this kind is irrelevant and cannot be raised by either party i.e. the prosecution or the defence.[4] The Supreme Court has observed that accused is entitled to a presumption of innocence and evidence about his bad character is not relevant unless he adduces some evidence of his good character, in which case contrary evidence of his bad character may be advanced by way of rebuttal.[5] In the same case, the Court excluded evidence which described the accused as a law-breaker, holding that such evidence amounted to evidence about the bad character of the accused.[6]

The guilt of the accused has to be established by proving the facts alleged by the prosecution and not by casting aspersions on his character, such evidence only creates prejudice and does not lead to any determination or substantiation of the guilt of the accused.[7] Moreover, evidence of bad character cannot be used to defeat a legitimate defence available to the accused. In the case of State of Orissa v. Nirupama Panda[8], the accused had caused the death of a person who had tried to rape her. The prosecution attempted to introduce evidence of her bad character in order to strike down the plea of self-defence taken by the accused. The Orissa High Court held that the accused had every right to save her honor and that such a right extended to causing death in self-defence, and that evidence of the prior bad character of the accused was wholly immaterial and of no consequence.

Halsbury has observed:

It is not, in general, permissible in a criminal case for the prosecution to adduce evidence that the accused either bears a bad general reputation in the community or has a natural disposition to commit crimes of the class charged. The accused, nevertheless, is permitted to adduce or give evidence of his good reputation; and if he thus puts his character into the issue, the prosecution may attack it.[9]

In a criminal trial to prove that the accused committed the crime with which he is charged, the prosecution cannot adduce evidence that the accused: (a) was regarded as having a bad reputation in the community; or (b) had a disposition to commit crimes of the class or kind of which he was charged; or (c) had committed acts of a similar kind or description as those with which he was charged in the past and thus could be said to bear a disposition towards the same or show a propensity towards the same.[10]

When the bad character of the accused is not in issue, even references as to the bad character of the accused are not allowed. In the cases of Nimoo Pal Majumdar v. State[11] and Babulal v. State[12], the accused had been constantly referred to as goondas or thugs by the prosecution. In the latter case, the Court had pointedly drawn the attention of the jury at one place to the fact that the accused was a goonda. The Calcutta High Court reiterated the principle that in a criminal proceeding the fact that the accused has a bad character is immaterial and irrelevant unless evidence has been given that he has a good character, and even then only to rebut such evidence of good character. The Court observed that constant references to the accused as thugs was bound to create prejudice against them and that it was against all rules of fairness and evidence to allow evidence which had no probative value and high prejudicial value.

One of the most important cases with regards to character evidence was the case of Makin v. Attorney General of New South Wales[13]. In this case, a couple had been tried and held guilty of the murder of an infant child whose body had been recovered from their garden where it had been buried. There was no evidence that either the husband or the wife had killed the child other than the fact that the body had been buried in their garden. The prosecution had tendered evidence before the trial court that bodies of other children had also been found and that certain other people had entrusted their children to the couple and the children had never been heard of again. The Privy Council held that:

It is undoubtedly not competent for the prosecution to adduce evidence tending to show that the accused has been guilty of criminal acts other than those covered by the indictment for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct to have committed the offence for which he is being tried. On the other hand, the mere fact that the evidence adduced tends to show the commission of other crimes does not render it inadmissible, if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused.

The principle laid down in Makin[14] was approved by the Supreme Court in the case of Sardul Singh v. State of Bombay[15] where the Court observed “It is well settled that the evidence in rebuttal of a very likely and probable defence on the question of intention can be let in by the prosecution as part of its case. To anticipate a likely defence in such a case, and to give rebuttal of such defence, is in substance nothing more than the letting in of the evidence by the prosecution of the requisite criminal intent beyond a reasonable doubt.”

It is important to note that Section 54 does not override other sections of the IEA with regards to the admissibility and relevancy of evidence. Thus evidence which could or which tends to show the bad character of the accused can still be admissible if it is otherwise relevant under the IEA. In the case of Mangal Singh v State of Madhya Pradesh[16], an objection was taken that evidence of bad character had been allowed to the prejudice of the accused. The Supreme Court held that the evidence was admissible because although it disclosed certain unpleasant things about the accused in the past, the lower courts had examined it as proof of motive of the crime and not as an imputation against the character of the accused and the probative value of the same overweighed the prejudicial value against the accused. In other words, if the evidence is otherwise relevant, it is not rendered irrelevant merely because it shows bad character of the accused or the commission of an offence which is separate and distinct from the offence with which the accused is charged and for which he is undergoing a trial.

Character as a Fact in Issue 

The explanation I to Section 54 provides that evidence of bad character is admissible where the bad character of the accused is itself a fact in issue. However, such evidence of the bad character of the accused must be confined to the particular traits or aspects of the accused’s character which are in issue. Thus, for instance, it is useless to advance evidence of an accused’s honesty on a charge of cruelty, or of his agreeable disposition on a charge of theft. The accused’s reputation for honesty would be relevant on a charge of theft and a merciful disposition on a charge of cruelty.[17]

There are very few cases where the character of the accused is directly in issue. Some of the offences where the character of the accused can become a fact in issue are binding over proceedings for keeping good behaviour under Sections 109 & 110 of the Code of Criminal Procedure, 1973 (CrPC) and in proceedings for the offence of dacoity under Section 400 & 401 of the IPC. In case of binding over proceedings under Sections 109 & 110 of the CrPC, it is necessary to prove that the accused is a habitual offender under Section 116 of the CrPC has to be proved. The general character of the accused under Section 110 becomes a fact in issue during such proceedings and can be allowed.[18]  

In a charge for dacoity under Section 400 IPC, it must be established that the accused belonged in a gang which was associated for the purpose of habitually conducting dacoity. Hence ‘habit’ is a fact in issue to be proved for establishing the ingredients of the offence. Some courts have held that since habit is equivalent to character, it could reasonably be said that the character of the accused was itself a fact in issue for proving a charge under Section 400 IPC. Thus Explanations 1 and 2 to Section 54 are attracted in cases of dacoity and previous convictions, not only in respect of dacoities but also in respect of other offences such as theft, burglary etc. may be admissible.[19]

However, there is no judicial unanimity on this point. The Gujarat High Court refused to accept the contention that the character of the accused is a fact in issue in proceedings under Section 400 & 401 IPC.[20] The Court reasoned that for proceedings under Sections 400 & 401 IPC general bad character of the accused was not a fact in issue and it was only a particular trait or facet of the character viz. association for the purpose of committing crimes like robbery or theft which was a fact in issue. Therefore evidence could be adduced only about the particular trait of bad character that was relevant and not about the general bad character of the accused as a whole since the general bad character of the accused was not a fact in issue. Similarly, in the case of Bonai v Emperor[21] Evidence of a prior conviction was admitted in proceedings under Section 401 IPC as evidence of habit and not as evidence of the general bad character of the accused, which was held not to be a fact in issue.

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The Patna High Court has further held that character is not a fact in issue in cases of defamation under Section 499 & 500 of the IPC. The Court held that reputation did not need to be proved in a proceeding under Section 500 IPC and therefore the accused was not entitled to question the complainant with a view to eliciting evidence to show that the reputation of the complainant was already of such a type that the words of the accused could not have possibly lowered it further.[22] 

Previous Convictions

Explanation 2 to Section 54 provides that a previous conviction is relevant as evidence of bad character. However, this does not mean that evidence of a previous conviction can be admitted against the accused in all circumstances. Evidence of a previous conviction can be admitted against an accused only in some specified circumstances such as:

(a) When the accused is liable to enhanced punishment under Section 75 of the IPC on account of the previous conviction, or unless evidence of good character has been adduced in favour of the accused, in which case evidence of a previous conviction is admissible in rebuttal as evidence of bad character.[23]

(b) Evidence of a previous conviction may also be relevant under Section 8 of IEA as showing motive or under Explanation 2 to Section 14 of the IEA where the existence of any state of mind, or body, or of bodily feeling, is in issue or is relevant.[24]

Evidence of Bad Character in Rape Cases 

Evidence of the bad character of the prosecutrix is one of the most contentious issues in cases of rape or sexual assault. Section 155(4) of the IEA provides that when a man is prosecuted for rape or an attempt to ravish, he may impeach the credibility of the prosecutrix by showing that she was of generally immoral character. Moreover, Section 164(3) allows the counsel for the accused to shake the credit of a witness by injuring his character. However, the accused’s own bad character cannot be called into question by virtue of Section 54 of the IEA while he can adduce evidence of his good character under Section 53 of the IEA. This puts the accused in a very favorable position vis a vis the prosecutrix.

The sexual history of the victim is invariably dug out or insinuated in cases of rape. While a previous relationship of the victim with the accused could be relevant in determining the question of consent, the same cannot be said about any relationships that the victim/prosecutrix may have had with other men. It is wrong and misogynistic to believe that simply because a woman has had multiple partners or has been in multiple relationships, she is of easy virtue and thus her consent can be assumed.

The victim/prosecutrix’s past sexual history is also often used to cast doubts on their testimony and cast aspersions on their honesty.[25] The statements made by the victim/prosecutrix are doubted and they are effectively shamed for having a relationship outside marriage. Such provisions also perpetuate gender-based double standards; a man’s prior sexual history or immoral character is assumed to have no effect on his veracity whereas a woman’s past sexual history calls her entire testimony into doubt.[26] Section 155(4) thus creates a false presumption that women of immoral character may have consented to the sexual act in a particular case. This provision may also be invoked in cases of statutory rape where the victim is below the age of consent.

The Government of India has taken steps towards fixing this problem in our rape laws through the Criminal Laws (Amendment) Act, 2018. The Government implemented the recommendations of the 172^nd Report of the Law Commission[27] by deleting Section 155(4) of the IEA and adding a new section 53-A which provided that in cases of sexual offences where the consent of the victim was in issue, evidence of the character of the victim as to her previous sexual experience would not be relevant on the issue of such consent or quality of consent. Moreover, Section 146(3) of the IEA was also amended and a proviso was added which made it impermissible to put questions to the prosecutrix as to her general moral character during cross-examination.

The changes in the IEA with regards to the admissibility of character evidence in rape cases as well as the cross-examination of rape victims have brought India’s rape laws in line with global standards. They have given protection to the victim/prosecutrix so that they do not have to face a gruelling and humiliating cross-examination at the hands of defence counsels. This has given the victim/prosecutrix a shield against harassment in the courtroom and helped remove some of the gendered stereotypes present in the IEA.

Conclusion

Character evidence in criminal trials can broadly be divided into two categories: evidence as to the good character of the accused and evidence as to the bad character of the accused. The jurisprudence related to the first category of character evidence is settled to a large extent. Evidence as to the good character of the accused is relevant and can be entered into evidence. At the same time, the only evidence as to the general character of the accused can be tendered and not the opinion of the witness as to the accused’s disposition. Moreover, character evidence is weak evidence and cannot stand up to positive evidence of the commission of a crime. However, in cases where the case could go either way on the basis of the evidence tendered, character evidence can be used to give the accused the benefit of the doubt.

The jurisprudence regarding evidence as to the bad character of the accused is slightly murkier. The general principle is that evidence as to the bad character of the accused is not admissible as evidence. This is subject to three exceptions however; such evidence is admissible when it is in rebuttal to evidence of good character tendered on behalf of the accused, or when the character of the accused is itself a fact in issue or when the evidence is that of a previous conviction which is relevant as evidence of the bad character of the accused. Moreover, the prosecution can introduce into evidence material which tends to show the bad character of the accused if such material is otherwise relevant under the Indian Evidence Act (as evidence of motive or of mental state) or if it is tendered in order to strike down a possible defence which the accused is likely to raise. The guiding principle in all such cases is a balancing act between the probative value of the evidence and its prejudicial effect against the accused.

Character evidence in rape cases is different from other types of criminal proceedings as the character evidence which is sought to be introduced is evidence about the bad or immoral character of the victim/prosecutrix and no evidence as to the bad character of the accused. Certain provisions in the Indian Evidence Act allowed the accused to raise the issue of the bad character and previous sexual history of the victim/prosecutrix in order to impeach the credibility of her testimony. This put the accused in a stronger position with respect to the prosecutrix as he could impeach her credibility by introducing evidence as to her bad character while he was protected from the same by virtue of Section 54 of the Indian Evidence Act. The Criminal Laws (Amendment) Act, 2018 removed these gendered provisions from the Indian Evidence Act and helped achieve parity between the accused and the victim/prosecutrix. 

References

[1]Arthur Best, Wigmore on Evidence, 123 (4^th edn., 2019).

[2]Bhagwan Swarup v. State of Maharashtra,AIR 1965 SC 682.

[3]Ibid.

[4]See Emperor v. Gangaram,(1920) Bom LR 1274.

[5]See Ramlakhan Singh v. State of UP, AIR 1977 SC 1936.

[6]Ibid.

[7]See Amrit Lal Hazra v. Emperor, AIR 1916 Cal 188.

[8]1989 Cri LJ 621 (Ori).

[9]Halsbury’s Laws of England Vol. 17, 38 (Lord Hailsham, 4^th edn., 1989). 

[10]Phipson on Evidence, 238 (Hodge M Malek, 19^th edn., 2019).

[11]AIR 1955 Cal 559.

[12]AIR 1959 Cal 693.

[13][1897] AC 57, 64 (1893, Privy Council).

[14]Ibid.

[15]AIR 1957 SC 747, 752.

[16]AIR 1957 SC 199.

[17]Supra 10, at 239.

[18]See In re: Perna Maila Rai, AIR 1938 Mad 591. 

[19]See Bhima Shaw v. State, AIR 1956 Ori 177.

[20]See Bai Chaturi v. State, AIR 1960 Guj 5.

[21]1911 Cri LJ 97 (Cal).

[22]See Devbrata Shastry v. Krishna Ballabh,AIR 1954 Pat 84.

[23]See Emperor v. Duming, (1903) 5 Bom LR 1034.

[24]See Emperor v. Allomiya, (1903) 5 Bom LR 805.

[25]See 84^th Law Commission of India Report, Rape and Allied Offences: Some Questions of Substantive Law, Procedure and Evidence, (1980) available at http://lawcommissionofindia.nic.in/reports/84rpt.pdf, last seen on 26/09/2019.    

[26]Ibid.

[27]See 172^nd Law Commission of India Report, Review of Rape Laws, (2000) available at http://lawcommissionofindia.nic.in/reports/172rpt.pdf, last seen on 26/09/2019.

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This article is written by Shubhangi Sharma, a 5th-year student of BA LLB in Lloyd Law College, Greater Noida. The article discusses Passing Off in Trademark Act, 1999.

Meaning of Passing-Off

“If a person sells his goods as the goods of another” then the trademark owner can take action as this becomes a case of passing off. Passing off is used to protect or safeguard the goodwill attached to an unregistered trademark. When the trademark has been registered by the owner and infringement happens, then it becomes a suit for infringement, but if the trademark has not been registered by the owner and infringement happens then it becomes a case of passing off.

The principle of passing off, i.e. “Nobody has the right to represent his goods as the goods of somebody else” was decided in the case of Perry v Truefitt (1842). The passing off law has changed over time. Previously it was restricted to depicting one person’s goods as another. Later it was extended to trade and services. This was later expanded to business and non-business activities. Now, it applies to many forms of unfair trade and unfair competition where one person’s activities harm the goodwill associated with the activities of another person or group of individuals.

It is difficult to prove passing off as claimants need to demonstrate that at least some of the public is at risk of confusion between the two businesses. The most important question in Passing off is whether the conduct of the defendants is such as to confuse the public that the business of the defendants is a plaintiff or a cause of confusion between the business activities of the two. This Act of misrepresentation often damages the goodwill of a person or business, causing financial or reputational damage.

