This article is written by Medha Tiwari, student of Shri Ramswaroop Memorial University, Lucknow. This article is an effort to simplify the concept of transfer of property for the readers.

Introduction

Meaning of Transfer of Property

Section 5 of the Transfer of Property Act, 1882 defines the term transfer of property. According to this section, transfer of property means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself and other living persons. The phrase “living person” includes a company or association or body of individuals, whether incorporated or not, but nothing in this section shall affect any law for the time being in force relating to or by companies, associations or bodies of individuals.

The word property in the Act has been used in one of the following senses:

(i) Tangible material things like house.

(ii) Rights which are exercised over material things like the right to sell or make a gift of things.

(iii) Rights which are not exercised over any material such as the right to repayment of a debt.

The expression transfer of property implies various meanings. One sense maybe transfers of things such as the sale of a house. Another sense maybe transfer of one or more of the rights in a thing such as mortgage of a house or transfer of a debt.

Thus, if a new title has not been created or some interest has not been transferred in favour of the Transferee, then the transfer of property cannot take effect.

An analysis of section 5 helps us understand the meaning of the phrase, “transfer of property”. Thus, transfer of property means an act which may take effect in the present or future. The property in question must be in existence at the time the transfer takes place. Moreover, the conveyance of the property must be from one living person to another.

What may be Transferred

Section 6 of the Transfer of Property Act, 1882 discusses the property which may be transferred. The section states that property of any kind may be transferred. However, Clauses (a) to (i) of section 6 mention the properties which cannot be transferred.

Clause (a) describes spes successionis cannot be transferred. This clause states that the transfer of a bare chance of a person to get a property is prohibited under this section. For example, Arun expecting that Chandini, his aunt, who had no issues, would bequeath her house worth Rs. 50,000 transfers it to Bhushan. The transfer is invalid as it is a mere matter of chance of receiving the property on the part of Arun. Thus, it is invalid.

Clause (b) mentions that the right of re-entry cannot be transferred. The right to re-entry implies a right to resume possession of the land which has been given to someone else for a certain time. The section mentions that the right of re-entry cannot be transferred by itself apart from the land. For example, A grants a lease of a plot of land to B with the condition that if shall build upon it, he would re-enter — transfers to C his right of re-entering in case of breach of the covenant not to build. The transfer is invalid.

Clause (c) mentions that easement cannot be transferred. An easement is a right to use or restrict the use of land of another in some way. For example, the right of way or right of light cannot be transferred.

Clause (d) mentions that an interest restricted in its enjoyment of himself cannot be transferred. For instance, if a house is lent to a man for his personal use, he cannot transfer his right of enjoyment to another.

Clause (dd) restricts the transfer of the right to maintenance. Such a right cannot be transferred as such right is for the personal benefit of the concerned person.

Clause (e) provides that mere right to sue cannot be transferred. The prohibition has been imposed as the right to sue is a right which is personal and exclusive to the aggrieved party. For example, a person cannot transfer his right to sue for the damages suffered by him due to breach of contract by the other party.

Clause (f) forbids the transfer of public offices. The philosophy behind the prohibition is that such a transfer may be opposed to public policy in general. A person is eligible to hold a public office on the grounds of his personal qualities, and such qualities cannot be transferred. Thus, the transfer of public offices is prohibited under this section.

Clause (g) of section 6 provides that pensions cannot be transferred. Pensions allowed to military and civil pensioners of government and political pensions cannot be transferred. In simpler terms, a pension may be understood as any periodical allowance which may be granted in regard to any right of office but only on account of the past services offered by the pensioner.

Clause (h) of this section is titled as nature of nature. This clause prohibits transfer which will oppose the interest affected thereby. The transfer is also forbidden if the object or consideration of the transfer is unlawful. Moreover, a transfer by a person who is legally disqualified from being a transferee is also forbidden.

Clause (i) of section 6 was inserted by the Amendment Act of 1885. The clause declares that certain interests are untransferable and inalienable. For example, a farmer of an estate, in respect of which default has been made in paying the revenue, cannot assign his interest in the holding.

Thus, section 6 containing clauses (a) to (i) specifically mention that certain things cannot be transferred. Such a transfer if undertaken would be invalid in the eyes of the law in India.

Person competent to Transfer

Section 7 enumerates the concept of competency of persons who may be allowed to transfer property. According to this section, a person is allowed to transfer property if he satisfies two conditions. The first condition is that the person must be competent to enter into contracts with other persons. The second condition is that the person who is willing to transfer property must have title to the property or authority to transfer it if he is not the real owner of the property.

An important point to be noted in this regard is the conditions mentioned in section 11 of the Indian Contract Act, which specifies the category of persons who may be competent to transfer. In the section, it is stated that the person must have attained majority, he must be of sound mind, and he must not be disqualified to enter into contracts by any other law applicable in India.

Operation of Transfer

Section 8 of the Transfer of Property Act expresses the concept of operation of the transfer. The first paragraph states that the courts must, in the absence of a contrary intention, hold that the transferor indented to transfer all his interests and legal incidents in the property. Where the property transferred island, all the legal incidents such as easements, rents and profits and things attached to earth shall be transferred. Where the property to be transferred is a house, easements, the rents accruing after the transfer, locks, keys, bars, doors etc. shall also be transferred. Where the property to be transferred is machinery attached to the earth, in such a case, movable parts of the machinery shall also be transferred. In cases where the debt is transferred, the legal incident that is securities shall also be transferred. Where the property is money or other property which may yield some kind of income, then the interest or income accruing after the transfer takes effect shall also be transferred. In other words, the property and the legal incidents attached to the property shall be transferred as part of the same transaction. 

Oral Transfer

Section 9 of the transfer of property act, 1882 elaborates the concept of oral transfer. It mentions that property may be transferred orally in cases wherein it has not been expressly mentioned that the property must be by law transferred in writing. Writing is necessary in the following cases:

(i) Sale of immovable property having a value of more than rupees hundred. (Provided under section 54 of the Transfer of Property Act, 1882)

(ii) Sale or reversion of other intangible things. (Provided under section 54 of the Transfer of Property Act, 1882)

(iii) Simple mortgage. (Provided under section 59 of the Transfer of Property Act, 1882)

(iv) All other mortgages are securing rupees hundred or more. (Provided under section 59 of the Transfer of Property Act, 1882)

(v) Leases of immovable property from year to year or for a term exceeding one year or reserving a yearly rent. (Provided under section 107 of the Transfer of Property Act, 1882 )

(vi) Exchange. (Provided under section 108 of the Transfer of Property Act, 1882)

(vii) Gift of immovable property. (Provided under section 123 of the Transfer of Property Act, 1882)

(viii) Transfer of actionable claim.(Provided under section 130 of the Transfer of Property Act, 1882)

Condition Restraining Alienation

The section 10 of the Transfer of Property Act states that where a property is transferred subject to a condition absolutely restraining the Transferee from parting with his interest in the property, the condition is void. For instance, if A transfers his property to B with the condition that B shall never resell it. The condition imposed is void and B may sell or not sell as he wishes to do. The philosophy behind this section is that a right of transfer cannot be separated from the ownership of the property. The rule that a condition of absolute restraint is void is based on the principle of a public policy allowing free circulation and disposal of property.

Illustrations

A transferred a field to B with the condition that if B sold it, he must sell it to C and to nobody else. The condition was held to be void as the name of the person who alone was permitted to purchase might be so selected as to render it reasonably certain that he would not buy the property at all.

Restrictions Repugnant to Interest Created

Section 11 of the Transfer of Property Act, 1882 is titled as restriction repugnant to interest created. The section states that any condition restraining the lawful enjoyment of the property which is transferred absolutely is void. Any such condition if imposed shall be considered non-existent and any such transfer will operate as if no such condition was imposed in the first place. In other words, if a man makes a transfer of property absolutely, he shall not be allowed to impose upon the Transferee any condition which imposes a restriction on the right of the Transferee to dispose or enjoy the property as per his own will. The section refers to absolute interest only. Absolute interest implies that:

(i) There should be a transfer of property.

(ii) An interest in the property in favour of Transferee should be created.

(iii) The term of transfer should direct that such interest shall be applied for enjoyment in a particular manner only.

A careful reading of section 11 helps us understand that the second paragraph of the section states the exception that has been provided by the Act. The second paragraph states that,

“Where any such direction has been made in respect of one piece of immovable property for the purpose of securing the beneficial enjoyment of another piece of such property, nothing in this section shall be deemed to affect any right which the transferor may have to enforce such direction or any remedy which he may have in respect of a breach thereof.”

Thus the general rule provided under section 11 is subject to the above-mentioned exception. In simpler words, the transferor may impose condition restraining the enjoyment of land if such restriction is for the benefit of the adjoining land. 

Illustrations

A makes a gift of the house to B on a condition that the gift will be forfeited if B does not reside in it. The Condition is valid for the gift is not an absolute gift. The condition would have been void if the gift was an absolute gift.

Conclusion 

Hence, it can now be clearly understood that the transfer of property is a multi dimensional concept. The person transferring the property and the person receiving the property become a part of the transaction owing to their rights and legal obligations enshrined in the Transfer of Property Act, 1882.

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 Geethika Satti, Third-year BA LLB student, ILS Law College, Pune.

Introduction

Educational institutions are often perceived as providing service of the highest order to the society, by creating good citizens for a better tomorrow. But in today’s era of globalization and fast-paced Economy, Neo-Entrepreneurs have capitalized on the fact that the youth of the world requires quality education and a good skill set for survival, and they are willing to invest hefty amounts of money for the same. This is where the corporate world of mergers, cartels and market abuses apply to the mushrooming businesses in the Educational Sector.