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Kinds of Passing off

There are two kinds of passing off-

Extended Passing-Off – 

Where misrepresentation as a particular quality of a product or service damages the harmony or goodwill of another person or business.

Reverse Passing Off – 

Where a trader markets, sells or produces the goods or services of another person or business.

Elements of Passing-Off

There are three basic elements of passing off. The three elements are also known as the Classical Trinity, as restored by the House of Lords in the case of Reckitt & Colman Ltd v Borden Inc. which established the three elements of passing off, i.e. misrepresentation, goodwill, and damage. They are:

Misrepresentation- 

Where the defendant takes or tries to make the public believe that the goods and services which he is providing are of the plaintiff.

Goodwill- 

It must be proved that the person or the goods and services own some kind of reputation in the mark which associates the public with that specific goods or services. It has been more broadly defined in the case of Trego v. Hunt by Lord Macnaughten as:

Often it happens that the goodwill is the very sap and life of the business, without which the business would yield very little or no profits. It is the whole advantage whatever it may be, of the reputation and connection of the firm, which may have been made up by years of honest work or gained by the bountiful expenditure of money.’

In the case of CIT v. B.C. Srinivas Seti, it was held that that goodwill is influenced by everything related to the business, the personality of the owners, the nature and character of the business, its name and reputation, its location, its influence on the contemporary market and the current socio-economic psychology.

Damage- 

At last, to succeed in taking action to stop the infringing party, the offended party must prove that it has suffered an actual or reasonable loss of business due to the alleged misrepresentation. This is generally difficult to prove and involves the inspection of books of account of both parties on practical grounds. This is sufficient to prove the possibility of loss. It must be proved that the misrepresentation must have harmed the goodwill or cause loss to the reputation.

Difference between Passing Off and Infringement of Trademark

Passing off and trademark infringement is distinctive and is of different concepts. Passing Off is the protection of the goodwill of traders about to with concerning goods and services. “Goodwill” is the reputation of the brand that was built about to with concerning specific goods or services and which attracts customers. It can be shared between an individual merchant or in some cases, such as all manufacturers of a specific product in a specific area.

A party who holds the rights to a certain trademark can sue other parties for trademark infringement. The possibility of confusion determines whether a person can sue another business or person for trademark infringement. If the use of another person’s trademark to sell a product or service is likely to cause consumer confusion about the source of the product or service, then the person poses a potential for trademark infringement.

The main difference is that trademark infringement is related to registered rights, and passing off related to unregistered rights of a person or company, entity, etc. In simple words when the trademark has been registered by the owner and infringement happens, then it becomes a suit for infringement, but if the trademark has not been registered by the owner and infringement happens, then it becomes a case of passing off.

Passing Off

Trademark Infringement

Common law remedy

Statutory remedy

Trademark need not be registered.

Trademark must be registered.

The Plaintiff has not only to prove the deliberate similarity among two conflicting marks but also have to prove the presence of confusion among customers and the likelihood of damage to the plaintiff’s goodwill and reputation.

The Plaintiff has to prove that the infringing mark is deliberately the same as the registered trademark in the matter of similar goods or services, and no further proof is required as there is an assumption of confusion.

Prosecution under criminal remedies is higher as compared to trademark infringement. The plaintiff has to prove goodwill, misrepresentation, and damage has been caused in his part.

Prosecution under criminal remedies is easier than passing off. If anyone of the prohibited acts has been committed, the infringer will be liable unless a specified defence applies.

 But in passing off this benefit is not present and under Section 20 of civil procedure code, 1908 the suit can be instituted where the defendant resides or where the business is carried on or where the cause of action had arisen.

 The suit can be instituted under Section 134 of the Trademarks Act, 1999 where the registered user of the particular trademark actually or voluntarily resides or where the business is carried on. So, this is a benefit in part of the plaintiff.

Remedies for Passing Off

To succeed in passing off claims, the plaintiff must show that the misrepresentation made by the defendant, which has damaged the goodwill. In a passing-off action, the plaintiff can claim any of the following remedies:

1. Apply for an injunction prohibiting the business from using your trademark or goodwill: An Injunction to prevent further use of the trademark by the defendant. An interim injunction may continue until the claim has been fully tested and is intended to prevent the goodwill of the claimant from further harm during the intervening period. The injunction is an effective remedy in the prevention Infringement of registered trademark or unregistered trademark. Section 135 of the Trademark Act, 1999 provides injunctive relief. An injunction can be given in various types:

• Anton Piller Order: These are prior partial orders to inspect the defendant’s premises. The court may order the plaintiff where the defendant is likely to Destroy or dispose of materials which contain the trademark of the plaintiff
• Mareva injunction: In such order, the court has the power to freeze the assets of the defendant where the property is likely to be dissolved or cancelled, so granting judgment against him will not be enforced.
• Interlocutory Injunction: it is one of the most commonly used forms of an injunction. It acts to take action against the defendant based on former Violation. Interlocutor prohibition is an order to prevent the defendant from continuing usage of the trademark, which is leading to infringement of the unregistered trademark. It has the objective of preventing one from further infringement.
• Perpetual injunction: It is an injunction that prevents the defendant completely, for all time from performing any act that violates the right of the owner of the trademark. A perpetual injunction is usually granted when the case is finally settled.
• Infringing goods to be destroyed: A search and seizure order from the court prohibits the defendant from delivering all goods or products that are labelled with the brand name. Here, the court can direct the return of related material accounts and destroy all such goods.
• Sue for damages or seek to account for lost profits: Damages are compensation for the loss which can be recovered by the real owner of the trademark from the defendant. The monetary value of financial loss or loss for the reputation of the brand is recovered under damage. The amount of the damage and the account of lost profits will be awarded by the court after taking into consideration the actual and certain loss of the owner because of the passing of.

Defence for Passing Off

Use of own name carefully: The defendant has the right to use his name, mark or any symbol and the fact that there may arise of confusion. If any confusion arises, which comes in the attention of that defendant, it is the obligation upon the defendant to take reasonable care to qualify the representation to avoid confusion among customers.

1. The name, sign or other marks that are sought to be withheld is not specific to the plaintiff’s goods or business.
2. There is no presence of goodwill in the mark.
3. The plaintiff has given consent or encouraged the usage of the mark.
4. A separate case of passing off.
5. The goods and services or business of the plaintiff and the defendant are completely different: if both the defendant and plaintiff are sharing the same trademark but they are providing different goods and services or business then they can take the defence in the case of passing off. For example, LLOYD is a trademark that is used by both the plaintiff and defendant but one is an educational institution and the other is providing the services of electric appliances. So, in this case, one can take the defense of providing different services.

The passing off law is complicated, and it’s hard and expensive for the plaintiff to prove the claims as compared to trademark infringement. The plaintiff has to prove goodwill, misrepresentation, and damage has been caused in his part.

Cases

Britannia Industries Ltd. v. ITC Ltd. 2017 (70) PTC 66 (Del)

The respondent, i.e. ITC Limited who filed a civil suit against the appellant, Britannia Industries Limited, for the infringement of the copyright of the trade dress of the respondents’ product Sunfeast Farmlite All Good, which is No Added Sugar and No Maida Digestive Biscuits. The court said that the appropriation of and exclusivity claimed vis-à-vis a get-up and particularly a colour combination stands on a different footing from a trademark or a trading name because colours and colour combinations are not inherently distinctive.

It should, therefore, not be easy for a person to claim exclusivity over a colour combination, particularly when the same has been in use only for a short while. It is only when it is established, maybe even prima facie, that the colour combination has become distinctive of a person’s product that an order may be made in his favour. We feel that the present is not such a case. When the first element of passing off, in our view, is not established, we need not examine the other elements of misrepresentation and the likelihood of damage. 

Nirma Limited v. Nimma International and Anr. 2010 (42) PTC 307 (Del)

Plaintiff (Nirma Limited) was the owner of the trademarks’ Nirma ‘and in Nima’, registered in 1979 and 1982 respectively, for dealing with detergent powder, toilet soap, etc. The plaintiff was facing the infringement of his trademark by ‘Defendants’ (Nimma International and Anr.), The use of the marks’ Nimma International’ and ‘Nimson’s Nima Care’ for its cosmetic products.

 The plaintiff sued for a permanent injunction against the defendants, who wanted to prevent the use of the aforesaid mark, as an amount for the plaintiff’s trademark infringement as well as the passing off. The court held that the two marks’ Nimson’ and ‘Nirma’ are phonetically as well as semantically different, and the trade channels and classes of purchasers of goods sold under these marks also differ. Hence, ‘Nimson’ is not deceptively similar to ‘Nirma’.

But in the case of ‘Nimma International’ is different. Ownership of any registered trademark in the matter of ‘Nimma’ is not proved through the Defendants’ documents, while the Plaintiff’s registration in the matter of its mark ‘Nirma’ was strong and had a reputation in three decades. The Use of ‘Nimma’ will create confusion in the mind of the public to believe that the goods and services belong to the Plaintiff. Therefore, the defendants were permitted for the usage of ‘Nimson’ but were restrained from the usage of ‘Nimma’, or any other mark including ‘Nima’.

Conclusion

The protection of the trademark is necessary for the business point of view as well as for the protection of customers from fraud and cheating. The passing-off action is applicable in unregistered goods and services. The scope of passing off is wide as compared to infringement of the trademark.

Even though the process and remedies of passing off suit are the same for both registered and unregistered marks, the burden of proof becomes greater when it is for unregistered marks as it becomes difficult to establish goodwill and reputation. To allow unregistered trademarks, the Act provides relief to a certain extent to several users who would otherwise not be able to take any kind of legal remedy for infringement of their marks.  

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This article is written by Ayush Verma, a student of 2nd year from RMNLU, Lucknow.

Introduction

In part III of the Constitution of India, also referred to as Magna Carta of the constitution, the constituent assembly has provided the fundamental rights to the citizens of India. The rights guaranteed under it are to be protected by the State, and in case of its failure, the citizens are given the right to claim them against the State by way of filing a writ petition. Hence, it is important to understand what comes under the ambit of ‘State’ to ascertain the protection of these rights.

According to Article 12 of the Constitution of India, the term ‘State’ includes the Central Government and State Governments, Parliament and Legislatures, and all local or other authorities functioning under the Government of India or within the territory of India.^[1] The mention of these authorities in the given provision means that they are capable of violating the fundamental rights of the citizens, and therefore, a writ petition can be filed against them under the Article 32 or 226. Now, the problem arises in acknowledging the authorities that would come under ‘other authorities’ mentioned in Article 12. This is where the question arises that ‘whether Judiciary can be regarded as a State’ as in course of giving complete justice to the citizens, it can also violate their fundamental rights. Also, the word ‘includes’ mentioned in Article 12 is of great relevance indicating that the definition of ‘State’ is not exhaustive.

Article 12 was originally introduced in the draft Constitution as Article 7. While defining the scope of this Article, Dr. Ambedkar said the fundamental rights would be binding on every authority and by the word ‘authority’ he meant every authority that has the power to make laws or the power to have discretion vested in it.^[2] In the case of Naresh Shridhar Mirajkar v. State of Maharashtra^[3], Justice Hidayatullah in its dissenting opinion opined that the Judiciary should be put under the ambit of Article 12, stating that the word ‘State’ must include the ‘courts’ because otherwise the courts would be allowed to make rules which violate the fundamental rights of the citizens.^[4]

Doctrine of ‘State Action’ in the US

In US, the concept of ‘State action’ evolved due to the mention of the word ‘State’ in Section 1 of the 14^th Amendment to the US Constitution as follows:

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”^[5]

The above concept has been enlarged to curb any kind of arbitrary exercise of power by the State. In the case of Minneapolis R. Co. v. Beckwith^[6], it has been held that prohibition under 14^th amendment extends to any state action, legislative, executive, or judicial, and against any agency exercising any of the powers. This was further approved by the court in the Ex Parte Virginia^[7], where the court observed:

“A State acts by its legislative, its executive, or its judicial authorities. It can act in no other way. The constitutional provision, therefore, must mean that no agency of the State, or of the officers or agents by whom its powers are exerted, shall deny to any person within its jurisdiction the equal protection of the laws. Whoever, by virtue of public position under a State government, deprives another of property, life, or liberty, without due process of law, or denies or takes away the equal protection of the laws, violates the constitutional inhibition; and as he acts in the name and for the State and is clothed with the State’s power, his act is that of the State.”

The concept was evolved to give protection to the citizens against all forms of arbitrary actions by the governmental authorities.^[8] This has been clarified by the US Supreme Court in Virginia v. Rives^[9], where it observed that a judicial decision is included within the scope of state action for the purpose of 14^th Amendment to the Constitution.^[10] Hence, the Constitution of the US has the provision to decide the liability of the Judiciary in case of violation of fundamental rights.  

Present status of Judiciary under Article 12

The present-day scenario on whether the Judiciary can be regarded as ‘State’ depends on the judicial and non-judicial functions of the Judiciary. As far as the former is concerned, the Judiciary cannot be regarded as a State while the latter would bring the Judiciary under the definition of ‘State’. It has been held that where the Supreme Court has exercised its powers in contravention to the fundamental rights of the citizens, the remedy under Article 32 can be sought.^[11] Here the court also emphasized that the word ‘State’ must include ‘courts’ else it will enable the courts to make laws in contravention of fundamental rights.^[12]

According to Article 141 of the Constitution, the law made by the Supreme Court is binding upon all courts within the territory of India.^[13] Hence, there is no scope for challenging the decision of the Supreme Court in case of violation of fundamental rights. However, there is no such reason as to why the decision taken by the subordinate courts cannot be questioned as violative of fundamental rights. This, therefore, remains open to debate.

Though the Supreme Court in the case of Budhan v. State of Bihar^[14] has regarded the action of the Judiciary as a state action under Article 12 in the case of violation of Article 14, but it has further created a limitation that there should be a ‘wilful and purposeful discrimination’ which would essentially depend on the facts and circumstances of the case.^[15] This issue was raised again in the case of Naresh Sridhar Mirajkar v. State of Maharashtra^[16], where the petitioner contended that there is a violation of Article 19(1) (a) by the High Court, the majority ruled out that there was no violation of fundamental right under Article 19(1) (a) and while determining the question that a writ of certiorari can be issued or not against the High Court of Bombay, it relied on the case of Ujjam Bai v. State of U.P.^[17], where it was held that any judicial or quasi-judicial authority in the exercise of its jurisdiction cannot violate fundamental rights, and hence a writ of certiorari cannot be issued against the High Court. It has been held that if an order passed by the Supreme Court violates the constitutional rights of the citizens and is against the principles of natural justice, it should be corrected by ex dibito justitiae (i.e. as a matter of right), and it is not amenable to be corrected by the writ jurisdiction under Article 32 of the Constitution.^[18]

The issue in Naresh Mirajkar case was recently dealt again by the Supreme Court in the case of Riju Prasad Sarmah v. State of Assam^[19], where the petitioner contended that ‘State’ includes all the three organs of the State including the Judiciary, and therefore it cannot perpetuate discrimination in violation of Article 14 of the Constitution. Here the court also held that when a court is acting in its judicial capacity, it cannot be regarded as a State. However, its administrative action is amenable to the writ jurisdiction. The reasoning behind the court’s ruling was that:

“The judicial forum will then lose its impartiality because petitioners, like in the present case, will make a demand that court itself should act as the State and deliver all reliefs in a dispute where the executive or the legislature is not at all involved as a party.”^[20] 

Reconsidering the position of the Judiciary

The Judiciary is not explicitly mentioned in Article 12 as a State. However, Judiciary having the rulemaking powers can be included in the definition of the State. The above conclusion is supported by Article 13 of the Constitution which lays down that any laws (includes rules, regulations, etc.) in derogation of the fundamental rights is void.^[21] Since the Judiciary in India has the powers to make rules, if it were not “the State” for the purposes of Part III of the Constitution, the rules made by it would not be held violative of the fundamental rights.^[22] However, in the case of P.C. Garg v. Excise Commissioner, Allahabad^[23], Supreme Court has struck down the rules made by it as violative of fundamental rights. Also, a writ of certiorari lies against bodies that are acting judicially or quasi-judicially.^[24] Since a writ lies against such decision, it is followed that fundamental rights can be violated by a court. Also, the provisions of Article 15(2) (b) applies to a judge sitting as a judge. Similarly, a judge cannot act in violation of Article 17 by not allowing an ‘untouchable’ into a court.^[25] Therefore, there is a possibility of Judiciary being considered as a State under Article 12.