Competition Law regulates the activities of those offering services or goods, for the benefit of the consumers.  The crucial objectives of the Competition Act, 2002 include protection of the interests of the consumers as well as to promote and sustain competition in the markets. Effective competition is the key to efficiency and productivity in businesses, including those in the Educational sector[1]. Healthy competition encourages innovation, cost and production efficiency and enhanced consumer satisfaction because of which businesses strive to keep ahead of their competitors.  However, the stiff competition also creates incentives for unethical traders to ‘cut corners’ to beat their rivals, and this is where the Competition Authorities such as the Competition Commission of India (CCI) must step up the investigation, advocacy and enforcement procedures, the need for which is highlighted by this article.

The Education Sector as an Economic Market

For the purposes of this article, “Educational Sector”, when referred to in the sense of an Economic Market, means Educational institutions offering degrees, diplomas, skill/based certificate courses; both through the online and the offline mode. [2]

India’s education sector offers great prospects, with about 29 % of India’s population being between the age group of 0-14 years. Due to this, India’s higher education sector is expected to increase to US$ 35.03 billion by 2025. 

As of December 2018, internet penetration in India had reached 46.13 per cent. Increasing internet penetration will help in the dissemination of educational services. Also, India has over 250 million school going students, the largest in the world. It also has one of the most massive networks of higher education institutions in the world. Number of colleges and universities in India reached 39,050 and 903, respectively in 2017-18. [3]

As far as the investment by private players in the education sector is concerned, the sector has received cumulative FDI worth US$ 2.47 billion up to March 2019. Indian education sector witnessed 18 merger and acquisition deals worth US$ 49 million in 2017.

All these statistics indicate that there is a boom in the educational sector of India and hence, there is wide scope and necessity for the application of Competition law in this field. 

How can the Education Sector be made effectively competitive? a few problems and possibilities:

Since it is apparent that each of the markets related to the Educational Sector are competitive in nature, it is not surprising that there have been a few Antitrust concerns which have been raised by with the competition authorities, be it India or other common law countries. Further, we will analyse probable competition issues through relevant case law or by illustrating certain conditions which might fall into the ambit of Anti-competitive activities:

• Peer-Group institutions sharing information:

Many Academic institutions collaborate formally or informally. Formally, they could be academic consortiums or associations; informally, they could be characterized by periodic gatherings of administrators from similarly-situated institutions. The competition authorities and competition policies recognize the fact that these organizations might have been formed for the collective benefit of the consumers by setting standards and sharing best practices. In such cases, anti-trust concerns could arise only when there is evidence of lack of an independent decision- making amongst the members of the association or if there appears to be some type of collaborative measure which would hurt the end-consumers.

Article 101 of the TFEU (Treaty of the Functioning of the European Union) prohibits collusion amongst undertakings, which might have an “appreciable” or harmful effect on the competition amongst the member-states. While there has not been a case on Educational Institutions under EU law yet, the Office of Fair Trading (the UK’s competition Authority, OFT) already found that private schools had established a cartel. The schools had exchanged confidential price information over an extended period of time and were thus fined with £10,000 each for ‘participating in an agreement and/or concerted practice having as its object the prevention, restriction or distortion of competition in the relevant markets for the provision of educational services’.[4] It was held by the OFT that their actions were in violation of section 2(1) of the Competition Act, 1998.

In India, such an agreement would fall under the ambit of Horizontal Anti-Competitive Agreements under section 3(3) of the Competition Act, 2002 and is declared to be an anti-competitive agreement under section 3(1), provided that there is an Appreciable Adverse effect on Competition (AAEC) within India.

• Jointly Establishing Admissions Protocols:

There are many agreements or even establishments formed by universities or colleges to collectively hold their admission procedures. Such agreements or conventions govern when applications are received, common collection of fees for administering entrance tests, collectively holding counselling rounds, etc. On the face of it, these agreements don’t arouse Anti-trust suspicions, as they help streamline the admission procedures for the students by consolidating the application and exam dates for multiple institutions.  however, in recent days, such agreements have been subject to scrutiny, as they display elements of Horizontal Anti-Competitive agreements.

In India, An NGO called iJustice, A public Interest Law Initiative of the Centre for Civil society, filed information under Section 19(1)(a) of the Competition Act, 2002, against the CLAT (Common Law Admission Test) and its Convenors. iJustice alleged that the 14 law schools that jointly held the annual CLAT admissions test to National Law Schools, were able to consistently increase examination fees from Rs 3,000 to Rs 4,000, and hike the “pre-admission advance deposit” pending admission from Rs 50,000 to Rs 1 lakh, at their own convenience.

However, the CCI decided it was unable to investigate the allegation because the CLAT core committee was not an “enterprise” under section 2(h) of the Competition Act but merely a memorandum of understanding (MOU), contractual agreement or “merely an arrangement” between the 14 colleges, which was not sufficient to constitute a “person” within the meaning of the Act.[5] But the CCI could have looked into the definition of “Horizontal Anticompetitive Agreement”, as under section 3(3) of the Competition Act, 2002, and could have discussed the case in the light of the same to bring out the instance of Anti- Competitive behaviour in this case.

• Commercial Activities in the Ancillary Markets:

Education is a very complex economic good and involves a lot of complementary goods which are required for effectively imbibing the main service. Most of the times, the price of the Main service, i.e. the teaching and the research activities, are dependent on the quality of the ancillary goods/supplementary goods and services. There is a high possibility that such agreements could be made by Educational Institutions with dealers of such ancillary goods such as books, uniforms, etc., to restrict competing institutions from gaining access to quality supplementary goods. There have been instances where Educational Institutions such as schools have attempted to exploit the consumers through Exclusive Supply Agreements and Tying and Bundling agreements[6]. Such conduct results in Tying Arrangements or a wide variety of Vertical Anti-Competitive conduct, which are prohibited under section 3(4) of the Competition Act, 2002 in India.

In the United States, in the case of Sunshine Books, Ltd. v. Temple University, the plaintiff, was the owner of a bookstore that sold student textbooks from trailers parked on the street near the University bookstore. He complained that the University bookstore’s one-week “manager’s special” sale which offered about 50 undergraduate book titles at 15% off the retail price , showed an attempt by Temple University to monopolize the sale of undergraduate course textbooks to students at the University by means of a predatory pricing scheme, in violation of the provisions of the US’s Sherman Act[7]. Temple University, to defend itself, moved the court for summary judgment on the grounds that its discounted prices were above average variable cost and, therefore, were presumptively not predatory. The trial court granted the motion for summary judgment but the appellate court reversed and remanded the case for factual determination with respect to issues relating to pricing and costs.[8]

Click Above

• Merger (Combination) Control:

The words combination and merger can be used interchangeably. The Competition Act, 2002 defines different types of Mergers or Amalgamations which can be classified as Combinations, in Section 5 of the Act.

Broadly, combination under the Act means acquisition of control, shares, voting rights or assets, acquisition of control by a person over an enterprise where such person has direct or indirect control over another enterprise engaged in competing businesses, and mergers and amalgamations between or amongst enterprises when the combining parties exceed the thresholds set in the Act. The thresholds are specified in the Act in terms of assets or turnover in India and abroad. [9]The CCI has the power to permit or even disallow the mergers which could have an adverse effect on the Education sector. This is because mergers between powerful players have the capability to create monopolies in the market.

There have been no cases in this aspect in the Indian Scenario. However, The OFT of UK has dealt with two mergers in the sector already[10]. In both cases, there were no enforcement activities, as the market shares of the colleges in both cases were too low to impact the relevant markets. The cases illustrate, though, that Educational Institutions have not only been regarded as undertakings, but have also been investigated and, in future cases, mergers might be prohibited.

There are many other possibilities of Anti-competitive conduct by Educational organizations, such as Abusing of dominant position in the relevant market and imposing predatory pricing, Exploitation of Intellectual property rights by institutions in terms of research,[11] etc., which are some of the possibilities wherein future Anti-trust action could arise. 

The Way Ahead:  

• Rules and Regulations: There are scanty rules and regulations released by the CCI as well as The Ministry of Corporate affairs related to Competition Law, which are industry-specific. There should be more work in this aspect.
• Suo Motu Action: The CCI should exercise its powers and should check the Education Sector for Anti-competitive behaviour and conduct investigations on its own accord.
• Advocacy: CCI should create awareness amongst the masses and the stakeholders regarding the practice of compliance to Anti-Trust laws and assisting the Commission whenever required, as prevention is always better than a cure. 

Endnotes 

[1] Fels, A. (1998). The impact of competition policy and law on higher education in Australia. In: AUSTRALASIAN ASSOCIATION FOR INSTITUTIONAL RESEARCH 1998 INTERNATIONAL CONFERENCE. [online] Australian Competition & Consumer Commission. Available at: https://www.accc.gov.au/system/files/The%20Impact%20of%20Competition%20Policy%20and%20Law%20on%20Higher%20Education%20in%20Australia.pdf [Accessed 30 Aug. 2019].

[2] However, wherever these terms might be used in case laws, each of these types of markets would be considered a separate “Relevant product market” as defined under section 2(t) of the Competition Act, 2002.

[3] www.ibef.org. (2017). Education Sector in India. [online] Available at: https://www.ibef.org/archives/detail/b3ZlcnZpZXcmMzc2MjUmMTA1Ng== [Accessed 30 Aug. 2019].