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The rationale held by the courts while dealing with the State under Part IV of the constitution creates an inconsistency with decisions taken concerning Part III. The courts have differed in opinion about the Judiciary as a State in cases involving Part IV. In the case of State of Kerala v. N.M. Thomas^[26], the majority held that the goals in Part IV must “inform and illuminate” the court’s interpretational task. This was based on the view that the courts are ‘State’ within Article 12:

“Not only is the directive principle embodied in Article 46 binding on the law-maker as ordinarily understood, but it should equally inform and illuminate the approach of the Court when it makes a decision as the Court also is ‘State’ within the meaning of Article12 and makes law even though interstitially, from the molar to the molecular.”

It can now be inferred that Judiciary is a ‘State’ for the purpose of Part IV of the Constitution. But as far as Part III is concerned, the position of courts in still quite ambiguous. However, it is now intriguing that the view taken above provides contrary to what has been stated under Art 36 for the purpose of Part IV, which states that the definition of ‘State’ has the same meaning as in Part III.^[27] This shows paradox in the judicial approach of its own action in defining the ‘State’. Therefore, the ‘State’ for the purpose of Part III should be construed the same as Part IV of the Constitution.

The National Commission to Review the Working of the Constitution (NCRWC) has recommended that an Explanation should be added to the Article 12 wherein the word ‘other authorities’ would mean the authorities whose functions relate to that of a public nature.^[28] Since the courts were established to decide and interpret the law, which is related to the public sphere, therefore Judiciary would fall under the definition of ‘State’ under Article 12. Also, in Section 6(3) (b) of the UK Human Rights Act, 1998, the definition of public authority includes any person whose functions are of a public nature.^[29] Therefore, Judiciary can be added to the definition of ‘State’ under Article 12 and the above provisions are supporting to bring the reforms in this area.

Conclusion

There have been many different interpretations of the definition mentioned under Article 12 but the Supreme Court seems reluctant to include Judiciary under the ambit of the State. At many instances, courts have also contravened the fundamental rights and it is also widely recognized that certain fundamental rights are more prone to be violated by the Judiciary. The inconsistency also exists with Part IV, which is being ignored by the courts despite acknowledgement.

Judiciary in India already exercises immense powers but it should not use its powers to shield itself from the thrust of the Constitution. Now, the duty lies on the Supreme Court to include the Judiciary as a State following the NCRWC recommendations and stop the criticism it is facing due to its abeyance.

References 

^[1] Art. 12, the Constitution of India.

^[2] Samaraditya Pal, INDIA’S CONSTITUTION ORIGINS AND EVOLUTION, 415 (1^st ed., 2014).

^[3] Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1.

^[4] Ibid, at 28.

^[5] U.S. Constitutional, Amendment XIV, S. 1.

^[6] Minneapolis R. Co. v. Beckwith, 129 US 26 (1889, Supreme Court of the United States).

^[7] Ex Parte Virginia, 100 US 339 (1880, Supreme Court of the United States). 

^[8] D.D. Basu, COMPARATIVE CONSTITUTIONAL LAW, 438 (2^nd ed., 2007). 

^[9] Virginia v. Rives, 100 U.S. 313 (1880, Supreme Court of the United States).

^[10] D.D. Basu, COMMENTARY ON THE CONSTITUTION OF INDIA, 656 (8^th ed., 2011). 

^[11] P.C. Garg v. Excise Commissioner, AIR 1963 SC 996.

^[12] Ibid.

^[13] Art 141, the Constitution of India.

^[14] Budhan Choudhary v. State of Bihar, AIR 1955 SCC 191.

^[15] D.D. Basu, Commentary on the Constitution of India, 934 (9^th ed., 2014).

^[16] Supra 3.

^[17] Ujjam Bai v. State of U.P. (1963) 1 SCR. 778.

^[18] A.R. Antulay v. R.S. Nayak, AIR 1988 SC 1531.

^[19] Riju Prasad Sarmah v. State of Assam, 2015 (7) SCALE 602, 61.

^[20] Ibid, at 64.

^[21] Art 13, the Constitution of India.

^[22] H.M. Seervai, Constitutional Law of India, 393 (4^th ed., 2006).

^[23] Supra 11.

^[24] Supra 22, at 394.

^[25] Supra 22, at 395.

^[26] State of Kerala v. N.M. Thomas (1967) 1 SCR. 906.

^[27] Art. 36, the Constitution of India.

^[28] Ministry of Law & Justice, Government of India, NCRWC Report 2002, available at http://legalaffairs.gov.in/sites/default/files/chapter%203.pdf, last seen on 26/9/2019.

^[29] S. 6(3) (b), U.K. Human Rights Act 1998 (United Kingdom).

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This article is written by Shambhavi Tripathi, a 3rd-year student of LL.B. in Panjab University, Chandigarh. The article is an introduction to cyber crimes and cyber law and the impact of cyber crimes. It further discusses the pros and cons of the IT Act, 2000 and changes brought in by the IT (Amendment) Act, 2008.

Introduction

We are living in an era where the internet has become a part of our daily schedule. Everything, from ordering food to shopping online, studying a subject to looking at memes, posting online about your whereabouts to online transactions, has been so engraved in our functioning that we tend to overlook the threats and dangers it poses to us. The web is a worldwide stage, which means that anyone can have access to it. And once people have access to anything, they start violating it.

Cyberspace is a global computer network which felicitates online communication. It allows users to share information and ideas, interact and communicate, play games, engage in discussions, conduct business and many other activities. In other words, this computer-generated worldwide stage of internet and web is known as Cyberspace. 

The Indian Law does not define the term ‘cybercrime’. It is neither defined in the Information Technology Act, 2000 nor in the I.T. Amendment Act, 2008 nor in any other legislation of India. In fact, the Indian Penal Code still does not use the term ‘cybercrime’ even after its amendment by the Information Technology (Amendment) Act, 2008. However, cybercrime can be defined as any criminal activity directly related to the use of computers and the internet, such as illegal trespass into the computer system or database of another, manipulation or theft of stored or online data, hacking, phishing, cyber warfare, spreading computer viruses etc. In simple words, any offence or crime in which a computer is used for committing that crime.

Next, coming to cyber law, it can be defined as the law which governs Cyberspace and protects from cyber crimes and lays down punishments for its violation. Cyberlaw is a common term which refers to legal jurisdiction and regulation of various aspects of the internet and computer security. In India, cyber laws are regulated by the Information Technology Act, 2000.

Impact of Cyber Crimes

Impact on Economy 

People today are highly dependent on computers and the internet for money transfers and making payments. Therefore, the risk of being subjected to online money frauds is extremely high. Norton CyberCrime disclosed in 2011 that over 74 million people in the United States were victims of cybercrime in 2010, which directly resulted in financial losses of approximately $32 billion. Even in India, with the emergence and popularity of “cashless India”, chances of being duped online are also increasing, if one is not smart enough to use safe online transaction platforms and apps.

Not just individuals suffer from financial losses due to cybercrimes; some of the surveys conducted have stated that approximately 80% of the companies participating in the surveys accepted financial losses due to cybercrimes.

Leakage of Personal Information

Not just financial losses, people also suffer from leakage of their personal information. Many social networking sites, no matter how safe, are still an open platform for everyone to see someone else’s life, which can be dangerous. Apart from this, hackers can also hack into one’s account and collect whatever information they want to. Spamming and phishing also cause harm to people.

Loss of Consumer Trust

With such financial losses and a threat to personal information, consumers start losing trust in such sites and apps. Even if the person committing the crime is someone else, the site or app is declared to be fraudulent and unsafe. Also, it makes people reluctant to start a transaction when their credit card information is asked. This affects the credibility of an e-business and consequently jeopardizes a potential business.

The threat to National Security

Nowadays, the military of most of the countries is using advanced computer technologies and networks. Information warfare, albeit old, is used to spread malware, which can cause network crashes and spread misinformation. Not just militaries but terrorists and cybercriminals also these technologies to intrude in other Country’s security networks and obtain information. They also send threats and warnings through computer systems.

Need of Cyber Law

With the evolution and development of the internet, information technology and computers, challenges imposed by cyber crimes have also increased. Therefore, cyber laws regulate all fields of laws in which cyber crimes can be committed, such as criminal law, contract, intellectual property law and tort. Cyber laws deal with various kinds of concerns, such as free speech, safety, intellectual property rights, privacy, terrorism, e-commerce and jurisdiction of cyber laws. 

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With the increase in the number of internet users, the need for cyber laws and their application has become very urgent in modern times. Cyber laws are needed because: 

1. Consumers are increasingly using online transactions with the increased popularity of payment apps and sites, as they are easy and efficient. Government’s scheme of ‘Cashless India’ has also gained popularity resulting in a high amount of online transactions.
2. Email, SMS, messaging apps and social networking sites have become the main mode of communication.
3. Companies are highly dependent upon their computer networks to keep their electronic data safe.
4. Most of the government forms are now filled in electronic format, for example, Income Tax Return, Passport application, Pan Card application, Company law forms etc.
5. Digital Signatures and authorization is fast, replacing conventional ways of identification for transactions.
6. Computers and networks also help in non-cyber crimes as well. As most of the data, these days are stored in computers and mobile phones. The evidence collected from them can help in various crimes such as kidnapping, terrorist attacks, counterfeit currencies, tax evasion and such.
7. Cyber laws help in representing and defining the model of cyber society and maintaining cyber properties.
8. Digital contracts are also gaining popularity in modern times; cyber laws help in protecting the rights of these legally enforceable digital contracts.

Scope of Cyber Law

The scope of cyber law is very wide as it deals with various kinds of challenges and threats imposed by the internet and developments in computer technology: 

1. Dealing with computer hackers, spammers and those who spread malware and viruses.
2. Protecting the privacy of the individuals and preventing frauds in money transactions.
3. Regulations and categorization of contractual obligations related to the acquisition of software.
4. Protection of Intellectual Property Rights and dealing with issues of copyright in a computer program and patent protection of software programs.
5. Dealing with the purchases from other jurisdictions under e-commerce.
6. Regulation and dealing with the issue of trafficking in domain names under the law; and
7. Regulation of the content and information available on the internet.
8. Protection and regulation of freedom of speech and expression and right to information.

Cyber Law in India and the IT Act, 2000

In India, cyber laws are contained in the Information Technology Act, 2000. The main object of this Act is to provide legal recognition to e-commerce and electronic formats and to facilitate the filing of electronic records with the Government. This legislation lays down rules and regulations related to cybercrimes, electronic information and formats, electronic authentication and digital signatures, and liability of network service providers. The I.T. Act is based on the United Nations Model Law on Electronic Commerce 1996 (UNCITRAL Model) recommended by the General Assembly of the United Nations by a resolution dated 30 January 1997.

The Indian Cyber Law covers these major aspects of Cyberspace and cybercrime:

1. The Indian Cyber Law makes every format in electronic form legal, which means anything that you write, share and publish electronically is now considered legal.
2. It also makes all electronic contracts legal, which means that an offer can be electronically made and accepted, and it would amount to a valid and binding electronic contract.
3. The Indian Cyber Law recognizes and legalizes the concept of digital signatures and electronic authentications. 
4. Indian Cyber Law covers almost all kinds of cybercrimes and provides punishment for the same. 
5. It also punishes the people of other nationalities, provided their crimes involve any computer or network situated in India.

Legalization of everything in electronic format, such as publications, communications, signatures and authorization, means that it is all now valid and can be used in any proceedings.

Pros of the I.T. Act, 2000

1. Before the enactment of the I.T. Act, 2000, the usual means of communication such as emails and texts were not considered as a legal form of communication and due to this, they were not admissible as evidence in a court of law. But after the enactment of I.T. Act, 2000 electronic formats and communication got legal recognition, and now they are admissible as evidence in a court of law.
2. With the introduction of the I.T. Act, 2000, now companies can carry out e-commerce and e-business and promote online transactions commercially using the legal infrastructure provided by this Act. 
3. Digital signatures and authentications have been legalized after the I.T. Act, 2000, which is a great assistance to carry out transactions online as they help in verifying the identity of an individual on the internet. 
4. The I.T. Act, 2000, provides for corporate to have statutory remedies if anyone hacks and breaks into their computer systems or networks and causes any kind of damages. The I.T. Act, 2000 provides for monetary damages, by the way, compensation, as a remedy for such crimes. 
5. The I.T. Act, 2000 has defined, recognized and penalized various cyber crimes such as hacking, spamming, identity theft, phishing and many more. Prior to this Act, cybercrimes were not included in any legislation, and there was no legal remedy for such crimes. 
6. The Act allows companies to issue digital certificates by becoming Certifying Authorities. 
7. This Act also allows the Government to issue notices on the internet through e-governance. 

Cons of the I.T. Act, 2000

1. The I.T. Act, 2000 may cause a conflict of jurisdiction. 
2. Electronic commerce is based on the system of domain names. The I.T. Act, 2000 does not address the issues relating to domain names, rights and liabilities of domain owners. 
3. The I.T. Act, 2000 does not provide for the protection of Intellectual Property Rights as issues regarding copyrights and patents are very common in relation to computer programs and networks.
4. The offences covered and defined under the I.T. Act, 2000 are not exhaustive in nature. Since, with the advancements in technologies, computer programs and networks are constantly changing and evolving, and with this advancement, the nature of cybercrimes is also evolving. This Act does not cover various kinds of cybercrimes such as cyberstalking, cyber fraud, chat room abuse, theft of internet hours and many more. 
5. The I.T. Act, 2000 has not addressed issues like privacy and content regulation, which is very necessary, considering the vulnerability internet poses. 
6. Lastly, the main issue with this Act is its implementation. The I.T. Act, 2000 does not lay down any parameters for its implementation and regulations.

Information Technology (Amendment) Act, 2008

Few amendments have been made in the I.T. Act, 2000 which have improved certain provisions of the original Act. Few of the amendments are:

1. The term’ digital signature’ has been replaced with ‘electronic signature’ to make the Act more technology-neutral. 
2. The term ‘Communication device’ has been defined. According to the definition, ‘Communication device’ means cell phones, personal digital assistants or combination of both or any other device used to communicate, send or transmit any text, video, audio or image.
3. The term ‘Cybercafe’ has also been defined as any facility from where the access to the internet is offered by any person in the ordinary course of business to the members of the public. 
4. New Sections have been added to address data protection and privacy.

Conclusion

The role and usage of the internet is increasing worldwide rapidly. It has increased the convenience of the consumer as everything can be done staying at home; however, it has also increased the convenience of cybercriminals to access any data and information which people intentionally and unintentionally provide on the internet and otherwise. So, along with proper legislation to protect and prevent cybercrimes, it is necessary that people are made aware and educated regarding cybercrimes. 

Nevertheless, even though internet users let out their personal data easily, it still remains the responsibility of the State to protect the interests of its people. It has been recently found that big companies like Facebook use personal information and data of its users and use this information to influence the political views of people. This is a serious threat to both individual’s privacy and the Nation’s interests. With the introduction of the I.T. Act, 2000, the issue of crimes in Cyberspace in India has been addressed very smartly, yet, the proper implementation of the Act is still lacking. The need for efficient cyber laws is very evident, considering the current scenario, but individuals should also be aware of such threats while surfing the internet.