[4] Gideon, A. (2012). Higher Education Institutions and EU Competition Law. The Competition Law Review, [online] 8(2), pp.169-184. Available at: http://file:///C:/Users/91788/Downloads/SSRN-id2120017.pdf [Accessed 30 Aug. 2019].

[5] www.legallyindia.com. (2014). CCI: CLAT convenors immune from anti-trust scrutiny for unilateral fee-hikes. [online] Available at: https://www.legallyindia.com/pre-law/cci-clat-convenors-immune-from-anti-trust-scrutiny-for-unilateral-fee-hikes-20140917-5062 [Accessed 30 Aug. 2019].

[6] Umar, M. (2017). Fee hike in private schools: Ambiguous regulation of fees is making education a privilege. [online] www.firstpost.com. Available at: https://www.firstpost.com/india/fee-hike-in-private-schools-ambiguous-regulation-of-fees-is-making-education-a-privilege-3543715.html [Accessed 30 Aug. 2019].

[7] Section 2, Sherman Act, 1890

[8] Zimbroff, J., Suryanarayan, S. and Scott, T. (2019). ANTITRUST ISSUES AFFECTING COLLEGES AND UNIVERSITIES. National Association of College and University Attorneys NACUANOTES, [online] 13(3). Available at: https://www.princeton.edu/ogc/resources-1/Antitrust-Issues-Affecting-Colleges-and-Universities.pdf [Accessed 30 Aug. 2019].

[9] cci.gov.in. (2019). Competition Act, 2002 – provisions related to Combinations. [online] Available at: https://www.cci.gov.in/sites/default/files/advocacy_booklet_document/combination.pdf [Accessed 30 Aug. 2019].

[10] The merger between City College Manchester and the Manchester College of Arts and Technology and merger concerned the University of Manchester, the Victoria University of Manchester and the University of Manchester Institute of Science and Technology. See IBID 5.

[11] For more, see NAUCA, IBID 9.

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 Shubhangi Sharma, a 5th-year student of BA LLB in Lloyd Law College, Greater Noida. The article discusses the Patent law in India.

Meaning of patent

A patent is an exclusive right granted by the Government to the inventor to exclude others to use, make and sell an invention is a specific period of time. A patent is also available for improvement in their previous Invention. The main motto to enact patent law is to encourage inventors to contribute more in their field by awarding them exclusive rights for their inventions. In modern terms, the patent is usually referred to as the right granted to an inventor for his Invention of any new, useful, non-obvious process, machine, article of manufacture, or composition of matter. The word “patent” is referred from a Latin term “patere” which means “to lay open,” i.e. to make available for public inspection. There are three basic tests for any invention to be patentable:

• Firstly, the invention must be novel, meaning thereby that the Invention must not be in existence. 
• Secondly, the Invention must be non- obvious, i.e. the Invention must be a significant improvement to the previous one; mere change in technology will not give the right of the patent to the inventor. 
• Thirdly, the invention must be useful in a bonafide manner, meaning thereby that the Invention must not be solely used in any illegal work and is useful to the world in a bonafide manner.

An invention considered as new if, on the date of filing the application, any such invention is not known to the public in any form, i.e. oral, writing, or any other form. Anything shall not be termed as inventive if such a thing is already known to the public domain. The patent has a limited term of 20 years, which is counted from the date of filing of the patent application. A patent is a territorial right. Thus it can only be applied in the country where it has been granted. A patent is a territorial right. Thus it can only be applied in the country where it has been granted. Therefore, any legal action against infringement or infringement of patent rights can only be taken in that country. To obtain patent protection in different countries, each country must apply for a patent. The Patent Cooperation Treaty (PCT) provides a way to file an international patent application in which a patent can be filed through a single patent application in a large number of countries. However, the PCT of a patent remains discretionary of the individual patent office only after the application is filed.

Under the Indian patent law, a patent can be obtained only for an invention which is new and useful. The invention must relate to the machine, article or substance produced by a manufacturer, or the process of manufacture of an article. A patent may also be obtained for innovation of an article or of a process of manufacture. In respect to medicine or drug and certain classes of chemicals, no patent is granted for the substance itself even if it is new, but the process of manufacturing and substance is patentable. The application for a patent must be true and the first inventor or the person who has derived title from him, the right to apply for a patent being assignable.

Some inventions cannot be patented. In the European Patent Convention (EPC) law there is the list of non-patentable subject-matter which includes methods of medical treatment or diagnosis, and new plant or animal varieties. Further information on such fields can be obtained from a patent attorney. Nor many patents be granted for inventions whose exploitation would be contrary to public order or morality (obvious examples being land-mines or letter-bombs).The following are not regarded as inventions, discoveries, innovations, scientific theories and mathematical methods, aesthetic creations, such as art or literature works or art of writing, schemes, rules and methods for performing mental acts, playing games or doing business, presentations of information, computer software. 

History of Patent

The first step of the patent in India was Act VI of 1856. The main objective of the legislation was to encourage the respective inventions of new and useful manufactures and to induce inventors to reveal their inventions and make available for public. The Act was repealed by Act IX of 1857 as it had been enacted without the approval of the British Crown. Fresh legislation was enacted for granting ‘exclusive privileges’ was introduced in 1859 as Act XV of 1859. This legislation undergoes specific modifications of the previous legislation, namely, grant of exclusive privileges to useful inventions only, an extension of priority period from 6 months to 12 months. The Act excluded importers from the definition of an inventor. The Act was then amended in 1872, 1883 and 1888.

The Indian Patent and Design Act, 1911 repealed all previous acts. The Patents Act 1970, along with the Patent Rules 1972, came into force on 20 April 1972, replacing the Indian Patent and Design Act 1911. The Patent Act is basically based on the recommendations of the report Justice Ann. The Ayyangar Committee headed by Rajagopala Iyengar. One of the recommendations was the allowance of process patents in relation to inventions related to drugs, drugs, food and chemicals. Again The Patents Act, 1970 was amended by the Patents (Amendment) Act, 2005 regarding extending product patents in all areas of technology including food, medicine, chemicals and microorganisms. Following the amendment, provisions relating to exclusive marketing rights (EMR) have been repealed, and a provision has been introduced to enable the grant of compulsory licenses. Provisions related to pre-grant and anti-post protests have also been introduced.

What can be patented?

Sections 3 and 4 of the Indian Patents Act, 1970 clearly mentioned the exclusions regarding what can be patented in India. There are certain criteria which have to be fulfilled to obtain a patent in India. They are:

• Patent subject:

The most important consideration is to determine whether the Invention relates to a patent subject matter. Sections 3 and 4 of the Patents Act list non-patentable subject matter. Unless the Invention comes under any provision of Section 3 or 4, it means that it consists of a subject for a patent.

• Novelty:

Innovation is an important criterion in determining the patent potential of an invention. Under Section 2(l) of the Patent Act, a novelty or new Invention is defined as “no invention or technology published in any document before the date of filing of a patent application, anywhere in the country or the world”. The complete specification, that is, the subject matter has not fallen into the public domain or is not part of state of the art”.

Simply, the novelty requirement basically states that an invention that should never have been published in the public domain. It must be the newest which have no same or similar prior arts.

• Inventive steps or non-clarity:

Under Section 2(ja) of the Patents Act, an inventive step is defined as “the characteristic of an invention that involves technological advancement or is of economic importance or both, as compared to existing knowledge, and invention not obvious to a person skilled in the art.” This means that the invention should not be obvious to a person skilled in the same field where the invention is concerned. It should not be inventive and obvious for a person skilled in the same field.

• Capable of industrial application:

Industrial applicability is defined in Section 2 (ac) of the Patents Act as “the invention is capable of being made or used in an industry”. This basically means that the Invention cannot exist in the abstract. It must be capable of being applied in any industry, which means that it must have practical utility in respect of patent.

These are statutory criteria for the patent of an invention. In addition, other important criteria for obtaining a patent is the disclosure of a competent patent. A competent patent disclosure means a patent draft specification must adequately disclose the Invention, so as to enable a person skilled in the same field related to carrying out the Invention with undue efforts.

Rights and obligations of the patentee

Rights of Patentee

• Right to exploit patent: A patentee has the exclusive right to make use, exercise, sell or distribute the patented article or substance in India, or to use or exercise the method or process if the patent is for a person. This right can be exercised either by the patentee himself or by his agent or licensees. The patentee’s rights are exercisable only during the term of the patent. 
• Right to grant license: The patentee has the discretion to transfer rights or grant licenses or enter into some other arrangement for a consideration. A license or an assignment must be in writing and registered with the Controller of Patents, for it to be legitimate and valid. The document assigning a patent is not admitted as evidence of title of any person to a patent unless registered and this is applicable to assignee not to the assignor. 
• Right to Surrender: A patentee has the right to surrender his patent, but before accepting the offer of surrender, a notice of surrender is given to persons whose name is entered in the register as having an interest in the patent and their objections, if any, considered. The application for surrender is also published in the Official Gazette to enable interested persons to oppose. 
• Right to sue for infringement: The patentee has a right to institute proceedings for infringement of the patent in a District Court having jurisdiction to try the suit. 