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This article is written by Mohammed. Irshad, a 4th-year student of BA LLB in National Law University, Kochi. The article discusses on the topic of primal concern i.e., Electricity Theft. 

Introduction

Electricity theft is indeed a growing problem across the world. The theft is predominantly prominent in under-developed countries and developing countries, particularly in many African and South Asian countries. Electricity theft is an alarming problem in most developing countries and every year; this has been a loss of billions of dollars. And ultimately it is affecting the consumers who legally use the power energy. It is they who bear the loss at the end, and it also vigorous disturbs social justice as well. Further, it affects the investment decision and hampers economic growth and thereby the future of nations as well. 

Different Modes Of Electricity Theft

Given below are the most prominent Four kinds of “theft” in almost every country, including India.

Billing Irregularities

Billing irregularities are the most commonly found electricity theft in India; it can be either intentional or unintentional. What generally happens in an intentional irregularity is that the billing authority would take some menial amount as a bribe and record the meter at a lower number than what it is shown in real life. The Unintentional irregularities range from ineffective measuring mechanism to substandard staff, which ultimately results in a large loss unintentionally. 

Unpaid Bills 

Some people and organizations do not pay what they owe for electricity. Residential or business consumers may have left the city, or an enterprise has gone bankrupt.

Fraud

Fraud happens especially when the consumer deliberately tries to deceive the Utility. The commonly seen practice is tampering the meter so as to lower the reading from what they have actually used. A consumer with little technical knowledge can easily tamper the low equipped fragile meters.

Stealing Electricity

Another mode of Electricity theft is stealing electricity. This is mainly done by rigging a line from the power source to a meter (where it needed bypassing). The wires such as Diablitos or Little devils are used by many illegal customers to steal electricity from the nearby Electric posts which in fact push an overburdened electrical grid over the edge. 

Direct Connection from the Pole 

This is the most predominant method of electricity theft and the easiest way of doing it. Since the meters and other equipment in this section are in the 220 V mechanism and where consumers are mostly houses and small businesses, a direct connection from the pole is much easier than the high-voltage system. What all is needed is just a pair of rubber gloves, a knife, and a ladder. 

Some of the Technical Methods

Remote

They are peculiar remotes available in markets which slow down the meter speed. The remotes are largely made in China. 

Phase-to-phase connection

The phase-to-phase connection is another method. This is more or less similar to that of using an alternate neutral line, but in this case, the system voltage will become the phase to phase voltage at 240 or 380 volts.

Using alternate neutral lines 

What happens, in this case, is that a person would use a small transformer to use it as an alternate neutral line hence the meter which uses the same sought of the neutral source will automatically read the incoming voltage at a comparative lower pace. This results in showing reduced unit count. One important factor which stimulates the theft by using alternate neutral line is the fragility of the single-phase system, which often has only one wire going into a house, i.e. “hotline. And neutral is usually grounded (electrically connected to the earth) and at times is provided by the foundation of the house to be more generic. 

Meter tampering/breaking seal 

This is essentially the same as that of what happens to the HV meters. Other methods of electricity theft include: Tapping off a nearby paying consumer, damage done to meter enclosures, and using magnets to slow down the spinning discs in the meter housing.

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General Concerns And Impact On Economy 

The wordings of the International Energy Agency are worth noting in this regard. It said,

“Thousands of homes and businesses have been hit with power outages that electric company officials blame largely on pirates. The illegal lines are easy to detect as they are often above ground and highly visible. However, one finds reports of staff being assaulted and needing police security to carry out the removal of the lines. Corrupt staff from the electricity organization may take bribes to allow the practice to continue. On a larger scale, businesses may bribe power organization staff to rig direct lines to their buildings or offices and the power does not go through a meter. Bribes can be much less than the cost of power. Money also can be given to inspectors to keep them from finding and/or reporting the theft.”

In short, the concerns are not limited to a particular area as such; the electricity theft occurs due to various factors; few are mentioned here. Whatever form it might be, it ultimately affects the economy.

It is necessary to understand that from a business perspective, electricity theft results in economic losses to the Utility of an economy. The combined losses as a result of electricity theft, whichever form it might be including non-payment of bills have a severe impact on the economy.

Concerns In India

It is important to note that the electricity supply in India is not a commodity that is taken for granted by consumers. We should acknowledge the fact that power is absolutely valuable to Indians, that is why there have been many brutal attacks on Inspectors from electric companies so as to avoid paying their electricity bills. Another fact which we should acknowledge is the widespread tampering with the meters so as to lower the reading and thereby to circumvent the payment of a higher amount. According to Bloomberg estimates there was an annual loss of $ 17 billion revenue loss annually due to electricity theft alone, this figure itself connotes to the menacing effect of electricity theft on the economy as such.

We should relate the basic problem of scarcity here, i.e. “resources are limited, and needs are unlimited”. Relating the same concept to our scenario, we should always keep in mind that electrical energy is an energy which is limited and the need of people is unlimited so conserving the same should be a primal concern. If we analyze the common practice of electricity theft, we should accept that most of the theft is happening in the process of transmission and distribution. Today our society as such is undergoing a huge problem corresponding to power theft. The ways people are committing thefts are such as they either attach magnets in case of electromagnetic energy meter or might attach a simple circuit generating electromagnetic rays which would stop regular working of electronic energy meter. Moreover, people even try to breach the energy meter seals for making various circuited connections that will help them to reduce their electricity bills. 

When we trace the history of law governing the Electricity sector before Electricity Act 2003, it was The Indian Electricity Act 1910 and further the Electricity (Supply) Act, 1948 and the Electricity Regulatory Commission Act, 1998. 

Offences And Penalties

The Electricity Act 2003 extensively deals with various aspects of electricity regulation in India. The Electricity Act essentially aims at prevention of Electricity theft at any cost. It is treated as an offence which attracts both fine and Imprisonment. Part XIV of the Electricity Act 2003 deals with the offences and penalties under the Act. This chapter contains 15 Sections from 135 to 150. 

Section 135 of the Act defines Electricity Theft. The section treats any dishonest taping of electricity, tampering of a meter in any manner, using the current reversing transformer, damaging the meter or wire so as to interfere with the proper accurate reading of usage of electricity etc. as electricity theft. This section is an elaborate section which categorically states the various forms of electricity theft, but only a few of them are stated here. What all is needed to make a person liable under Section 135 is that he should act “dishonestly” which means there should be men’s rea (Guilty mind) to attract the liability for electricity theft. Further, there should be a physical act as elaborated under the section. If both elements are satisfied, one can be made liable for electricity theft.

And the punishment is prescribed based on the basis of the amount of load and subsequent offence. For less than 10 kilowatts the first conviction shall not be less than three times the financial gain on account of such theft of electricity and in the event of a second or subsequent conviction the fine imposed shall not be less than six times the financial gain on account of such theft of electricity. And if the amount exceeds 10 kilowatts the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity and in the event of a second or subsequent conviction, the sentence should be Imprisonment for a term not less than six months, but which may extend to five years and with fine not less than six times the financial gain on account of such theft of electricity:

Further Section 136 punishes one who cuts away electric lines and material for wrongful gain and convenience. The section treats this as an offence punishable for a term which may extend to 3 years with fine or both. And the subsequence offender shall be punished for not less than 6 months but which may extend to 5 years.

Further Section 138 deals with unauthorized interference with meters or works of the licensee so as to wrongful loss to the government. The offender under the section shall be punishable with Imprisonment which may extend to 3 years or with fine not exceeding Rs 10000. And in case of continuing offence daily fine extending Rs 500.

Subsequently, the other few sections of chapter xiv deal with various offences like Malicious wasting electricity, extinguishing public lamps, negligent waste of electricity or injuring works etc. 

Cognizance

Section 151 deals with cognizance of an offence punishable under the Act. The cognizance of an offence punishable under the Act can only be taken upon a complaint in writing made by:

• Appropriate Commission
• Any of the authorized officer 
• Chief Electrical Inspector or Electrical Inspector 
• Licensee 
• Generating Company

Another peculiar thing to be noted here is that the special court constituted under Section 153 of the Act is also competent to take cognizance of an offence under the Act without the accused being committed to it for the trail. It also provided that the court may also take cognizance of an offence punishable under the Act upon a report of a police officer (commonly named as charge sheet) filed under Section 173 of the Crpc.

Deen Dayal Upadhaya Gram Jyoti Yojana (DDUGJY)

It is very important to know DDUGJY in the context of electricity spectrum in India. It is a very new initiative taken by the Government of India in 2015. The very reason to initiate such a scheme was based on some future concerns such as the increase in demand of power, the archaic traditional method followed for power generation etc. And the scheme aims at changing the approach towards electricity in every respect. The primary focus of this scheme is to spread the benefit of electricity to every household in the country and the sub-transmission and distribution of electricity in rural areas. It also has many other aims including building effective metering system so as to reduce the power losses, ensuring uninterrupted power supply in schools, hospitals, panchayat etc.

And ultimately all the endeavours under the scheme can be related to reducing the power theft in India. Since the basic reason for power theft in our country is the scarcity and availability of electricity. And this scheme intrinsically focuses on solving the said problem. 

Conclusion

It is rudimentary to understand that power theft is a major area of concern to date, and there is a pressing need for a pragmatic solution for the same. The schemes Like Deendayal Upadhyaya Gram Jyoti Yojana will have an important role to play in this respect. Indeed, we should acknowledge that there are enough laws and regulations to protect the electricity sector and the crimes committed therein, so what is needed is a proper implementation mechanism for the already existing laws. The scheme, including DDUGJY, is not properly implemented, there have been many lacunas in the implementation process. 

References

1. Smith, ‘Electricity Theft As A Relational Issue: A Comparative Look At Zanzibar, Tanzania, And The Sunderban Islands’ [2012] 16(1) Journal On Energy For Sustainable Development 2071
2. Malka Tarannu And Others, ‘Electricity Theft In India: Its Measure And Solution’ [2017] 3(5) International Journal Of Advance Research, Ideas And Innovations In Technology 406-409
3. Ahmad, Sanaullah, ‘Detecting And Minimizing Electricity Theft: A Review’ [2015] 1(1) Journal Of Emerging Trends In Applied Engineering Er
4. J. B. Gupta, “Electrical Power System Volume 3” S.K.Kataria & Sons. Second Edition. January 2004.
5. P. N Khare MSEB, Power Theft – A Root Cause of T& D Losses
6. Https://Www.Iea.Org/
7. Scc Online
8. The Electricity Act, 2003
9. https://www.bankbazaar.com/saving-schemes/deen-dayal-upadhyaya-gram-jyoti-yojana.html

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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Can Environmental Lawyers Make Money? – Dispelling a Stigma

You will hear a stigma about environmental lawyering that there is no money in it. In the Indian context, this stigma arises because three out of the four benches of the National Green Tribunal where environmental matters are fought have been hearing matters only for two hours per day and that too twice a week ever since 2018. When you add this with the global reality that pro-environmental lawyering has always been associated with activism and non-profit based organizations, you realize wherefrom this stigma emanates.

Of course these days you will find many corporations spending some money on the protection of the environment out of their corporate social responsibility and other budgetary allocations. At times, especially in cases of private companies that operate mines, factories etc or do infrastructure and real estate development work, they also do this as a part of their environmental compliances.

Development of environmental understanding in the Indian legal context owe its origin to India’s international sovereign obligation as signatories to international legal instruments such as the Stockholm Declaration 1972, the UNESCO Convention Concerning the Protection of the World Cultural and Natural Heritage, 1972, the Rio Earth Summit, 1992, the Kyoto Protocol 2008 with Doha Amendment 2012 and Paris Agreement on Climate Change, 2016. These commitments have led to the framing of multiple laws such as the Water (Prevention and Control of Pollution) Act 1974, Air (Prevention and Control of Pollution) Act 1981, Wild Life (Protection) Act 1972, Forest (Conservation) Act 1980, Public Liability Insurance Act 1991, Biological Diversity Act 2002, National Green Tribunal Act 2010 and the Environment (Protection) Act, 1986. The last-mentioned law is an umbrella legislation under which several pro-environment notifications such as the E-Waste (Management) Rules 2016, Bio-Medical Waste Management Rules 2016, Plastic Waste Management Rules 2016; Solid Waste Management Rules, 2016; Construction and Demolition Waste Management Rules 2016; Hazardous and Other Waste (Management and Transboundary Movement) Rules 2016, Manufacture, Storage and Import of Hazardous Chemicals Rules 1989,  the Coastal Regulation Zone (CRZ) Notification 2019 and the Environment Impact Assessment (EIA) Notification, 2006 have been framed.

Alongside, judicial activism of the 1980s and 1990s has led to several sound environmentally protective principles being recognized within the environmental legal structure of India. For example, the right to ‘sustainable development’, a concept that was recognized in international law through Agenda 21 of the Rio Declaration of 1992, was made a Fundamental Right to Life under Article 21 of the Constitution through the Supreme Court Judgment in Vellore Citizens Welfare Forum vs. Union of India, AIR 1996 SC 271. Similarly, UN Report “Our Common Future”, popularly known as ‘Brundtland Report’, 1987 underlined the concept of ‘intergenerational equity’ as an environmental conservation principle and the same was made a part of Indian environmental law and jurisprudence by the Supreme Court Judgment of T.N. Godavarman Thirumulpad v. Union of India and Ors, (2006) 5 SCC 28.

Thus, you will find that a sound and thorough legal framework exists surrounding the environmental law in India. Likewise, a regulatory structure in these regards is also in place. The state-level departments of environment and the central Ministry of Environment, Forests and Climate Change (MoEF & CC), the state and the central pollution control boards (SPCB and CPCB), along with various ground level authorities such as local bodies like Panchayats, Municipalities and Municipal Corporations, along with  special bodies which exists both at national levels (such as the National Tiger Conservation Authority) and ground levels (Such as the East Kolkata Wetlands Management Authority for the protected East Kolkata Wetlands of West Bengal). Licenses and permits from such authorities are absolutely essential for any agency or body corporate seeking to engage in activities that are bound to affect the environment. For example, if someone wishes to make a construction in a forest or even a non-forest area, permission for felling trees along with necessary fees for facilitating afforestation are to be sought from and paid to respectively from the relevant Divisional Forest Officer (DFO), Regional Forest Officer (RFO) and even, in many area-specific instances, from the local bodies such as the Gram Panchayat of appropriate administrative jurisdiction.

Furthermore, even the states are empowered to make laws on environment and environmental issues under Schedule VII List III (Concurrent List) of the Constitution of India. Thus, many states have their own laws touching upon issues such as Air (including Noise) and Water Pollution, Trees and Forests, Animal Protection and Conservation etc. Along with the laws, there are multiple national and state-level policies in place in India that seek the address environmental issues.

Thus, with such a structured and detailed legal regime that India has on the environment and environmental issues, it cannot be anything but a misconception that one cannot be a financially successful environmental lawyer in this country. It is true that a young and fledgling environmental lawyer, at the onset of his, her or their career, does make less money than, say, a corporate lawyer in a top-tier law firm. Nonetheless, the stigma that there is no money in environmental lawyering is merely a prima facie understanding and does not stand to reason when you dig even a tad deeper.    

Now that we have established that it is possible to have a successful career in environmental lawyering given the plethora of laws and policies and given further the structured outlay of the environmental legal regime of India, let us now explore the avenues through which you can make money in India is an environmental lawyer:

Five ways in which you can flourish in a successful environmental legal practice.  

1. Give compliance-based legal services including consultancy to companies: 

Multiple Regulatory Enforcements are deemed compulsory by the regulatory authorities. For example, the central and various state control boards have emission standards that are to be continually maintained and updated by industrial units in operation. Again, every project, as determinable by the EIA Notification 2006, have to submit a EIA Report and an Environment Management Plan (EMP), along with other compliance documents such as a Conceptual Note, to the clearing authority, which can either by the MoEF & CC or the state environment impact assessment authorities (SEIAA) depending on the nature of the project. It is based on such applications that Environmental Clearance (EC) is granted by such authority. The EC contains certain conditions drawn up in the form of Terms of Reference (ToR) which the project proponents must adhere to and update regular compliance reports of, in absence of which their project operations become bad in law. You may refer to the Office Memorandum on Standardization of EC Conditions under the EIA Notification passed by the MoEF & CC on January 2019 to see how standard EC ToRs look like. Another example of compliance requirements can be found in the Notification passed in November 2018 by the said ministry that tabulates the environmental compliances that are necessary for the local bodies to give occupation/completion certificates to real estate projects. Many of these notifications are fairly new. Many relatively older notifications and laws are also being continually amended. For instance, the CRZ Notification, 2011 had, earlier on in 2019, been replaced by a new notification bearing the same name but with altered rules and structures.

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Thus, companies which are often referred to as Project Proponents and often as User Agencies in environmental regulatory terminology, require a host of compliances in terms of environmental law, for which they are often in need of environmental legal experts. You may track such companies down, send applications and forced applications, network with relevant office bearers of such companies and offer your services. After some initial phase of establishing solidified contacts, you can get one or many nice deals as an environmental lawyer in charge of ensuring that their environmental diligences are met with. This method is bound to bear fruit if you try in all sincerity. So, go ahead, make your day as a successful environmental lawyer through this process. If you do indeed seek to make a career out of environmental legal practice, you will not regret this.  

2. Become empanelled as a state lawyer who represent environmental authorities such as the MoEF & CC:

As we discussed in the previous section, multiple regulatory agencies vis a vis environmental law and administration exists in India. This includes the MoEF & CC, the environment and forest departments of the states, the CPCB, the SPCBs, various environmental protection and conservation authorities such as the Central Groundwater Authority and the National Tiger Conservation Authority and so many more. Cumulatively, they are in charge of the environmental legal regime in India. They all need lawyers. Becoming an empanelled lawyer, or even one whose services are taken on retainership based contracts, with such authorities can be one way to go.

A basic search, as a practicing advocate, would make you figure out how to become a lawyer for such places. Regular visits to the National Green Tribunal for networking and conversations with the different lawyers who appear for such regulatory authorities in matters before the Tribunal is bound to give you ideas on how to facilitate this process and kickstart your career as a hotshot environmental legal eagle.   

3. Begin your career as a junior to a senior advocate who has a regular practice before the NGT:

Here, you take the conventional route. Join a senior advocate’s chamber. However, instead of being attached with a lawyer who practices all kinds of law or civil or criminal laws, focus on being attached with one whose practice is based, if not exclusively, at least significantly with the environmental legal sector. The best place to find such an advocate is the National Green Tribunal.

The NGT has a total of four benches in India – the Southern Zone Bench in Chennai, the Western Zone Bench in Pune, the Central Zone Bench in Bhopal and the Northern and Principal Bench in New Delhi. Many advocates earn their livelihood by practicing before one or more of these benches. If you apply to them and join them as a chamber junior, it can be a good place to begin to learn the ropes on environmental law and practice.

It is true that you will not be able to not make a lot of money at the initial stage of your career if you take this route. However, with time and perseverance, you will be able to develop your own network and clientele, hone your skills and start establishing your independent practice for an enriching and fulfilling career as an environmental lawyer. 

4. Join a prominent environmental NGO as a lawyer:

There are many NGOs in India that operate exclusively in the environment sector. Such NGOs exist at national, state as well as regional levels. Some of the most prominent NGOs in this regard are Indian Council for Enviro-Legal Action, Legal Initiative for Forests and Environment, Samatha Cooperative, Kalpavriksh Foundation, Center for Science and Environment, the Development Alternatives Group, the environmental cell of the Gandhi Peace Foundation, Narmada Bachao Andolan etc. Even prominent international organizations such as the World Wide Fund for Nature and Greenpeace International have their offices in India. A simple online search can yield multiple results in this regard and you can obtain their contact details online.

The reason why such NGOs have thrived is that there are multiple funds and grants both nationally and internationally available in the environmental protection and conservation sector. Almost all such NGOs, especially the bigger ones, either employ lawyers or take services from environmental legal professionals.

You can apply to one or more such NGOs and offer your services as an advocate. With some ambition and industriousness, you can also establish your own NGO to work on legal issues in the environmental sector. The process is simple. All you need is to register your association. You can register it as a trust or a society, or even as a not for profit Company under the Companies Act, 2013. Or you may begin as a voluntary organization and subsequently become an incorporated one. Under the Foreign Contribution (Regulation) Act, 2010 (FCRA), for the first three years, you will only be able to look for funds and grants nationally. After three years of profile building and operation, you can also apply to the Ministry of Home Affairs, Government of India, for certification under the FCRA, and scale up into a big NGO.   

Working as an environmental lawyer with an NGO, or as a founding member of an NGO, can be a lucrative career option – one where you will be able to make a meaningful contribution to the environment and ecosystem and earn a decent living at the same time.

5. Offer legal services including consultation to environmental NGOs:

This is connected with the previous point. However, instead of joining such an environmental NGO as an employee or being a founder of one, you can also become a lawyer offering your services to them. Many NGOs, instead of employing lawyers directly, take services from practicing lawyers on a case to case basis. There lies the trick. You have to visit the NGT on a regular basis and stay in touch with environmental lawyers who are thus roped in on a case to case basis to get an idea of how to make such and similar NGOs approach you to take up their cases and legal concerns.

Here, you need to be tactful. The idea is not to compete with such lawyers but to cooperate and build up a profession based on peer support from similar professionals. With perseverance, this can be accomplished and you can be well on your way to being a successful environmental lawyer in India.    

Thus, the assumption that environmental lawyering does not fetch money in India is incorrect. Of course, you need to be practical and focused. You may not be able to make as much money as a corporate lawyer in the initial phases. However, once you focus your attention and streamline your efforts towards developing a successful career as an environmental lawyer, with persistence and perseverance, you will be able to develop yourself as a highly successful environmental lawyer. For this, other than following one or more of the career-trajectories highlighted above, you need a strong foundational understanding of environmental law and governance system of the country and be well versed with the laws that collectively create the structure of this system.

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Introduction

The disputes arising under International Commercial Contracts can be resolved by means of International Commercial Arbitration. International Commercial Arbitration is an alternative to litigation, and it is governed primarily by the terms previously agreed upon by the contracting parties rather than by national legislation or procedural rules. In most contracts, the contracting parties mention a clause that any dispute arising under the contract will be handled through arbitration rather than any litigation. The contracting parties can also mention the procedural rules, specify the forum and governing law at the time of the contract.[1]

Arbitration in a simple term means to resolve the dispute privately or by mutual consensus or by the mediation of a third person. Arbitration process prevailed at the time of  Greek civilization and under Roman law in the sixth century. Earlier the attitude towards arbitration is not friendly, but in course of time, all businesses try to solve their dispute through arbitration. The reason behind is that the courts are overcrowded with litigants. As per the official report, in India, there is pendency of over ninety crores of cases in nation wise courts. So, solving the disputes through court leads to wastage of time and money and the relief which obtained after long year is not be worth the cost. The legislature and the judiciary try to solve the problem by setting up various tribunals and the forums, but the result remains the same. All tribunals and forums have become overcrowded with the result that they are not able to provide the relief within a proper time.[2]

To overcome this problem the court finds a new method in solving the disputes. The method is entitled to be given the name of Alternative Dispute Resolution (ADR). ADR has various forms such as conciliation, arbitration, mediation, negotiation etc. In all this method, arbitration becomes the dominant form. The involvement and the interference of the court in the arbitration process have been minimized due to which it is faster and less expensive than the judicial resolution of the dispute, and arbitration also avoids hyper legalism and complexity of the judicial proceedings and subsequent appeals. In an international setting, arbitration is a way to assure the parties that there will be a neutral resolution of the dispute and because of this, there is no fear to enter into the judicial system of other party’s homeland.[3]

Arbitration is binding voluntarily alternative dispute resolution process chosen by private parties. The arbitration process is divided into three stages, the first is pre-arbitration stage ( time before the dispute arises), second is during arbitration proceeding and last is the giving of the arbitral award.[4]

Arbitration can be either be “ad hoc” or “institutional”. The terms of the contract determine the type of arbitration. If the contracting parties have set up their own rules for arbitration, then it is known as ad hoc arbitration. In ad hoc arbitration, the arbitrations are conducted independently by the parties, who are also responsible for deciding the number of forums, the number of arbitrators, the rules and procedure that will be followed, and all the other aspects of administering the arbitration. If the contracting parties agreed to have the institution to administer the dispute than it is known as institutional arbitration.[5] The most important international organisation or institution that provides services for arbitration between the parties of a different nationality is the International Chamber of Commerce, headquartered in Paris. Other such organisations are the London Court of Arbitration, American Arbitration Institution, Chamber of Commerce in Zurich, Stockholm, etc.

International Commercial Arbitration is based on United Nations Commission on International Trade Law (UNCITRAL) Model Law which is designed to assist the state in modernizing and reforming arbitral laws as per the need of international commercial arbitration. This model manages all the stages of the arbitral process from the extent of the court intervention, composition and jurisdiction of the arbitral tribunal, arbitration agreement and enforcement of the arbitral award. This model also reflects the key international arbitration practices follow in the different legal or economic system of the world.[6]

Conventions and Treaties

In the past, it has been observed that where multilateral convention and treaties are followed then it is easy to enforce the award as a comparison to the place which followed transnational laws where public policy is made a ground to set aside an award. The situation which is detrimental to the growth of international commercial arbitration is the wide disparity and complexity in the laws and procedures for the enforcement of the award in the different countries.

To overcome from this problem various attempt has been made at various forums to attain unification and certainty in the enforcing of the award for better world trade. With a view to eliminating all the controversial problems, multilateral conventions and treaties and regional arrangements from time to time have shown the positive signals.[7] Some of the important conventions are:

The New York Convention on the Recognition and Enforcement of the Foreign Arbitral Award (1958): this convention shall apply to the recognition and enforcement of the award made in the territory of the state other than the state where recognition and enforcement of the award arising out of the difference between the contracting parties.

European Convention, 1961: this convention applies in European countries where the enforcement of the arbitral award made within the community between the parties of the region. The European Convention is the advancement of the New York Convention regarding the grounds on which the award can be set aside.

Enforcement under UNCITRAL Arbitration Rules, 1976: it deals with the arbitral award and its enforcement which is cover under the article 31 to 37 of UNCITRAL rules. It was preferred to maintain majority rules rather than giving award by the arbitrator alone if no majority could be reached which is followed in Arbitration Rules of International Chamber of Commerce ( article 19 rules. UNCITRAL rules have the power to recognize and give effect to a different system of jurisdiction.

Other conventions and treaties are “I.B.R.D. Convention, 1996, Moscow Convention 1972, Montevideo Treaty (1889), ESCAP Arbitration Rules, 1996, Arbitration Rules of Un/EC, 1996, The UNCITRAL Model Law on International Commercial Arbitration, 1985 etc.”

Grounds for Challenging of Arbitral Awards

Each country has different laws which allow the motions for setting aside the arbitral award. These motions should be introduced in those countries where the award was rendered, and it should not be in violation of the laws of that country. Article 34 of UNCITRAL Model Law (1985) and Article V of the New York Convention set aside the motion against the arbitral award. Before deciding the location for the arbitration as opposed to another, the arbitration must be given some time to investigate the reason, why an award is annulled. After the investigation, the award is taken as final as if it was a decree of the court.

The award can be set aside on various grounds such as the incapacity of the party, subject matter not applicable under the law of arbitration, the invalidity of the agreement, arbitral tribunal was defective in composition and award in conflict with the public policy of the country.

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Public Policy

Public Policy is considered as one of the most important ground commonly used by the parties for setting aside the arbitral award. Public policy also provides the contracting states with a “safety valve” by allowing them to prevent the enforcement of the award which is against their legal system which finds its legal source in article V (2)(b) of the convention for the contracting states. Public Policy remains a highly debated, controversial and complex issue because the national courts take a diverse approach in the context of public policy in international arbitration. The purpose of public policy is the benefit of the parties, but the attitude of the national courts makes this task impossible. This attitude is mostly seen in India where the courts have hampered the growth of the internationally accepted public policy.[8]

The unmistakable job of national courts in international arbitration has been perceived in pretty much every nation, some more than the others. This is on the grounds that arbitration is controlled compliant with national laws and, in like manner, have a cozy association with the national courts. Once the award has been rendered the role of the national court becomes more important in the arbitration process. This is true at the enforcement stage when arbitral award requires statutory conditions for it to be successfully enforced. The national court may refuse to enforce the arbitral award on the grounds specified under Article V of the Convention of the Recognition and Enforcement of the Arbitral Award 1958 also known as New York convention. The New York Convention does not provide any guidance to the national courts as to how the public policy defence should be interpreted. As a result, national courts interpret the public policy provision as per their own understanding. In order to find the solution of this problem International Law Association (ILA)  tried to formulate a universally accepted concept of International Public Policy but failed to do so because of failure to reach consensus as to what should constitute an international public policy.[9] 

Different jurisdictions have a different meaning of Public Policy, mostly it is concluded that award can be set aside if it is not consistent with the fundamental principle of justice, honesty and fairness. That’s why an award can be annulled on the grounds of corruption and lack of integrity.

In most of the modern law jurisdiction, the setting of the award on the grounds of corruption would be considered as a proper ground. The U.S Federal Arbitration Act (FAA) is also clear in this respect. FAA provides that award cannot be enforced if it is the arbitrator who has given the award is corrupt, the award was procured through fraud, corruption or undue influences and it was found that the arbitrator was guilty of misconduct or other kinds of misbehaviour. In English Arbitration Act the award can be set aside if there is serious irregularity affecting the tribunal, proceeding or the award.[10]

Domestic Policy and International Public Policy

In domestic arbitration, the national courts have to apply only domestic public policy as the arbitration is connected to only one nation. Only that national public policy is considered. The case is different in the context of international public policy because here more than one national public policy is relevant. So, in this case, the national courts have to apply the public policy by taking into consideration the international dimensions. Therefore, it is concluded that international public policy consists of those rules of a nation’s domestic public policy that are also applied in an international context.

Substantive Public Policy and Procedural Public Policy

The arbitrator cannot go beyond interpreting the public policy. The award can be against the public policy of substantive or procedural reasons. Substantive public policy goes for the subject matter of the award whereas procedural public policy related to the mode of the process by the matter was adjudicated. So, the principles of morality and justice would be an issue under the substantive public policy. Other principles which infringe the state substantive public policy are the rules serving the state political, social or economic interest.[11]

Investment and Growth

It has been found that public policy provision in International Commercial Arbitration affects the investment and growth of the economy. It is evident when most of the foreign parties lose the case when the other party challenge the award on the grounds of violation of public policy.

Such kinds of cases are mostly seen in India when domestic party losing case from the foreign party and then the domestic party files a case in national courts for challenging the award. This thing does not find a rationale for the foreign companies and they try to avoid in doing any future transaction with the same company or in the company in India. This ultimately restricts the foreign company transaction or trade with domestic companies in India.

Conclusion

After the above discussion, it is true that the public policy is an unruly horse which can lead you astray, it is not impossible to tame this unruly horse.