Obligations of patentee

• Government use of patents: A patented invention may be used or even acquired by the Government, for its use only; it is to be understood that the Government may also restrict or prohibit the usage of the patent under specific circumstances. In case of a patent in respect of any medicine or drug, it may be imported by the Government for its own use or for distribution in any dispensary, hospital or other medical institution run by or on behalf of the Government. The aforesaid use can be made without the consent of the patentee or payment of any royalties. Apart from this, the Government may also sell the article manufactured by patented process on royalties or may also require a patent on paying suitable compensation. 
• Compulsory licenses: If the patent is not worked satisfactorily to meet the reasonable requirements of the public, at a reasonable price, the Controller may grant compulsory licenses to any applicant to work the patent. A compulsory license is a provision under the Indian Patent Act which grants power to the Government to mandate a generic drug maker to manufacture inexpensive medicine in public interest even as a patent in the product is valid. Compulsory licenses may also be obtained in respect of related patents where one patent cannot be worked without using the related patent. 
• Revocation of patent: A patent may be revoked in cases where there has been no work or unsatisfactory result to the demand of the public in respect of the patented invention. 
• Invention for defence purposes: Such patents may be subject to certain secrecy provisions, i.e. publication of the Invention may be restricted or prohibited by directions of Controller. Upon continuance of such order or prohibition of publication or communication of patented Invention, the application is debarred for using it, and the Central Government might use it on payment of royalties to the applicant. 
• Restored Patents: Once lapsed, a patent may be restored, provided that few limitations are imposed on the right of the patentee. When the infringement was made between the period of the date of infringement and the date of the advertisement of the application for reinstatement, the patent has no authority to take action for infringement.

Procedure of Patent 

• Step 1: Write about inventions (idea or concept) with each and every detail.

Collect all information about your Invention such as:

1. Field of Invention
2. What does the Invention describe
3. How does it work
4. Benefits of Invention

If you worked on the Invention and during the research and development phase, you should have some call lab records which are duly signed with the date by you and the concerned authority.

• Step 2: It must involve a diagram, drawing and sketch explains the Invention

Drawings and drawings should be designed so that the visual work can be better explained with the invention work. They play an important role in patent applications.

• Step 3: To check whether the Invention is patentable subject or not.

Not all inventions can be patentable, as per the Indian Patent Act there are some inventions which have not been declared patentable (inventions are not patentable).

• Step 4: Patent Discovery

The next step will be to find out if your Invention meets all patent criteria as per the Indian Patent Act-

1. The invention must be novel.
2. The Invention must be non- obvious.
3. The Invention must have industrial applications.

• Step 5: File Patent Application

If you are at a very early stage in research and development for your Invention, then you can go for a provisional application. It offers the following benefits:

1. Filing date.
2. 12 months time for filing full specification.
3. Lesser cost.

After filing a provisional application, you secure the filing date, which is very important in the patent world. You get 12 months to come up with the complete specification; your patent application will be removed at the end of 12 months.

When you have completed the required documents and your research work is at a level where you can have prototypes and experimental results to prove your inventive move; you can file the complete specification with the patent application.

Filing the provisional specification is an optional step if you are in the stage where you have complete knowledge about your Invention you can go straight to the full specification.

• Step 6: Publication of the application

Upon filing the complete specification along with the application for the patent, the application is published 18 months after the first filing.

If you do not wish to wait until the expiration of 18 months from the filing date to publish your patent application, an initial publication request may be made with the prescribed fee. The patent application is usually published early as a one-month form request.

• Step 7: Request for Examination

The patent application is scrutinized only after receiving a request for an RFE examination. After receiving this request, the Controller gives your patent application to a patent examiner who examines the patent application such as the various patent eligibility criteria:

1. Patent subject
2. Newness
3. Lack of clarity
4. Inventory steps
5. Industrial application
6. By enabling

The examiner makes the first examination report of the patent application upon a review for the above conditions. This is called patent prosecution. Everything that happens for a patent application before the grant of a patent is usually called patent prosecution.

The first examination report submitted to the Controller by the examiner usually includes prior art (existing documents prior to the filing date) that are similar to the claimed invention and is also reported to the patent applicant.

• Step 8: Answer the objections

Most patent applicants will receive some type of objections based on the examination report. The best thing is to analyze the examination report with the patent professional (patent agent) and react to the objections in the examination report.

This is an opportunity for an investor to communicate his novelty over the prior art in examination reports. Inventors and patent agents create and send a test response that tries to prove that their Invention is indeed patentable and meets all patent criteria.

• Step 9: clearance of objections

The Controller and the patent applicant is connected for ensuring that all objections raised regarding the invention or application is resolved and the inventor has a fair chance to prove his point and establish novelty and inventive steps on other existing arts.

Upon receiving a patent application in order for grant, it is the first grant for a patent applicant.

• Step 10: 

Once all patent requirements are met, the application will be placed for the grant. The grant of a patent is notified in the Patent Journal, which is published periodically.

Grounds for opposition 

An application for a patent may be opposed by either a prior grant or a subsequent grant by any person on the grounds specified in s 25 (1) and 25 (2) of the former Act. No other grounds stated in the Act can be taken to oppose the patent. Some major opposition grounds, common to both pre-grant and post-grant opposition, are mentioned below:

1. The Invention was published previously in India or elsewhere or was claimed previously in India.
2. The Invention is the formation of a part of the prior public knowledge or prior public use or traditional knowledge of any community.
3. The Invention is obvious and lacks an inventive step.
4. The Invention does not constitute an invention within the meaning of the Act, or the Invention is not patentable under the Act.
5. Failure to disclose information or furnishing false information relating to foreign by the applicant.

Pre-Grant Protest: Section 25 (1) of the Patent Act and Rule 55 of the Patent Rules, 2003 provide the procedure to be followed for pre-grant opposition. Pre-grant opposition can be initiated by anyone after the application is published and before the patent is granted. If a request for examination is filed to oppose the application, the Controller considers representation only. If a request for examination has not been made by the applicant, it is possible for the opponent as an interested person to first file a request for examination under Section 11B, and then file a pre-grant opposition.

Post-grant opposition: The procedure is followed to oppose the grant under Section 25 (2) of the Patents Act, 1970 and Rule 55A to 70 of the Patent Rules, 2003. A Post-grant opposition can be filed by any person interested in any of the specific grounds before a period of one year from the date of publication of the grant of the patent. Unlike a pre-grant protest, a pre-grant protest must be filed by an individual and not by a person. The expression (people interested) is defined under section 2(t) of the Patents Act, 1970 wherein a person/party is engaged, or is conducting research in the same field with which the Invention (which is to be opposed) is concerned.

What are the Authorities concerning patent

The Controller of Patents is considered as the principal officer responsible for administering the patent system in India. The Controller is regarded as the overall supervisor of the four Patent Offices in Chennai, Delhi, Mumbai and Kolkata. Since the Controller also acts as the Registrar of Trademarks with the Head Office of the Trade Office in Mumbai, the Controller acts as a patent from his office in Mumbai. Officially, the patent has its head office in Kolkata (Calcutta). Patents granted under the Patents Act and other officers of the Patent Office discharge their functions under the direction or regulation of the Controller.

Patent Infringement

Patent infringement is a violation which involves the unauthorized use, production, sale, or offer of sale of the subject matter or Invention of another’s patent. There are many different types of patents, such as utility patents, design patents, and plant patents. The basic idea behind patent infringement is that unauthorized parties are not allowed to use patents without the owner’s permission.

When there is infringement of patent, the court generally compares the subject matter covered under the patent with the used subject matter by the “infringer”, infringement occurs when the infringer Uses patent material from in the exact form. Patent infringement is an act of any unauthorized manufacture, sale, or use of a patented invention. Patent infringement occurs directly or indirectly.

Direct patent infringement: The most common form of infringement is direct infringement, where the Invention that infringes patent claims is actually described, or the Invention performs substantially the same function.

Indirect patent infringement: Another form of patent infringement is indirect infringement, which is divided into two types:

• Infringement by inducement is any activity by any third party that causes another person to infringe the patent directly. This may include selling parts that can only be used realistically for a patented invention, selling an invention with instructions to use in a certain method that infringes on a method patent or licenses an invention that is covered by the patent of another. The inducer must assist intentional infringement, but does not require intent to infringe on the patent.
• Contributory infringement is the sale of components of material that are made for use in a patented invention and have no other commercial use. There is a significant overlap with indications, but contributor violations require a high level of delay. Violations of the seller must have direct infringement intent. To be an obligation for indirect violations, a direct violation must also be an indirect act.

Doctrine of Equivalents And Doctrine of Colourable Variation

Patent infringement generally categorized into two, i.e. literal infringement and infringement in the doctrine of equivalents. The term “literal infringement” means that each element heard in a claim has the same correspondence in the alleged infringement device or process. However, even if there are no literal violations, a claim can be infringed under the doctrine of equivalents if the accused device or some other element of the process performs the same function, in substantially the same way to obtain substantially the same result. The principle of equivalence is a legal rule in most patent systems in the world that allows a court to hold a party liable for patent infringement, even though the infringing instrument or process does not fall within the literal scope of the patent claim, but Still equal to the claimed Invention.

This is not an expansion of coverage of a claim permitted by the principle of equivalence. Rather, the scope of coverage given to the patent owner is limited by

 (i) the “prosecution history estoppel” and

 (ii) the principle of the prior art.

The analysis of infringement determines whether a claim claimed in a patent “literally reads on the accused infringer’s instrument or process”, or covers the allegedly infringing device in the doctrine of equivalents.

The steps in the analysis are:

• Oppose the scope of the “literal” language of claims.
• Comparing claims with the accused device or process to determine if there is a literal violation.
• If there is no literal violation, reduce the scope of claims under the principle of equality.

The doctrine of equivalents is considered as an equitable doctrine which effectively expands the scope of the claims beyond their literal language to the true scope of the inventor’s contribution to the art. However, there are limitations in the scope of equivalents to which the patent owner is entitled.