There are various method which can be implemented for the proper use of public policy. First, more initiative like ILA needs to be formulated and enforced it in a proper manner. So that more countries can come together and have a consensus on the parameters of the public policy. Second, the institutions like Institute of Chamber of Commerce and all other organizations must provide education to the arbitrator regarding arbitration. Only through this matter, one can understand the concept and intricacies of the arbitration. Last, both the parties and the arbitrators must know the repercussions of using public policy in a case.

Endnotes

[1] Susan Gualtier, International Commercial Arbitration, HAUSER GLOBAL LAW SCHOOL PROGRAMME, NEW YORK UNIVERSITY SCHOOL OF LAW,( Nov/Dec 2014,10:00AM), www.nyulawglobal.org/globalex/International_Commercial

[2]Meghas, International Commercial Arbitration, LEGAL SERVICE INDIA http://www.legalservicesindia.com/article/2196/International-Commercial-Arbitration.html

[3]Francis J. Higgins et al. Pitfalls in International Commercial Arbitration, The Business Lawyer, April 1980, at 1035,1036

[4]Krishna Singhania & Alok Vajpeyi, Assignment in Arbitration: Scope and Issues in India , IndiaCorpLaw (Feb,20,2019,11:00AM),https://indiacorplaw.in/2019/02/assignment-arbitration-scope-issues-india.html

[5] Ibid.

[6] UNCITRAL Model Law on International Commercial Arbitration (1985), with amendments as adopted in 2006, UNCITRAL, http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/1985Model_arbitration.html

[7] M.S. Rawat, International Commercial Arbitration and Transnational Public Policy, Journal of ILI, Jan-Mar 2007, at 60, 60-61

[8] Sameer Sattar, Enforcement of Arbitral Awards and Public Policy: Same Concept, Different Approach? , https://www.ela.law/Templates/media/files/Misc%20Documents/Enforcement-of-Arbitral-Awards-Public-Policy.pdf

[9] Ibid.

[10] Serap Zuvin & Mehmet Ali Akgun, Turkey: Public Policy Defence and Arbitration in International Commercial Law, MONDAQ (Dec,16,2005,11:00 04 AM), http://www.mondaq.com/turkey/x/452312/Contract+Law/Public+Policy+Defence+And+Arbitration+In+International+Commercial+Law .

[11] Supra note 10.

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.

Do you know what is roadwork? I am not talking about a Stephen King novel or people in orange helmets closing down a road to pour concrete into potholes.

I am talking about what a boxer or an MMA fighter will call “roadwork”.

How do you think a boxer or a fighter prepares for a match? I guess you are imagining them hitting a punching bag for hours. Or maybe what they show in movies – punching and ducking punches in a boxing ring again and again.

Sure they do those things. However, what they do most, is “roadwork”.

To win a modern boxing match, or even a UFC fight, more important than the strength of your punches is your cardio-vascular ability to keep moving really fast throughout all the round so that you can circle your opponent continuously, looking for weak moments or a guard being down while you avoid getting hit. The faster you are in the ring, higher is your chance of scoring more points or even a knock-out win.

So no, boxers do not spend all their time practicing punches or doing practice fights in the ring. While those are important, they spend a lot of time doing road work. 

In the past, roadwork primarily consisted of running – like you may have seen Sylvester Stallone running every morning in the movie Rocky. However, over time, purely running on the road has been replaced by high-intensity interval training and anaerobic exercises. Roadwork is the boxer’s highway to win, it allows him to circle the opponent in the ring incessantly and thrown hundreds of combination punches during the fight, without losing steam.

If you want to know which boxer will win, you just need to see what is the roadwork they do.

Average boxers want to spend all their time in the ring and hate roadwork. The great boxers are forged through incredible roadwork.

Here is what the great Joe Frazier has to say:

“You can map out a fight plan or a life plan, but when the action starts, it may not go the way you planned, and you’re down to your reflexes – that means your [preparation:]. That’s where your roadwork shows. If you cheated on that in the dark of the morning, well, you’re going to get found out now, under the bright lights.”

–  Joe Frazier (undisputed heavyweight world champion in professional boxing for 5 years in the 70s)

It is hard to get up to do your roadwork at 5 am when you have been sleeping in silk pajamas. 

– Marvin Hagler (undisputed middleweight champion from 1980 to 1987)

It is no different in chess. 

You cannot become great at chess by playing chess matches all day. You need to play some practice matches, but more time has to be spent working on specific situations. Chess champions practice thousands of chess drills. They learn and commit to memory what moves to play in thousands of situations, making them difficult to beat! They have to work on strengthening tactical decisions and positional play by playing with a computer again and again. They have to study hundreds of end games. How do they do this? While playing with other players?

Not really. 

Roadwork for chess is basically solving thousands of chess puzzles, for hours and hours. Reminds me of cardio training for boxers!

In case you want to be a good cricketer, can you become good by playing directly in matches?  A match is not an ideal condition for practice.

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You have to practice for hours in the net. If you are a batsman, you have to learn to play different deliveries and perfect different shots. You have to refine yourself even when you are already good. One stroke at a time. One delivery at a time. It is a long process. It takes massive endurance to do this without the adrenaline pumping, exciting, do-or-die situations of cricket matches.

That is road work for cricket. It involves sweat and blood. It means pushing yourself when your body is screaming in pain and wants to give up.

Roadwork is the price of greatness.

What is your roadwork?

In your line of work, what builds up that endurance and ability to win in the ring, under the spotlight? 

For me, it is getting up every day and doing the work that I have to do – no matter what. Endless hours of meeting, always planning and reviewing the progress of each plan, training my team every single day to become better, and making time to learn what I do not already know. My roadwork is bouncing back after every disappointment to pursue my dream by doing the most mundane and boring work with courage and commitment. My roadwork is talking to my users every day, and being open to criticism and feedback even when I do not agree with it. My roadwork is to speak and solicit help from thousands of lawyers and being ready to hear nine no to hear one yes.

I have no doubt that I am building the greatest legal education company on the planet because my roadwork is gruelling, and my team is on it too. 

What is your roadwork?

Does it involve drafting agreements and getting feedback on how to improve your drafting and negotiation skills?

Does it involve master provisions of law and practical aspects of a certain area of law?

Would you like to talk to us about what roadwork you are doing and how you can take it to the next level? Reach out to us.

Each of our courses is built on the concept of making you do the roadwork, under our guidance and supervision, so you can become a champion. Check out the weekly exercises section of these courses in which we are currently taking admission, and you will know what I am talking about:

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Introduction 

As we all know that India has drawn a lot of legislation from England. Similarly, in the case of Companies law, India enacted company law based upon the company law enacted in England. The three phases which influenced the Company legislations may be divided as i) Colonization era; ii) Period after World War II & iii) the Opening up of Indian markets in the year 1990.

Legislation Enacted

In the year 1850, the first Company enactment for the registration of the joint-stock company was introduced in India. This enactment as mentioned before was based upon the English Companies Act, 1844.

Later in the year 1857, the concept of limited liability was recognised in the companies legislation but the said limited liability was not extended to the banking company. The concept of limited liability into the Companies Act was introduced earlier in the English Companies Act of 1856. But by the year of 1858, the concept of limited liability was extended to banking company even in India.

In the year 1866 Companies Act was yet again passed for consolidating and amending the laws relating to incorporation, regulation and winding up of trading companies and other associations. This Act was based upon the Companies Act 1862 of England. This Act was recast in the year 1882 and was in use until 1913.

In the year 1913 another Indian Companies Act was enacted based upon English Companies Consolidation Act, 1908. Companies Act of 1913 was amended in the year 1914, 1915, 1920, 1926, 1930 and 1932. But the major amendment to the Companies Act of 1913 who was made in the year 1936 this amendment was based upon the English Companies Act. 1929. The act of 1913 regulated the Indian business company until 1956.

By the end of 1950, Bhabha committee was set up under the chairmanship of H. C. Bhabha. For the difference of Indian Companies Act with reference to the development of Indian trade and industry. 

The committee submitted its report on 1952, this report of Bhabha committee was accepted Companies (Amendment) Act, 1956. This legislation was made keeping in mind the English legislation of Companies Act in 1948.

A little more trivia about the origin of the Act of 1956

The period of the Second World War and the post-war years witnessed an upsurge of Industrial and commercial activity on an unprecedented scale in India and large profits were made by businessmen through incorporated companies. The Government of India took up the revision of Company Law immediately after the termination of the last war. Two company lawyers— one from Bombay and the other from Madras— were successively appointed to advise Government on the broad lines on which, the Indian Companies Act, 1913, should be revised and recast in the light of the experience gained during the war years. Their reports were considered by Government and a memorandum embodying its tentative views was circulated towards the end of 1949 for eliciting an opinion. 

On 28th October 1950, the Government of India appointed a Committee of twelve members representing various interests under the chairmanship of Shri H. C. Bhabha, to go into the entire question of the revision of the Companies Act, with particular significance to the development of trade and industry of India. This Committee, popularly known as the Bhabha Committee, submitted its report in March, 1952, recommending comprehensive changes in the Companies Act of 1913. The report of the Bhabha Committee was again the subject of discussion and comment by Chambers of Commerce, Trade associations, professional bodies, leading industrialists, shareholders and representatives of labour. The Bill, which eventually emerged as the Companies Act, 1956, was introduced in Parliament on 2nd September 1953. IT was a comprehensive and consolidating as well as amending piece of legislation. The Bill was referred to a Joint Committee of both Houses of Parliament in May, 1954. The Joint Committee submitted its report in May, 1955, making some material amendments to the Bill. The Bill, as amended by the Joint Committee, underwent some further amendments In Parliament and was passed in November, 1955. The new Companies Act (I of 1956) came into force from 1st April, 1956.

Major Changes brought forth by the Companies Act 1956 viz-a-viz the Companies Act, 1931

1. Promotion and growth of Companies;
2. Capital structure of the Companies;
3. Company meetings and procedures;
4. Company accounts and its presentation & powers and duties of the auditors of the company;
5.  Inspection and investigations of the affairs of the Company;
6. The constitution of the Board of Directors, Powers and functions of directors, Managing Directors and Managers; and 
7. Administration of the Company Law.

The Amendments in the Companies Act, 1956

As any other legislation various amendments were made to the Companies Act 1956 as mentioned below:

Timeline of Amendments

Opening of the market gates to the Globe-1990 

The Era of liberalisation, privatization and globalisation saw the anachronistic Companies legislation made in time of closed market and hence inadequate to handle the global entry. This non-conducive legislation would have obstructed the Indian Corporate Sector. In pursuance to this necessity the Companies Bill, 1993 was formed but was later withdrawn. The Depositories Act, 1996 was introduced in India and later a working Group was constituted to rewrite the Companies Act, 1956. In pursuance to above made effort the Companies Bill, 1997 was introduced in Rajya Sabha on August 14, 1997 in order to replace the prior legislation. 

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The President of India promulgated the Companies (Amendment) Ordinance, 1998 on October 31, 1998. But this promulgated the Companies (Amendment) Ordinance, 1998 was soon replaced by the Companies (Amendment) Act, 1999. 

The objectives of the Companies (Amendment) Act, 1999:

1. To surge the capital market by boosting the morale of the National business houses.
2. Fostering the FITs and Foreign Direct Investments in the country. 

The changes brought by the Companies (Amendment) Act, 1999 are:

• A facility was introduced to allow the Corporate Sector to buy-back company’s own share;
• Provisions relating to investments and loans were liberalised and rationalised;
• Requirement of prior approval of the Central Government on investment decisions was done away with and companies were allowed to issue “sweat equity” in lieu of the intellectual property;
• The compliance of the Indian Accounting Standard was made mandatory and the National Committee on Accounting Standard was also incorporated;
• The benefit of the investors was looked into by setting up “Investor Education and Protection Fund”;
• Introduction of the nomination to shareholders, debenture holders, etc.

Later, the Companies (Amendment) Act, 2000 was enacted, which was followed by the Companies (Amendment) Act, 2001 wherein the Section 77A was introduced in relation to buy-back of the shares. This amendment allowed the Board of Directors to buy-back the shares upto 10% of the paid-up capital and free reserves provided not more than one such buu-back is made during the period of 365 days. Then, the Companies (Amendment) Act, 2002 was enacted which was followed by the Companies (Second Amendment) Act, 2002. The first amendment introduced the setting-up and regulation of the Cooperatives as a body corporate under the Companies Act, 1956 to be called ‘Producer companies’. The Second Amendment was to expedite the winding-up process of the companies to facilitate rehabilitation of the sick companies and protection of workers interest. 

The Companies (Amendment) Act, 2006, was brought into force on 1.11.2006 wherein it introduced the Director Identification Number (DIN) and also introduced electronic filing of various returns and forms.

The New Enactment of the New Society

The Companies Act, 2013 replaced the Companies Act, 1956. The legislators introduced ideas of the likes of:

• Corporate Social Responsibility (CSR)
• Class action suits 
• Fixed term for the Independent Directors
• The provision of raising money from the public was made little stringent
• Prohibition on insider trading by company directors or key managerial personnel by declaring such activities as a criminal offence
• It permits shareholder agreements providing for the ‘Right of First Offer’ or ‘Right of first Refusal’ even in the case of Public Companies

The Companies (Amendment) Act, 2015: It received the presidential assent on May, 2015 and became operate on 29th May, 2015. It is designed to address the issues of the stakeholders such as Chartered Accountants and other professionals.

Key Amendments brought in by the Companies (Amendment) Act, 2015 may be explained as follows:

No minimum Paid-up share Capital

No minimum paid-up share Capital requirements will now apply for incorporating private as well as Public Companies in India.

Relaxation in relation to related party transaction

In the case of related party transactions which requires stake-holders approval relaxation has been given wherein earlier required special resolution has been replaced by the ordinary resolution. 

Inspection of the resolution filed with the Registrar

This Act has limited public access of such resolutions relating mainly to the strategic business matters. Such documents will no longer be available for the public to review or permitted to take copy of.

Common Seal Optional

Under the Act of 2013 it was required to affix common seal on certain documents but, now after the Act of 2015, the use of the common Seal has been made optional although the common seal is one of the integral characteristics of a Company. 

Violations of Acceptance of Deposits

Companies Act of 2013 provisions in relation to the Acceptance/ renewal/ repayment of deposits. However no specific penalty prescribed for the new compliance with the relevant provision i.e. Section 13 and Section 76. 

A new Section 76A has been introduced for these non-compliances. The defaulting company will be liable for a minimum fine of INR 1 crore and maximum amount of INR 100 crore in addition to the amount of deposit or part thereof alongwith interest. 

Dividend 

The Companies Act, 2015 has introduced a proviso which states that a company must set-off the losses and depreciation carried over from past years against the profits of the company before declaring dividend for a financial year. 

The Companies (Amendment) Act, 2017

The Companies (Amendment) Bill, 2016 was intended to be passed by the legislature, but after referring it to the Committee this Bill went through a lot of corrections and metamorphosed into The Companies (Amendment) Bill, 2017 which was then passed as the Companies (Amendment) Act, 2017. The salient features of the amendments brought by this Act are: 

1. Synergy with SEBI and RBI Rules: For the first time, several provisions have been amended to align the Act with various rules and regulations of the SEBI (Security Exchange Board of India) and the RBI (Reserve Bank of India). For example, Sections 194 and 195 of the Act, which was dealing with the offence of insider trading and forward dealing, have now been omitted since the SEBI regulations were succinct to cover all. 
2. The instances of such frauds. Further disclosures to be made in the prospectus have also been aligned with the SEBI’s power to regulate IPOs (Initial Public Offering). The definition of ‘debenture’ has been amended to permit RBI to disqualify certain instruments as debentures.
3. Proportionality of penalties: The quantum of penalty will now be levied taking into consideration the size of the company, nature of business, injury to public interest, nature and gravity of default, repetition of default, etc which is one of the most appreciated amendments. Two new provisions regarding the determining of the level of punishment have been freshly introduced and lesser penalties for one person companies and small companies were inserted. Provisions for small companies and penal vigour has been reduced.
4. Placement process made easier in Private Sector: The placement process is rationalised by doing away separate offer letter details to be kept in the records of the Company and hence reducing the number of filings to Registrar. The company is not allowed to use money from private placement unless allotment made and the return of the same filed with the registrar  To make sure that an investors are informed, the disclosures are made under Explanatory Statement as provided in Rule 13(2)(d) of Companies (Share Capital and Debenture) Rules, 2014, embodied in the Private Placement Application Form. Change in definition of private placement is proposed to umbrella all securities offers and invitations other than rights. The Companies would be allowed to make an offer of multiple security instruments simultaneously.
5. Standards for Independent Director : Section 149 of the Act deals with the qualifications and disqualifications of independent directors. Sub-Section (6) provides for various disqualifications for becoming an independent director, one of which is, such a person having “pecuniary relationship” with “the company, its holding, subsidiary or associate company, or their promoters, or directors”. The amendment clarified that ‘pecuniary relationship’ excluded the remuneration of director having transaction not exceeding 10% of his total income or such amount as may be prescribed.

The Companies (Amendment) Act, 2019

The Companies (Amendment) Act, 2019 received the assent of the President on the 31st July, 2019. While introducing the Bill in the Lok Sabha, the Hon’ble Finance and Corporate Affairs Minister, Nirmala Sitharaman said, “the Bill seeks to ensure more accountability and better enforcement to strengthen the corporate governance norms and compliance management in corporate sector as enshrined in the Companies Act, 2013”. 

In order to review the Companies Act and to gain better compliance, the Government of India constituted a Committee in July, 2018. The said Committee, after taking the opinions of several stakeholders of the Company, submitted its Report in August, 2018. The Committee recommended that serious offences must face rigour of law but technical mistake be given in-house adjudication for speedy redressal. Accordingly, proposal to amend certain provisions of the Companies Act, 2013 was made, however, in view of the urgency, the Companies (Amendment) Ordinance, 2018 was promulgated on November, 2018. To replace the aforesaid Ordinance, the Amendment Bill was introduced in Lok Sabha and passed, but Bill was not taken up in Rajya Sabha.Therefore, to continue the effect of prior ordinance the President promulgated the Companies (Amendment) Ordinance, 2019 on the 12th day of January, 2019 and the Companies (Amendment) Second Ordinance, 2019 on the 21stday of February, 2019. Then the Companies (Amendment) Bill, 2019 was passed by both the houses of parliament and became the law. 

The Major reforms undertaken by the Ordinance of 2018 and 2019 include the following:

1. Re-categorisation of offences which are in the category of compoundable offences to an in-house adjudication framework. However, no change has been made for any of the non-compoundable offences. 
2. Ensuring compliance of the default made and prescribing deterrent penalties in case of repeated defaults. 
3. Delegation and De-clogging the NCLT by: 
   1. Enlarging the jurisdiction of Regional Director (“RD”) by increasing the pecuniary limits up to which compounding of offences under Section 441 of the Act can take place.
   2. Vesting in the Central Government the power to approve the alteration in the financial year of a company under Section 2(41).
   3. Vesting the Central Government the power to approve cases of conversion of public companies into private companies so as to reduce the burden on the government and developing the sector. 
   4. Other reforms include re-introduction of declaration of commencement of business provision; greater accountability with respect to filing documents related to creation, modification and satisfaction of charges; non-maintenance of registered office to trigger de-registration process; holding of directorships beyond permissible limits to trigger disqualification of such directors. 

Conclusion

The Amendment brought to the legislation were earlier reactive in nature for instance the major amendments were the reaction to the global phenomenon of i) Colonization era; ii) Period after World War II & iii) the Opening up of Indian markets in the year 1990. But the recent Amendments are more Proactive in nature and seeks to increase the efficacy of the Legislation with respect to the dynamics of the Society. 

References

1. The English Companies Act, 1844
2. The Indian Companies Act, 1913
3. Companies Act of 1913.
4. The Depositories Act, 1996
5. Bhabha Committee Report, 1952 
6. The Companies (Amendment) Act, 2001
7. The Companies (Share Capital and Debenture) Rules, 2014
8. The Companies (Amendment) Act, 2015
9. The Companies (Amendment) Act, 2017
10. The Committee Report. 2018
11. The Companies (Amendment) Act, 2019

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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AIBE: Mock test 6, Solve the Mock Test to strengthen your Preparation for All India Bar Exam and increase your chances of clearing the paper.

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Mock Test 6 

1.) Doctrine of election is based on the foundation that a person taking the benefit of an instrument must 

A.) not bear the burden 

B.) burden is not the subject of election 

C.) burden is the subject of election 

D.) bear the burden 

2.) frost v knight is a leading case on 

A.) s.32 

B.) s.33 

C.) s.34 

D.) s.35 

3.) which among the following is a law based on equity 

A.) indian contract act 1872 

B.) indian penal code 1863 

C.) indian partnership act 1932 

D.) specific relief act 1963 

4.) which section of specific relief act describes temporary injunction 

A.) 45 

B.) 41 

C.) 37 

D.) 36 

5.) the maintenance amount which can be transferred is 

A.) future maintenance 

B.) right to future maintenance 

C.) arrears of maintenance upto a certain date 

D.) none of the above 

6.) the maximum period during which a property can be tied up is 

A.) only 15 years 

B.) one or more life or lives in being at the date of transfer and the minority of an unborn person 

C.) during the lifetime of the transferor and the minority period of an unborn person 

D.) none of the above 

7.) whoever causes bodily pain disease or infirmity to any person is said to have inflicted……. On victim 

A.) grievous hurt 

B.) hurt 

C.) assault 

D.) none of the above 

8.) personation at election is an offence under s…… of IPC 

A.) 124A 

B.) 121 A 

C.) 153 B 

D.) 171 D 

9.) raman having found a key of raju’s house which raju had lost, commits a house trespass by entering raju’s house after opening the door with that key. Raman has comitted the offence of 

A.) house trespass 

B.) criminal trespass 

C.) house breaking 

D.) none of the above 

10.) ……. Defined crime as a violation of public rights and duties to the whole community considered as community 

A.) Blackstone 

B.) justice Bhagwati 

C.) V.R Krishna Iyer 

D.) Lord Heward 

11.) Who among the following is not a public servant? 

A.) liquidator 

B.) a civil judge 

C.) secratory of cooperative society 

D.) none of the above 

12.) The sampoorn grameen rozgar yojna was launched in 2001 and was implemented through 

A.) labour offices 

B.) government 

C.) panchayati raj institution 

D.) all of the above 

13.) Right to freedom to acquire, hold and dispose of property is abolished by 

A.) 44th amendment act 1978 

B.) 43rd amendment act 1976 

C.) 50th amendment act 1950 

D.) 1st amendment act 1951 

14.) Which of the following is covered under the definition of state 

A.) The Indian statistical institute 

B.) Indian counsel of agricultural research 

C.) Sainik school society 

D.) NCERT 

15.) National conservation strategy and policy statement on environment and development is a major environmental and development is a major environmental policy in india and it was passed in the year 

A.) 1988 

B.) 1982 

C.) 1992 

D.) 1990 

16.) …….. Of environment protection act defines environment 

A.) 2(a) 

B.) 3(a) 

C.) 1(a) 

D.) 11(a) 

17.) Polluter pays principle means 

A.) a polluter shall bear the cost of pollution as the polluter is responsible for pollution 

B.) polluter shall not necessarily bear the cost as he might not be responsible for the pollution 

C.) a polluter may bear the cost of pollution as the polluter is responsible for pollution 

D.) none of the above 

18.) Pollution is a civil wrong, if a tort committed against the community as a whole, a person who is guilty of causing pollution has to pay damages for restoration of the environment he also has to pay 

A.) Exemplary damages 

B.) Nominal damages 

C.) Real damages 

D.) None of the above 

19.) Section 89 of CPC was incorporated through CPC amended act of ……. Which is the prominent provision that discusses about the jurisdiction of civil courts in applying alternate dispute resolution mechanisms 

A.) 1989 

B.) 1999 

C.) 1988 

D.) 2009 

20.) In case the Supreme Court held that Part I of the Arbitration and Conciliation Act would equally apply to international commercial arbitration held outside India, unless any or all provisions have been excluded by agreement between the parties 

A.) Bhatia international vs bulk trading S.A 

B.) United India Inc Company ltd vs associated transport corp. ltd. 

C.) Hakam singh vs gammon ltd. 

D.) Ajmera brothers vs. suraj naresh kumar jain 

21.) Establishment of permanent lok adalat is envisaged under s….. Of the legal service authority act1987 

A.) 22B 

B.) 22A 

C.) 22(1) 

D.) 22 

22.) What are the remedies open to the party aggrieved in a suit of contract 

A.) Specific performance and injunction 

B.) Specific performance and damages 

C.) Specific performance only 

D.) All of above 

23.) A’ resides at delhi and ‘B’ at Agra. B borrows Rs. 20,00 from A at benares and passes a promisory note to A payble at benaras. B fails to repay the loan . A may sue B at 

A.) Benaras or agra 

B.) Benares only 

C.) Agra only 

D.) Benares, agra, delhi 

24.) The general principle of waiver that provides that failure to raise objection in the court of the first instance and at the earliest opportunity shall prevent the defendant from raising such objection at a subsequent stage and the judgement would not be vitiated on the ground of absence of territorial or pecuniary jurisdiction is reflected in which provision of CPC 

A.) s.15 

B.) s.16 

C.) s.51 

D.) s.21 

25.) Act of court can do no wrong to any person. Which concept relates to this ideology 

A.) precept 

B.) caveat 

C.) restitution 

D.) injunction 

26.) As per the provision of Crpc the word inspection used in section 93(1)© refers to 

A.) things or documents 

B.) documents only 

C.) locality and place 

D.) none of the above 

27.) Statement recorded during an investigation under s 161 of crpc can be used during trial for 

A.) corroborating the witness 

B.) contradicting the witness 

C.) both A and B 

D.) neither A nor B 

28.) if an accused is charged of a major offence but is not found guilty, he can be convicted of minor offence, if the fact established indicates that such minor offence has been committed, it was held in which case 

A.) sangarabonia sreenu v state of A.P 

B.) state of Himachal Pradesh vs tara dutta 

C.) shamsher singh vs state of punjab 

D.) nalini vs state of tamil nadu 

29.) Ex dolo malo oritur is 

A.) an action arose only when a right infringes 

B.) an action could not prevent a legal right 

C.) no action on an immoral act 

D.) none of the above 

30.) Quifacit per aliumfacit per se means 

A.) act of an agent is the act of principal 

B.) act of agent is not the act of principal 

C.) principal and agent are liable jointly 

D.) agent must not act in contravention of the act of principal 

31.) The concept of privity of contract was rejected in 

A.) winterbottom vs wright 

B.) donoghue vs stevenson 

C.) longmeid vs holiday 

D.) heaven vs pender 

32.) …… is observed as the world consumer rights day 

A.) 15t march 

B.) 16th march 

C.) 12th march 

D.) 11th march 

33.) Accountability of medical professional and the need for qualitative change in the attitude of the medical service provided by the hospitals was emphasized by the Supreme Court in which of the following cases 

A.) bhatia international vs bulk trading S.A 

B.) indian medical association vs VP shantha and ors. 

C.) maneka gandhi vs UOI 

D.) lucknow development authority vs MK Gupta 

34.) Renewal of driving licenses is envisaged under s… of motor vehicle act1988 

A.) 20 

B.) 21 

C.) 22 

D.) 15 

35.) S. 82 of IPC is an illustration on 

A.) presumption of fact 

B.) presumption of law 

C.) presumption of fact and law both 

D.) none of the above 

36.) Meaning of nemo moriturus praesumitur mentire 

A.) a dying man can never speak truth 

B.) a dying man can never speak false 

C.) a dying man can speak truth 

D.) a dying man may not speak false 

37.) If a court lower to the sessions court tries a murder case that court is called as- 

A.) coram sub judice 

B.) coram non judice 

C.) coram non sub judice 

D.) coram judice 

38.) Rashtriya swasthya bima yojna is mainly meant to serve the needs of 

A.) organised workers 

B.) unorganised workers 

C.) unrecognised sector workers belonging to BPL category and their family members 

D.) All of the above 

39.) Equal pay for equal work for both men and women is proclaimed under ….. Of the constitution of india 

A.) Art. 39(a) 

B.) Art. 39(d) 

C.) Art.39(b) 

D.) Art.39(c)

40.) Where any workman is suspended by the employer pending investigation or inquiry into complaints or charges of misconduct against him the employer shall pay to such workman subsistence allowance. This provision was inserted in the industrial employment Act 1946 in which year 

A.) 1992 

B.) 1982 

C.) 2009 

D.) 2010 

41.) ……. Was a leading case on the point as to whether the employer has a right to deduct wages unilaterally and without holding an inquiry for the period the employees go on strike or resort to go slow 

A.) bank of india vs TS kelawala and ors. 

B.) Randhir singh vs UOI 

C.) kamani metals and alloys ltd. Vs their workmen 

D.) workmen vs reptakos brett and co ltd. 

42.) Under the Industrial Disputes Act, if the employer terminates the services of an individual workman any dispute any dispute arising out of such termination shall be deemed to be 

A.) industrial dispute 

B.) individual dispute 

C.) both industrial and individual dispute 

D.) none of the above 

43.) Gloucstershire grammar school case is a leading case to explain 

A.) volenti non fit injuria 

B.) injuria non fit volenti 

C.) damnum sine injuria 

D.) injuria sine damnum 

44.) Main characteristic of the Code of Criminal Procedure is 

A.) empowerment of executive megistrate 

B.) separation of legislature from executive 

C.) separation of executive from judiciary 

D.) separation of revenue work from executive 

45.) Object of investigation is 

A.) To punish accused 

B.) To acquit accused 

C.) To collect evidence 

D.) To convict accused 

46.) Any dispute relating to possession of immovable property is decided by 

A.) Judicial Magistrate 

B.) Executive Magistrate 

C.) Either by Judicial or Executive Magistrate 

D.) Neither by Judicial or Executive Magistrate 

47.) A conditional order for removal of public nuisance under section 133 Cr. P.C. may be passed by – 

A.) The District Magistrate only 

B.) The Sub-Divisional Magistrate only 

C.) The Executive Magistrate only 

D.) Any of above Magistrates 

48.) In reference of information relating to commission of cognizable offence which of following statement is not correct? – 

A.) it may be given to the officer incharge of police station 

B.) It is reduced to writing by or under direction of officer incharge of police station 

C.) Information reduced to writing is to be signed by person giving it 

D.) Copy of information cannot be given free of cost to informant – 

49.) Procedure for summary trail is provided in which section of Cr. P.C.? 

A.) Section 251 to Section 260 

B.) Section 238 to Section 250 

C.) Section 260 to Section 265 

D.) Section 255 to Section 265 

50.) When a person who would otherwise be competent, to compound an offence under section 320 of Cr. P.C. is dead, then? – 

A.) Offence cannot be compounded 

B.) Offence can be compounded by an eye witness 

C.) Offence can be compounded by legal representative of such person without consent of the Court 

D.) Legal representative of such person can compound offence with consent of the Court 

51.) When can a trial court release an accused on bail under section 389(3) of Cr. P.C. after conviction? 