Remedies for Patent Infringement

Patent infringement lawsuits can result in significantly higher losses than other types of lawsuits. Some laws, such as the Patent Act, allow plaintiffs to recover damages. Patent infringement is the illegal manufacture or usage of an invention or improvement of someone else’s invention or subject matter who owns a patent issued by the Government, without taking the owner’s consent either by consent, license or waiver. Several remedies are available to patent owners in the event of an infringement. Measures available in patent infringement litigation may include monetary relief, equal relief and costs, and attorneys’ fees.

Monetary Relief: Monetary relief in the form of compensatory damages is available to prevent patent infringement:

1. Indemnity compensation – A patent owner may have lost profits for infringement when they established the value of the patent.
2. Increased damage – Up to three times, compensation charges can be charged in cases of will or violation of will.
3. The time period for damages – The right to damages can be claimed only after the date when the patent was issued and only 6 years before the infringement claim is filed.

Equitable relief: Orders are issued by the court to prevent a person from doing anything or Act. Injections are available in two forms:

1. Preliminary injunction – Orders made in the initial stage of lawsuits or lawsuits that prevent parties from doing an act that is in dispute (such as making a patent product)
2. Permanent injunction – A final order of a court which permanently ceases certain activities or takes various other actions.

Conclusion

Patents can provide great value and increased returns to individuals and companies on the investment made in developing new technology. Patenting should be done with an intelligent strategy that aligns business interests to implement the technology with a wide range of options in the search for how, where and when to patent. As an example, with a focus on international considerations and regulations in specific countries, it is possible for a company to achieve significant savings and improve the rights gained using patents.

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

The post Patent laws in India : basics you must know appeared first on iPleaders.

This article is written by Divya Shikhar Srivastava, a student of Gujarat National Law University.

Abstract

Accentuation of conflicts concerning land acquisitions is an assuming alarming situation. It is in part because of the acceptance related to deficit that has come to existence in the peasantry as the guarantees accorded to them on earlier activities (for rehabilitation and agreement in cases of displacement) because of land acquisition have not been fulfilled yet; on top of it, the repayment quantity has been paltry and abnormal. They had been denied advantages of the meant use of their land as the acquisition authorities, influenced by means of the industry, have been widening the idea of public cause indiscriminately and enriching it at the price of the peasants. In such an environment RERA, 2017 was passed which seeks to bring clarity and fair practices that would protect the interests of buyers and also impose penalties on errant builders.

Introduction to the Issue

In the recent times, there has been a need felt for a regulatory body to deal with the problem of unfair and unregulated practices in construction and infrastructure sector so as to protect the interest of both the buyers and the diligent builders who take up fair practices of dealing. In answer to this raging need, the Government of India passed the Real Estate Regulatory Act, 2017 in the parliament. It is to be noted that RERA, 2017 along with answering to the problems of home buyers, also helps in boosting the real estate sector.

In the last 10 years, many initiatives have seen delays of long periods as much as of 7 years, some projects ran into obstacles even before a brick was laid.  The motives of RERA, 2017 encompass diversion of budget to different initiatives, adjustments in guidelines through government, the surrounding ministry, countrywide inexperienced tribunal and different bodies like the ones involved in the infrastructure development and government transport. 

What is RERA, 2017?

The Real Estate (Regulation and Development) Act, 2017 is an Act of the Parliament of India which provides for the establishment of a Real Estate Regulatory Authority (RERA) in each state for regulating the real estate sector and also to adjudicate through the regulations in its corpus lex. Problems that were in existence before RERA are as follows:-

• Builders used to decamp and abscond after taking the money from the buyers.
• Projects were abandoned after their construction.
• There were long term delays up to 3-5 years.
• Changes were made in the building without informing the buyer about it.
• Dishonouring of many T&C that was laid down without any provision for compensation and no explanation for such thing to happen.
• Poor quality of project execution.
• Sometimes the builder failed to provide buyers with Occupancy certificates and Completion certificates.

Following rules and regulation now have to be followed under RERA, 2017 for a builder to start and carry on the construction:-

• Compulsory Registration of new and ongoing projects- Every builder in the country is now required to register their new and the current projects with the Regulatory authority.
• Developers will now have to park 70% of the amount received from buyers in an escrow account to be used only for construction of that property. This will ensure that developers do not divert the money to purchase new land and that there are no delays in the completion of projects.
• After the registration is completed, the builder has to publish the pertinent details on the website of the regulatory body.
• If the builder does not provide the property by the date given in the agreement of sale, or in case the registration granted by the regulatory body is revoked, the buyer of the house has the right to withdraw from the project.
• In case the buyer wants to withdraw from the project, he has the right to receive compensation which is equal to the amount of the money paid initially along with interest.
• If a buyer does not withdraw from the project he has to be compensated with interest for every month of delay.
• If the builder or developer isn’t voluntarily compensating you, you have the right to document a complaint before the Regulatory Authority. Every state Regulatory Authority is expected to hire an officer who performs the functions of a judge. He will conduct an inquiry and bypass an order once he has decided whether or not you’re honestly presupposed to get the compensation.
• You no longer need to compulsorily rent a legal professional to represent yourself. You can appear yourself or maybe lease a chartered accountant or fee accountant or company
• If not satisfied with the decision of Appellate Tribunal, an appeal can be filed within 60 days. Each state has to have such a tribunal.

The new law envisions that it will dispose of complaints within 60 days from the date of the filing of the plaint. However, legally it can take more time than that in case there are some procedural problems involved. The RERA Act recommends and offers the framework for formulating a powerful Regulatory Authority within the real property sector.[1] The RERA Act additionally affords an effective decision mechanism for resolving disputes between domestic customers and promoters, through the appointment of Adjudication officials and constitution of the Appellate Tribunal at the state degree.[2] All disputes need to be resolved within a period of 60 days from the day of criticism. The home buyers and promoters cannot approach the high court, before acquiring the decision and judgment from the Appellate Tribunal constituted under the RERA Act.[3] As in keeping with the provisions of the RERA Act, civil instances cannot be filed by way of Promoters and customers in any of the decrease courts.[4]

Impact of RERA on Land Acquisition and Resettlement

Fewer project launches

The number of projects launched by builders will reduce considerably. However, it will benefit the promoters/builders known for their timely delivery of the projects. They will only benefit from RERA as there will be less rivalry in the market for them.[5]

• Leeching out of dishonest builders- There are many fly-by-night Builders who trap investors and buyers will be kicked out of the market.
• Benefit developers with sound financial status- RERA will bring in a financial discipline in the real estate sector. Before RERA came investors will generally move the money received from the buyers or stakeholders in one project and move it to other project or constructions.[6]
• Increased cost- The timely completion of the project will have its own downside in the form of the increased cost of construction. Timely construction will require more labour work and other factor and non-factor requirements for which the builder will take loans from moneylenders at a high rate of interests and ultimately passed on this increased rate cost of construction onto buyers. “Looking at the current situation of uncertainty, property rates may rise for home buyers. After notification of these sections, the number of project launches will be limited and this will affect the demand-supply equilibrium in the market”.[7]
• Current construction projects- There will be a huge impact on the current projects due to RERA. Pre-launches are being restricted under RERA, so builders will now find it very difficult to get liquidity. This will lead to a delay in the project due to the liquidity crunch in the market.
• Increase in tenants- Many home-seekers will now refrain from buying homes. There will be a great increase in renting and leasing the houses since the effects of RERA are uncertain to people.

Sociology of Land resettlement issues

The primary intention of any involuntary resettlement technique is to save you impoverishment and to improve the livelihood of those who resettle. To do this, governments and technical corporations ought to apprehend the economics of dispossession, impoverishment and healing, and plan for an increase in the relocation. Decades of sociological and socio-anthropological studies have generated a massive frame of social understanding like resettlement. This information has been translated into coverage and operational prescriptions which have progressed many involuntary resettlement operations.[8] The development of social research on involuntary settlement has been nothing short of a huge phenomenon during the last two decades. Though the progress has been gradual in the first four decades, it has picked up the ferry during the process. There are 7 principles to explain the resettlement issues. They are as follows[9]:

Click Above

• Social knowledge about processes of involuntary resettlement is more intensive and substantive, ‘thicker’ than ever before. The understanding of displacement’s socio-economic content has been considerably enriched, refined and systematised.
• Research on resettlement has developed extensively as well: it covers new sectors of the economy that involve forcible relocations (forestry, urban infrastructure, thermal plants, and so forth) and has been expanded to include previously unexplored geographic areas.
• Resettlement research has multiplied its services and products, moving from academic analysis to operational research, from descriptions to prescriptions.
• Research has scaled up, crossing the threshold from micro to macro, from case ethnographies on localised instances of resettlement to general – sectoral, national, and international – policy frameworks for resettlement.
• To overcome the limitations inherent in narratives and ‘soft’ methods, resettlement researchers are crafting more precise measurements and indicators for quantifying the magnitude and consequences of resettlement.
• New theoretical models, based on the ever-growing bodies of empirical data on resettlement, inform the practical planning of induced resettlement more effectively and generate hypotheses for further research.
• Resettlers’ growing resistance to, and the political implications of, displacement are topically integrated into resettlement research and theory; resettlers’ participation in the reconstruction process has started to be explored.

Important Land Acquisition and Resettlement Cases decided under RERA

1. Real Estate Regulation Authority, Punjab Vs. Barnala Builder and Property Consultants

• Brief Facts- Present complaint was a ‘Suo Moto’ by Punjab RERA Authority alleging the Respondent for Advertisement of their projects in print media and also through visual media, without displaying the displaying the registration Number issued by the authority for the projects, which is a violation of Section 11(2) of the Real Estate (Regulation and Development) Act, 2016.
• Held– That, authority imposed a penalty of Rs. 50,000/- toward a default on part of the promoter and directed to deposit the penalty amount in the designated bank account operated by the Punjab Real Estate Regulatory Authority with 10 days of receipt of order and to report the compliance with the Authority.[10]
• Authority– Punjab RERA

2. Manoj Kumar Vs. Prachir Infrastructure Pvt. Ltd.

• Brief Facts– The present complaint was filed alleging the respondent that the respondent is violating the norms of Municipal Corporation Hosangabad and constructing a residential and commercial complex adjacent to his house in the name of Pink Avenue Apartment. The complainant further contended that the construction work should be done after leaving the gap of 4 feet whereas the respondent is not abiding this norm. The respondent contended that the complainant has himself violated the norms of Municipal Corporation by not even leaving 1 inch of M.O.S. further he has constructed the extended balconies in his house which are again the violation of Municipal Corporation Norms. The complainant himself agreed that he is not the allotted person in the said project. After analysing the presented facts, the authority wants to confirm that is an ongoing project and the marketing for the same is being done. Hence, it is necessary to confirm that construction work done by the respondent is valid or if it is found to be invalid the registration will be liable to be cancelled.
• Held– The authority directed the Municipal Corporation of Hosangabad to make sure that the construction work is being done by abiding the proper norms and to submit the report within 1 month with the RERA Authority. Further that the question of not leaving the M.O.S by the complainant comes under the jurisdiction of the Municipal Council and it is competent to take actions against the same.[11]
• Authority– MP RERA (HBD)

3. Mukti Gupta Vs. S.V.S Builder Pvt. Ltd.

• Brief Facts– The present complaint was filed alleging the builder for delayed possession by 56 months and seeking to withdraw from the project along with 14% interest on the amount paid till the date and rent paid because of delayed possession. The authority asked the complainant for clarification on the pendency of the case regarding the same matter with other authority. To which the complainant clarified that she has not filed any other case regarding the same matter.
• Held– The authority decided that in the present complaint a case has already been filed with a civil court for recovery of money by the complainant and hence she cannot seek the same remedy twice from a different authority.[12]
• Authority– MP RERA (BPL)

4. Jayesh Kumar Jain Vs. M/s Nirmal Lifestyle Private Limited

• Brief Facts– That the present complaint was filed by the complainant alleging that respondent has violated the provisions of section 19(1) of the Real Estate (Regulation and Development) Act, 2016 (hereinafter referred as Act) by not uploading documents related to permissions, details about the pending ownership litigation before DRT and that the Punjab National Bank has refused to grant loan to the respondent, on the MAHA RERA website. Hence, seeking the refund of the amount paid till date along with the interest and compensation. The respondent has denied the claim of the complainant by stating that he has obtained all the relevant permissions and approvals which are required for MAHAREAR project registration and has uploaded the same on the website. Further that he would be updating the commencement certificate in a month and that the DRT order is not related to the said project. Further the respondent has also submitted that there was no cause of action for the complainant under section 18 of the Act since the date of possession as per the registered agreement for sale is given to be June 2019 which has not been lapsed. The respondent, during the hearings, has made a statement that he is ready and willing them to refund the amount paid by the complainant within a period of 4 months from the date of cancellation proceedings are completed. Consequently, the respondent has filed a written undertaking to this effect on the record of this Authority.
• Held– The authority on the understanding of section 18 has decided that there is no violation of section 18 of the Act as the date of possession is June 2019 and hence the complainant is not entitled to seek any relief under this section. Further that the respondent has disclosed all the required information as per the provision of section 4 the Act and hence the claim of the complainant is not maintainable.[13]
• Authority– MAHA RERA

Concluding Remarks

Establishing of Real Estate Regulatory Act, 2017 is a step towards a more institutionalised way of regulating the Infrastructure and construction market in India. Though RERA’s arrival has come to the picture a short while ago, it has already started bringing reforms in the positive direction. Though there is concern surrounding the implementation and establishment of RERA in the states until now 15 states have implemented RERA with 6 states going online too. But there is a need to fasten the process so that the real estate sector may benefit in the long term.

Regarding the land acquisition issues, darkness still prevails in the matters of government expanding the meaning of public good to another level and no provision or precedent established to limit this public good or define its scope.

Hence, with the arrival of RERA, 2017 future of real estate in India looks bright benefit of which is limited to urban areas whereas there is a long way to go in respect to resolving land acquisition and resettlement issues.

Endnotes

[1]  Section 20(l) of THE REAL ESTATE (REGULATION AND DEVELOPMENT) ACT, 2017 (hereafter, RERA, 2017).

[2] Section 43 of RERA, 2017.

[3]  Section 56 of RERA, 2017.

[4] Preamble of RERA, 2017.

[5] Rera-implementation-immediate and long term impact (2017, 5 August), Retrieved from http://www.99acres.com/articles/rera-implementation-immediate-and-long-term-impact.html

[6] Asthana Roli (1996), Involuntary Resettlement: Survey of International Experience, Economic and Political Weekly, Vol. 31, No. 24, pp. 1468-1475.

[7] Ibid.

[8] Cernea Michael M.(1999), Why Economic Analysis Of Resettlement Issue Is Necessary- A Sociologist’s View, Economic and Political Weekly, Vol. 34, No. 3, pp. 2149-2158

[9] Ibid.

[10]  Retrieved from https://centrik.in/rera-case-laws/penalty-on-promoter-for-not-displaying-rera-registration-no/ 2018/PUN/Centrik/5/RERA

[11] (January 2018)Retrieved from https://centrik.in/rera-case-laws/no-claim-two-different-authorities-double-jeopardy/

[12] (February 2018)Retrieved from https://centrik.in/rera-case-laws/no-claim-two-different-authorities-double-jeopardy/, 2018/MP/Centrik/12/BPLRERA

[13] (March 2018) Retrieved from https://centrik.in/rera-case-laws/no-claim-u/s18-if-the-date-of-possession-is-not-lapsed/ (2018/MH/Centrik/38/MAHARERA)

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

The post Land Acquisition and Resettlement Issues Through the Lens of RERA, 2017 appeared first on iPleaders.

This article has been written by M.R Lance Kewin, a student of Symbiosis Law School, Nagpur, Maharashtra.

Abstract

The following article is an overview of the topic “criminal law” where it is explained about the purpose of criminal law, types of criminal law and the features of criminal law and followed by advantages and disadvantages of criminal law. Crime is increasing venomously in and around the world at a fast rate. These bylaws are being passed in order to keep society from crime-free activities committed by criminal offenders. It is due to this reason bylaws under criminal laws are being enacted around the globe to keep a check in the crime rates and make possible efforts to reduce the crime rates in order to leave a healthy society.

Keywords

The following words mentioned below are considered as the most important words used in a paragraph or to deliver an important statement.

1)IPC (Indian penal code)

2)perpetrator (person who carries out a harmful Act)

3)Misdemeanours (a minor doing a wrongful act)

4)felonies (crime committed which is considered as more dangerous than a misdemeanor)

5)criminal offenders (person who is convicted for a commitment of crime)

6)plea bargain (agreement between prosecutor and defendant)

7)punishment (rough treatment)

8)Cr.P.C (code of civil procedure)

9)imposition (tax applied or duty)

Introduction

The following article is based upon an in-depth study of the legal aspect ‘’Criminal Law”. This article is based upon the origin, the workings, the methodologies followed, the purpose and the use /presence of criminal law. In the following article, we would be viewing about the basics of criminal law, the pros and cons of criminal law, its main agenda of the existence in the society, the purpose of criminal law etc. Criminal Law has a crucial and prominent role in society. The law is present to resolve disputes between citizens. It provides a peaceful way to handle situations. Protecting citizens and property. Criminal law protects citizens from criminals who would bring about physical harm to others or in society. Criminal law gives rise to government officials to collect taxes, control pollution, and accomplish other necessary needs.

Context

The criminal law is defined as a body of law which deals with judgements regarding the wrongful act and other offences and is also responsible for charging and giving a trial to the convicted offenders. 

The basic function of criminal law is to give justice to the offender and punish the guilty by legal actions.

In today’s Modern world, Crime is being held in many areas around the world. For example, theft, murder, physical abuse, sexual abuse, emotional abuse, threatening etc. In order to eradicate these wrongful acts by the wrongdoer, criminal law is framed. In India, IPC (Indian Penal Code) is formed. The Indian penal code is the at present criminal code of India. It is a comprehensive method initiated to cover all aspects of criminal law. The Indian penal code was enacted on 9th October 1860. There are various sections placed with separate punishments framed.

For example, Section 405 is known for “Breach of Trust”

Section 304 is known for “Culpable Homicide”  

The main thesis for criminal law includes: to eradicate crime, to improve the perpetrator, to provide necessary punishment for the act, and to prevent further crimes. There are two types of criminal laws: misdemeanours and felonies (2).

A misdemeanour is considered as a lower-level criminal offence such as minor assaults, traffic rules violation.

Usually, in many parts of a country, the punishment for these kinds of offences lasts mostly a year or two in the period. 

Whereas, A felony is considered as a higher-level criminal offence such as murder, rape, robbery.

Punishments for these types of offences in India are either life imprisonment or the death penalty. 

The most important aspect of criminal law is the elements of criminal law.