A.) Where accused is on bail, and imprisonment is not exceeding 3 years 

B.) Where accused is on bail, and imprisonment is not exceeding 5 years 

C.) Where accused is on bail, and imprisonment is not exceeding 7 years 

D.) Where offence is exclusively bailable whether accused is on bail or not 

52.) In proceeding under section 107 of the Code of Criminal Procedure an Executive Magistrate may require to execute a bond for keeping peace for such period not exceeding…as Magistrate thinks fit. 

A.) 1 year 

B.) 2 years 

C.) 3 years 

D.) 6 months 

53.) Point out the incorrect statement 

A.) In a cognizable offence any police officer may without any order from a Magistrate and without a warrant arrest any person 

B.) A private person may arrest or cause to be arrested any person committing a cognizable offence 

C.) An Executive Magistrate may arrest offender when any offence is committed in his presence and within his jurisdiction 

D.) none of the above 

54.) Rabindra Kumar Pal and Dara Singh v Republic of India, a famous case coming under S.30 of Evidence Act is also well known as 

A.) Graham Staines Murder Case 

B.) Graham Bells Murder Case 

C.) Graham Street’s Murder Case 

D.) Graham Stoits Murder Case 

55.) Statement by a person who is dead is a relevant fact under ____ of the Indian Evidence Act 

A.) Section 32 

B.) Section 11 

C.) Section 34 

D.) Section 45 

56.) A chargesheet filed under Section 173 of Cr. P.C. is an example of __ 

A.) Public document 

B.) Private document 

C.) Patent document 

D.) Latent Document 

57.) Procedure of investigation of criminal cases under the Criminal Procedure Code is contained in the chapter __ 

A.) XI 

B.) XII 

C.) X 

D.) IX 

58.) Identify the correct order in which the following law making treaties are concluded – (1) The Vienna Convention on Consular Relations (2) The General Agreement on Trade and Tarrifs (3) The Declaration of Paris 

A.) 1, 3, 2 

B.) 3, 2, 1 

C.) 2, 1, 3 

D.) 1, 2, 3 

59.) Which one of the following doctrine requires that the parties to a treaty are bound to observe its terms in good faith? 

A.) The Drago Doctrine 

B.) Right of Asylum 

C.) Doctrine of Equality 

D.) Pacta Sunt Servanta 

60.) General Assembly adopted the definition of the word aggression through 

A.) Resolution 3314 (XXIX), 1974 

B.) Resolution 3312 (XXXIX), 1973 

C.) Resolution 2213, 1982 

D.) None of the above 

61.) The admission of a new political entity into the United Nations can be termed as 

A.) Express recognition 

B.) Conditional recognition 

C.) Collective recognition 

D.) De-facto recognition 

62.) “A state is and becomes and international person through recognition only and exclusively.” Who stated this? 

A.) L. Oppenheim 

B.) Hobbes 

C.) Fenwick 

D.) Starke 

63.) The United Nations Committee on International Trade Law (UNCITRAL) adopted the model law on e-commerce on 

A.) 1997 

B.) 1998 

C.) 1996 

D.) 2013 

64.) Section 3 of Information Technology Act, 2000 which was originally “Digital Signature” was renamed as _____ in ITAA 2008 

A.) Digital Signature and Electronic Signature 

B.) Digital Signature and e-Signature 

C.) Digital and Electronic Signature 

D.) None of the above 

65.) Which of the following are digital signature certifying authorities in India 

A.) M/s. Safescrypt 

B.) M/s. NCERT 

C.) M/s. MTL 

D.) All of the above 

66.) Section 43 of the IT Act deals with 

A.) Criminal liability 

B.) Civil liability 

C.) Both of the above 

D.) None of the above 

67.) “When a body corporate is negligent in implementing reasonable security practices and thereby causes wrongful loss or gain to any person, such body corporate shall be liable to pay damages by way of compensation to the person so affected.” Which section of the ITAA, 2008 envisages so? 

A.) 43 

B.) 43A 

C.) 43B 

D.) 43C 

68.) R obtained a sum of Rs. 50,000/- from D by putting D in fear of death. Here R commits 

A.) Extortion 

B.) Cheating 

C.) Mischief 

D.) Robbery 

69.) Period of limitation for execution of the order of maintenance is ____ from the date on which it becomes due. 

A.) 1 year 

B.) 5 years 

C.) 9 years 

D.) 15 years 

70.) The jural correlative of immunity is 

A.) Power 

B.) Disability 

C.) No claim 

D.) Claim 

71.) Who defines “eternal law as the divine order or will of God which requires the preservation of natural order and forbids the breach of it” 

A.) Ambrose 

B.) Augustine 

C.) Gregory 

D.) All of the above 

72.) “Government, even in its best state, is but a necessary evil; in its worst state, an intolerable one”. Who stated so? 

A.) Thomas Paine 

B.) Gregory Peck 

C.) Jefferson 

D.) Dicey 

73.) The Constitution of India has recognized the concept of tribunals as instruments of quasi-judicial administrative adjudication 

A.) Article 39A and 39B 

B.) Article 323A and 323B 

C.) Article 368 

D.) Article 202A and 202B 

74.) Nemo judex in causa sua meaning no man can be a judge in his own cause was first stated by ____ in Dr. Graham’s Case 

A.) Lord Grey 

B.) Lord Heward 

C.) Lord Coke 

D.) Lord Moulton 

75.) General power of the Bar Council of India to make rules is envisaged under which Section of the Advocates Act, 1961 

A.) Sec 48 

B.) Sec 49 

C.) Sec II-2 

D.) Sec IV A 

76.) Seven lamps of advocacy is attributable to 

A.) Justice Abbot Parry 

B.) Justice Heward 

C.) Justice Bhagwati 

D.) Justice Grey 

77.) Which Section of the Advocates Act, 1961 speaks of disciplinary powers of the Bar Council of India? 

A.) 35 

B.) 37 

C.) 36 

D.) 39 

78.) Section __ of the Advocates Act speaks of constitution of Legal Aid Committees 

A.) 9 

B.) 10 

C.) 9A 

D.) 10A 

79.) Who among the following is not empowered to tender pardon to an ‘accomplice’ under 

the Code of Criminal Procedure 

A.) Metropolitan magistrate 

B.) Chief Judicial Magistrate 

C.) a Magistrate of the First Class 

D.) Magistrate of Second Class 

80.) A complaint case is commenced by 

A.) Filing a complaint before the Executive Magistrate 

B.) Writing a letter to the Superintendent of Police or the Commissioner, as the case may 

C.) Filing an FIR 

D.) Filing a complaint before the Judicial Magistrate 

81.) A conditional order for removal of public nuisance under the Code of Criminal Procedure may be passed by 

A.) District Magistrate 

B.) Executive Magistrate specially empowered 

C.) Sub-Divisional magistrate 

D.) Any of the above authorities 

82.) Who among the following is not empowered to tender pardon to accomplice under the code of criminal procedure 

A.) Metropolitan Magistrate 

B.) Magistrate of Second Class 

C.) Chief Judicial Magistrate 

D.) a Magistrate of the First 

83.) Section 89 of the Civil Procedure Code was incorporated through the Civil Procedure Code Amendment Act of ____ which is the prominent provision that discusses about the jurisdiction of civil courts in applying Alternate Dispute Redressal Mechanisms 

A.) 1999 

B.) 1989 

C.) 1988 

D.) 2009 

84.) Which one of the following is not essential for an offence? 

A.) Intention 

B.) Motive 

C.) Prohibited Act 

D.) Punishment for act 

85.) In which of the following mens rea has been considered to be an essential element of an offence? 

A.) Srinivasmal Barolia Vs. Emperor 

B.) R. Vs. Tolsen 

C.) Nathulal Vs. State of Madhya Pradesh 

D.) All of the above 

86.) Which one of the following is not a valuable security? 

A.) A postal receipt for an insured parcel 

B.) A rent note 

C.) A promissory note 

D.) Added of divoree 

87.) Common Intention means– 

A.) Similar intention 

B.) Same intention 

C.) Sharing of intention by all persons 

D.) Common plans 

88.) Nothing is an offence which is done by a child of – 

A.) Eight years 

B.) Ten years 

C.) Seven years 

D.) Twelve years 

89.) What punishment may be awarded to the person, whose act is covered under general exceptions? 

A.) No punishment 

B.) Half of the punishment prescribed for that offence 

C.) One-fourth of the punishment prescribed for offences 

D.) Depends upon the discretion of court 

90.) A makes an attempt to pick pocket of B by thrusting his hand into B’s pocket. A fails in the attempt in consequence of B’s having nothing in his pocket. A is guilty of – 

A.) No offence 

B.) Theft 

C.) Attempt of theft 

D.) Using Criminal Force 

91.) Making preparation to commit dacoity is punishable in the Indian Penal Code 1860 under– 

A.) Section 393 

B.) Section 395 

C.) Section 398 

D.) Section 399 

92.) A does sexual intercourse with a widow below 16 years of age with her consent– 

A.) A has not committed Rape 

B.) A has committed Adultery 

C.) A has committed Rape with B 

D.) Nothing above is correct 

93.) Section 2 of Indian Contract Act provides 

A.) Proposal 

B.) Consideration 

C.) Agreement 

D.) Void Contract 

94.) Section 6 of The Indian Contract Act 1872 provides 

A.) Revocation how made 

B.) Revocation of proposal 

C.) Communication of proposal 

D.) Nothing above is correct 

95.) An agreement enforceable at law is a 

A.) Enforceable acceptance 

B.) Accepted offer 

C.) Approved promise 

D.) Contract 

96.) Every promise and every set of promises, forming the consideration for each other, is an 

A.) Agreement 

B.) Contract 

C.) Offer 

D.) Acceptance 

97.) In a valid contract, what comes first 

A.) enforceability 

B.) acceptance 

C.) promise 

D.) proposal 

98.) Tender is 

A.) an offer 

B.) an invitation to offer 

C.) a counter offer 

D.) a promise 

99.) In India, the express provisions of the Contract Act applies to 

A.) Hindus. 

B.) Females. 

C.) Businessman. 

D.) All of the above 

100.) ____ is a one-sided contract in which only one party has to perform his promise or obligation. 

A.) Void contract 

B.) Illegal agreement 

C.) Unilateral contract 

D.) Bilateral contract 

Answers 

1.) D 2.) D 3.) B 4.) D 5.) C 6.) C 7.) B 8.) D 9.) A 10.) A 11.) D 12.) C 13.) A 14.) A 15.) C 16.) A 17.) A 18.) A 19.) B 20.) A 21.) A 22.) D 23.) C 24.) D 25.) A 26.) C 27.) A 28.) B 29.) D 30.) A 31.) B 32.) A 33.) B 34.) D 35.) B 36.) B 37.) B 38.) C 39.) B 40.) B 41.) A 42.) A 43.) C 44.) C 45.) C 46.) B 47.) D 48.) D 49.) C 50.) D 51.) A 52.) A 53.) D 54.) A 55.) A 56.) A 57.) B 58.) D 59.) D 60.) A 61.) C 62.) A 63.) C 64.) A 65.) A 66.) D 67.) B 68.) A 69.) A 70.) A 71.) B 72.) A 73.) B 74.) B 75.) B 76.) A 77.) C 78.) C 79.) D 80.) D 81.) D 82.) B 83.) A 84.) B 85.) D 86.) D 87.) D 88.) C 89.) A 90.) C 91.) D 92.) C 93.) A 94.) A 95.) D 96.) A 97.) D 98.) B 99.) D 100.) C 

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This article has been written by Deeksha Kathayat, a student of BLS.LLB, 5th Year.

If you can recall almost one year ago on 10th September 2018 Bharat Bandh was organized by the Congress party and others to protest against the hike in petrol prices. I could recollect the incidents of the previous day the usual unnecessary texting which took place in my college group turned a bit political as soon as the message swayed all over the social media that Congress is organizing a bandh. Well, I thought as a law student and as an alert and responsible citizen, many will be against it but then, unfortunately, it turned out that everyone was for it and that confused me a lot and as I emerged in my thoughts about the fact that how is it possible? I know for sure that I have read somewhere that bandh is illegal or not allowed in India then suddenly a message popped up and I got the answer of my previous question why is everyone in the group so happy, well the reason was, there will be a holiday if this bandh becomes a huge success….my instant reaction was I texted my labour law teacher and asked her about the holiday ( well, I know you all must be thinking that I would have texted to ask about the legality of the bandh but then no I texted to ask for the holiday). But the instant reply of my teacher was NO!!! College does not support this, and you know right bandh is illegal …… Well, I got my answer…
This question led me to dig out more about the issue, and I ended up writing an article on this topic, the reason being not many are aware of the serious impact it has on our country not only economically but also socially and legally. Many are unaware of the views of the courts in this matter? What are the rights and duties of citizens? What are the penalties that might be imposed on those supporting these hooligans?
BANDH to say it in easiest language means general strike or general shutdown of almost everything. Not to be negative about it, but the word literally means disrupting all the services so that the place, state or the country where the bandh is declared should come to a halt. All the services like transport, shops, schools’ colleges, offices and sometimes even medical shops are forced to shut down.

Image may be NSFW.
Clik here to view.When I tried to find the origin of this concept, I was amazed that this concept did not originate in the USA, or the UK well, obviously why will such strong economies of the world will support such activities that will disrupt their nation? THE origin is still not sure but then all that can be conferred from the data available is that this is the most common phenomenon of south Asian countries that too mostly in Nepal and India.
The reason why there were frequent bandhs organized in Nepal was people wanted to show their anger for the political instability prevailing at that time but little did they know that bandh will further intensify the instability?
AND in INDIA there have been series of bandhs since independence. Communities and the political parties are the ones who organize the bandhs to protest for issues like the one that recently took place that is a hike in price or different communities mostly asking for reservations. Political The parties under the guise of the public welfare, they tend to destabilize the mechanism of the country so that the government can be criticized for the instability and the destabilization. The political parties and organizations that call for bandh, for the cause of public, should realize that they are, in effect, harming the public itself…
And the most hilarious is when we try to tell the leaders of the parties about the demerits and the evil impacts it has, the leaders instead start giving irrelevant examples from the past that even Mahatma Gandhi organized bandhs and hartals, civil disobedience movements. Like great thinkers have said you take only that part of anything that best suits your ego and reasoning and forgets the rest. These leaders while citing Gandhi forgets the most important fact that even Gandhi withdrew his movements, strikes and hartals as soon as it got violent or was losing its purpose but then they will not understand this because if they follow that how will their ego to harm the opposition party’s reputation and a dying urge of emerging as a messiah of people will be satisfied?
WELL, this was about the political parties but what about the hooligans who go for the support of these bands… You agree or not with me, but the main reason for the success of all the bandhs and hartals is that common people are scared…they are scared what if they go for their work and the karyakarta or such goons are bashing people for not supporting the bandhs? They are scared that what if their cars, their vehicle will be smashed by those people loving karyakartas? What if they try to board the train and goons don’t allow the train to move? What if they try to board buses and the buses are stoned and they might get injured or even killed?
As a result of this people avoid going out and the bandh becomes successful.

The constitutionality of Bandhs

The Supreme court of India have realised the evil impacts of the Bandh and have declared bandh illegal and unconstitutional.
People who are afraid and who do not support such type of activities should realize that they have their set of fundamental rights and there are many laws and not to forget the most important one the Indian Penal Code which criminalizes restraint, force, intimidation during bandhs and even hartals.
Supreme court and various high courts have made it crystal clear that through various verdicts that the bandh interferes with the fundamental discretion and liberty of citizens and causes a national loss in numerous ways.
The fundamental rights of citizens have to be given paramount place and it cannot be observed as ignoble to the rights of an individual or some sections of the society. The main reason of the court disliking towards bandh is that they very well understand that under the guise of the bandh, hartal and strike NO one has the right to cause inconvenience to other not observing or to cause apprehension of threat to life, liberty and property most importantly government or public property.