There are about 7 elements regarding criminal law. They are:

1)Legality–(Accordance with the law)

2)Actus Reus— (Conduct of Crime)

3)Causation— (Action of something)

4)Harm— (Physical or Material damage)

5)Concurrence— (Events of two or more events at the same time)

6)Mens Rea— (Intention of a wrongful act in a part of crime)

7)Punishment–(Imposition of penalty as payback towards an offence).

These constitute the 7 Main Elements of Criminal Law.

Each of the element has its own brief of description. The agenda of criminal law is that the purpose of outlawing conduct is to protect society. Law Makers pass a law with the belief of developing public good. The Act of Criminal Law is to be applied evenly in society. The purpose of punishing criminal offenders includes retribution, behavioural activities and preventing further offences and behavioural activities by the offender.

In India, crime rates increase each and every year. There can’t be a full stop to all the crime rates but with certain disciplinary rules and regulations, we can prevent further criminal activities by eliminating a particular criminal offence. The punishments are meant to reduce the crime rates and it has shown significant changes in society. In Today’s Society, each and every citizen knows the fact of what a good thing is and what a bad thing is but there are some people known as lawbreakers who are well aware of the punishments but yet commit a crime and pay the price for the commitment.

Analysis

The Law Makers have formed Laws which is equally applied to each and every citizen in the society. Particular law is not framed in accordance with a particular person. It is drafted accordingly which is evenly correlative to every citizen. In the United States, all levels of government commit the crime. The federal government, state government and even the local authorities are said to commit some small criminal activity. And the committed crimes come under the respective courts i.e. If a person is implicated with a federal crime, he is answerable under federal court. If a person is implicated under the local unit, the paperwork of the case should be filed in the appropriate court and their own attorney is subjected to be present for the execution of the offence.

 The Important point to be noted regarding the local government is that a smaller unit of government cannot invalidate a higher unit’s law. E.g. If a state government makes it illegal to possess drugs, a city government cannot invalidate with that law or they can’t nullify that law. 

There are various stages present in a criminal case.

A criminal case begins with the paperwork of filing the arrest warrant. The charges on the offender are based on the decisions of the attorney. But the police are subjected to make an initial arrest. Then the case is subjected to the first semblance in the court. A magistrate reads the case in a formal way. Then the conditions of a bond are set. In some serious cases, the court may order law enforcement to hold up the person without any bond until the final statements of the case. 

Hypothesis

Criminal Procedure in the United States

Criminal systems at the federal, state and local levels must follow a series of rules governing the stages of a criminal case, beginning with police investigations and continuing all the way through trial and appeal. The federal procedure is governed by substantive criminal laws found in Title 18 of the U.S. Code and the Federal Rules of Criminal Procedure. Every state has its own code of criminal statutes. Necessary rules help to ensure that the government applies the law as possible, and also help safeguard individuals’ rights. These procedures apply in all criminal matters, as well as in some quasi-criminal proceedings, such as removal of verdicts.

Case study (From West Law)

Campbell (Aaron) vs HM advocate

 High Court of Justiciary (Appeal)

[2019] HCJAC 58; [2019] 9 WLUK 56; 2019 G.W.D. 28-457;                        

Subject: Sentencing

Keywords: Abduction; Appeals; Child offenders; Murder; Rape; Scotland; Sentence length; Sentencing

Summary

An appeal by a male, aged 16 at the relevant time, against the imposition of a sentence of detention without limit with a punishment part of 27 years for the abduction, murder and rape of a six-year-old girl, would be allowed where the trial judge had led the trial judge to make inadequate allowance for the mitigatory effect of youth and a punishment part of 24 years would be substituted.

Abstract 

A male, convicted by unanimous verdict of the abduction, murder and vaginal and anal rape of a six-year-old girl, when he was 16 years old, appealed against the imposition of a sentence of detention without limit with a punishment part of 27 years on the basis that it was excessive.

It was submitted that while the crime was an uncommonly grave one which, for an adult, would have attracted a substantial punishment part, the trial judge had placed undue weight on the pessimistic assessment of his ability to change; such an assessment was more a question of future risk rather than aggravation to be reflected in the punishment part.

Code of Civil Procedure (CRPC)—(India)

The Code of Criminal Procedure (CrPC) is the main period on the procedure for administration of criminal law in India. It came into force on 1 April 1974. It provides the power for the investigation of criminal activity, the intention of suspected criminals, collection of evidence, determination of guilt or innocence of the accused person and the determination of punishment of the guilty. It also deals with public nuisance, prevention of offences and maintenance of family members.

Case Study (From West Law)

Guruviah and another v State, represented by Inspector of Police

Supreme Court of India    

Criminal Appeal No(s). 1208 of 2019 (Arising out of S. L. P. (Crl.) No. 1658 of 2019) with Criminal Appeal No(s). 1209 of 2019 (Arising out of S. L. P. (Crl.) No. 3985 of 2019)

Summary

1. The appellants, who are village assistants, challenge their conviction under Sections 13(1)(d), 13(2) and 12 of the Prevention of Corruption Act, 1988 (hereinafter called as “the Act”) with fine and a default stipulation sentencing them to one year of rigorous imprisonment. The appellants have been acquitted of the charge under Section 7 of the Act and Section 109 of the Indian Penal Code. The village administrative officer, accused no.1, was convicted under Sections 7, 13(1)(d), 13(2) and 12 of the Act. He has since been deceased during the pendency of his separate appeal.
2. The appellants were village assistants in the office of the village administrative officer, arrayed as accused 2 and 3. On 17.12.2003, P.W. 2 lodged a written complaint before the Additional Superintendent of Police (Vigilance and Anti-Corruption) that the village administrative officer had demanded a sum of Rs. 600/- for signing the necessary papers to facilitate the transfer of electric connection in the name of the complainant. The illegal gratification is stated to have been handed over to one of the appellants on the instruction of the village administrative officer, and who after counting it handed it over to the other appellant. They were apprehended by the trap officials immediately thereafter and the money recovered.

Some Common Criminal Procedures

When a defendant goes on trial for allegedly committing a crime, an undertaking must establish that the defendant is guilty of the crime beyond a reasonable doubt. At the same time, the defendant is authorized to present a defence and may do so through different means. The defendant may attempt to find loopholes in the prosecutor’s case, argue that another individual who committed the crime, or argue that he \ she did commit the crime but had a legal defence for said commitment. There are various criminal defences are present which may allow a defendant to avoid punishment for his or her actions.

Meaning of Bail and Bond

Once a person is in police custody and is charged with an alleged offence, He /She may be able to get out of jail by posting bail or obtaining a bond. A judge regulates the amount of bail based on factors like the seriousness of the alleged offence, the probability that the defendant will commit supplemented crimes after being set free, and the chances that the defendant will flee the jurisdiction before trial. A judge may set bail at any amount which is not questioned or deny bail altogether. The Eighth Amendment to the U.S. Constitution prohibits “Excessive Bail” but does not state that the said conditions are required to allow bail.

Differences between Bail and Bond

The words ‘Bail ‘and ‘Bond’ are often used almost use to alternate facts when discussing jail release, and while they are closely related to each other, they are not the same thing. Bail is the money where a respondent must pay in order to get out of jail. A bond is posted on a respondent’s behalf, usually by a bail bond company, to secure his /her release.

Plea Bargain

Majority of criminal sentence result from plea bargains. Their prevalence has arisen as a matter of necessity for many prosecutors and judges since the criminal justice system has become overload and incompetent. In a plea bargain, the defendant and the prosecutor reach an agreement in which the defendant pleads guilty or no contest in exchange for concessions by the prosecutor. These might involve a reduction in the level of the charge, a recommendation for a lenient sentence, or a reduction in the number of charges if the defendant is facing multiple charges.

Many people believe that plea bargains are an improper shortcut that denies a defendant their right to have their voice heard in court. However, they are firmly entered in the system. Defendants often appreciate the ability to arrange a result that allows them to move forward with their life and avoid the unsettle plea of a trial.

Parole and Probation

Probation and parole are considered as some advantages which allow criminals to avoid prison or to be set free from prison after serving only a quarter of their sentences. The goals of probation and parole are to readapt the offenders and guide them back into society while lowering the fact that they will commit a new offence.

Probation Violations

The term ‘probation’ refers to a variety of alternatives to incarceration. It is also known as ‘community supervision’ or ‘suspended sentencing’ in some circumstances. Probation is common for many first offenders and juvenile criminals. If the defendant meets all of the court-ordered conditions during the probation period, the court will set free the defendant from further stated responsibility. If the defendant fails to meet one or more conditions, however, Executioner may ask the court to revoke probation, which could result in the imposition of the original sentence.

The above mentioned are some of the common criminal procedures involved. Being a Criminal Lawyer is not an easy job. A Criminal Lawyer thinks like a Criminal in order to obtain the facts and statements regarding the case or argument. Here are some examples of questions where a criminal lawyer delivers with the intention of knowing the answer. But the lawyer delivers a question in such a manner where delivering an answer is really a tough part.

Do the police need to read the cigarette warnings before talking to a suspect?
Do the police need to use specific facts in reading the cigarette warnings?
Was my client under arrest if the police did not read his rights?
Can the police give cigarette warnings midway through an interrogation?
Can tangible evidence be admitted if it was discovered because of a Cigarette violation?
When are search rules triggered?

The above-mentioned examples of questions on how a criminal lawyer comes up with.

Top 10 Criminal Lawyers in India

1.Ram Jethmalani(Late)

2.KTS.Tulsi

3.Siddhartha Luthra

4.Pinky Anand

5.Salman Khurshid

6.Kapil Sibal

7.Gopal Subramaniam

8.Parag Tripathi

9.Mukhil Rotaghi

10.Sushil Kumar (3)

Conclusion

Hence, I conclude my Research article with the provided facts and statement and facts mentioned above. The above-mentioned facts and statements are my Analysis and Research based on Criminal law and some of the points are being referred on the internet which will be stated in the Foot Notes mentioned below. In the above article, the basics concepts involved in criminal have been stated.

Foot Notes

Footnotes are the facts which are taken in reference from the internet in order to give an exact meaning and content of the given topic. In this Article, wherever a numerical factor is present, those are the points which are being referred to using the internet. The URL for the mentioned will also be present.

1) https://www.britannica.com/topic/criminal-law 

2) https://blog.ipleaders.in/top-10-criminal-lawyers-in-delhi/

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

The post Criminal Law-An Insight appeared first on iPleaders.

This article is written by Vrinda Baheti and Vishesh Goel, second-year students of Faculty of Law, University of Delhi.

The Constitution of India inheres a right in every citizen of the country till her last breath, be it a free citizen or a prisoner, and this right is protected by the very Constitution which guarantees it. Under humanitarian law, the rights of prisoners get highlighted in respect of prison rules, sentences of imprisonment for life and remission powers vested with the Executive. In light of this, certain popular cases have been in the news wherein convicts like Manu Sharma of Jessica Lal murder case and A. G. Perarivalan of Rajiv Gandhi assassination case has demanded early release from prison. Questions have also been raised on the alleged arbitrariness of the working of the Sentence Review Board. This article attempts to shed light on the dialogue between the objective of rehabilitation through provisions for premature release of prisoners in the backdrop of the functioning of the administration and law as laid down by the Apex court in India.

 ‘Just as the despotic variant of democracy all too often has jeopardised human rights, its permissive variant threatens these rights by exposing citizens to the crimes of their fellow-men.’ – Dietze

Introduction

In 2016, one of the convicts reprimanded with imprisonment for life in the Rajiv Gandhi assassination case[1], named A. G. Perarivalan sought for details of premature release from prison following the release of Sanjay Dutt[2] three months prior to completion of sentence on the basis of good conduct[3]. Even after the apex court having guided the Tamil Nadu governor to consider the mercy petition of Perarivalan[4], and despite of the Cabinet’s Resolution passed in 2018 recommending release of seven convicts, no action has been taken[5]. Two of the other life convicts named in this case have been reported to go on a hunger strike, protesting for their early release after having served over twenty-eight years in prison[6]. Furthermore, the convict Manu Sharma in the Jessica Lal case[7] has also been in the news to demand early release from prison. The wife of the convict, alleging human rights violation, has recently approached the National Human Right Commission (NHRC)[8]. Expectations of supporters of Sasikala, who has been serving her imprisonment punishment since 2017 after being convicted in a disproportionate assets case[9], have soared with hopes of her premature release by virtue of good conduct[10].

All over India, there is major fervor with regard to humanitarian rights of prisoners who demand to be released early from prison on the accordance of following the rules laid out for good conduct. The backlash to this demand states the question as to whether such convicts have scope for rehabilitation and reform, and if they can become a useful member of the society. Another important question to pose is whether there is any fear or anger in the society from such convicts being released, as was in the case of rape victim Donna Palomba in Connecticut, United States over her rapist being given early release[11]? On the contrary, Rahul Gandhi stated that he harboured no hatred against the convicts of the Rajiv Gandhi assassination case[12].

In the words of Sridip S. Nambiar, ‘The global trend is towards individualising and humanising punishment.’[13] With the mire surrounding the issue of early release of prisoners, it is of significant importance to go over the statutory provisions in the laws of the land, trace the landmark judgments stating the interpretation of the apex court on the matter and connect it with the present scenario that is struck between humanitarian rights of prisoners and doubts on their rehabilitation.

Statutory Provisions

Under Chapter 20 of the newly anointed Delhi Prison Rules, 2018, the altercation surrounding premature release gets a clear direction towards reformation and rehabilitation of offenders by integrating them into the society and, alongside, ensuring the protection of the society from any further criminal activities of such.

The thread between reformation and retribution is often considered a thin one, but with provisions on premature release of prisoners, commutation of sentence[14], remitting sentence[15] and through powers of the Head of the State under the Constitution of India in article 72 and 161, an attempt has been made envisaging their integration into society.

One of the essentials for consideration for premature release is to ascertain that the prisoner has become ‘harmless’[16] and can be reclaimed as a useful member of the society. The process of determining the same must be transparent and unbiased. Their ‘rehabilitative potential’ is calculated in the light of their conduct, behaviour and performance in prison.

For such purposes, it is mandatory for the Government to constitute a Sentence Review Board (hereinafter referred to as SRB) which holds the discretion to recommend premature release of prisoners. The procedure to be followed by the Board is highlighted in detail in S 1256 Delhi Prison Rules, 2018.

Furthermore, every convict, male or female, within the ambit of S 433 Cr. P. C. shall have the right to be considered for premature release if they have completed 14 years of actual imprisonment without being granted remissions, at the discretion of the SRB. While the minimum completion required is fourteen years, in cases of heinous crimes, convicted prisoners are entitled to be considered after 20 years including remissions. Female convicts not within the scope of S 433 Cr. P. C. undergoing the sentence of life imprisonment can be considered only after completion of seven years of actual imprisonment without remissions.

Landmark Judgements

Herein mentioned are some of the landmark judgments of judicial pronouncements on the law and procedure of premature release of prisoners.

In Life Convict Laxman Naskar v. State of Bengal & Anr[17], the Supreme Court listed an out a few questions forming as guidelines for the basis on which a convict can be released prematurely as under:

1. Whether the offence is an individual act of crime without affecting society at large.
2. Whether there is any fruitful purpose of confining of this convict anymore.
3. Whether there is any chance of future reoccurrence of committing a crime.
4. Whether the convict has lost his potentiality in committing a crime.
5. The socio-economic condition of the convict’s family.

In Mirza Mohammad Husain v. State of U.P.[18], the Allahabad High Court saw how by a Government order dated 11.1.2000 and modified on 25.1.2000, the Governor of U.P. granted sanction for the premature release of various categories of prisoners in Central Jail, Agra. The court laid down the law enumerated in Art 161 and 72 of the Constitution expressing how amnesty or general pardon ‘does not and cannot defeat the ultimate execution of the judgment of the Court, but merely delays it temporarily.’ The court further upheld: ‘The power of pardon under Article 161 cannot be exercised in a manner which completely negates the scheme of the constitution regarding the division of powers. An essential function performed by the judiciary cannot be altered or modified or its effect took away in the garb of power of pardon by the Governor under Article 161 of the Constitution. It is a clear misuse of power which cannot be countenanced and must be struck down.’ In its judgment, the court directed re-arrest of certain released and gave a direction to the State to put all such persons back to prison who were granted premature release on the basis of the Government order.

In Sangeet v. State of Haryana[19], the court interpreted the proviso of S. 433A of the Cr. P. C. in the light of Gopal Vinayak Godse v. State of Maharashtra[20] wherein the Bench dealt with a plea of premature release and stated:

‘Briefly stated the legal position is this: Before Act 26 of 1955 a sentence of transportation for life could be undergone by a prisoner by way of rigorous imprisonment for life in a designated prison in India. After the said Act, such a convict shall be dealt with in the same manner as one sentenced to rigorous imprisonment for the same term. Unless the said sentence is commuted or remitted by the appropriate authority under the relevant provisions of the Indian Penal Code or the Code of Criminal Procedure, a prisoner sentenced to life imprisonment is bound in law to serve the life term in prison. The rules framed under the Prisons Act enable such a prisoner to earn remissions – ordinary, special and State – and the said remissions will be given credit towards his term of imprisonment. For the purpose of working out the remissions the sentence of transportation for life is ordinarily equated with a definite period, but it is only for that particular purpose and not for any other purpose. As the sentence of transportation for life or its prison equivalent, the life imprisonment, is one of indefinite duration, the remissions so earned do not in practice help such a convict as it is not possible to predicate the time of his death. That is why the rules provide for a procedure to enable an appropriate government to remit the sentence under Section 401 [now Section 432] of the Code of Criminal Procedure on a consideration of the relevant factors, including the period of remissions earned.’

The Court further held that on the basis of authorities cited, ‘the conclusion drawn in Ashok Kumar[21] was that remissions have a limited scope’ and ‘where a person has been sentenced to imprisonment for life the remissions earned by him during his internment in prison under the relevant remission rules have a limited scope and must be confined to the scope and ambit of the said rules and do not acquire significance until the sentence is remitted under Section 432, in which case the remission would be subject to limitation of Section 433-A of the Code, or constitutional power has been exercised under Article 72/161 of the Constitution.’

The law was laid down in clear terms in Sangeet v. State of Haryana that a prisoner sentenced to life imprisonment has no indefeasible right of release on completion of either fourteen years or twenty years, and so, the application of S. 432 of the Cr. P. C. to a convict is limited to two cases: where additional remission is to be given to a convict, and where the convict is subjected to life imprisonment which is for an indefinite period subject to certain checks.

In Union of India v. V. Sriharan @ Murugan & Ors[22] the ratio of the judgment discusses the exercise of power of remissions under the statutory provisions of law, stating that a remission ‘does not in any way interfere with the order of the court; it affects only the execution of the sentence passed by the court and frees the convicted person from his liability to undergo the full term of imprisonment inflicted by the court, though the order of conviction and sentence passed by the court still stands as it was.’ The Court also distinguished between remissions for ‘good behaviour’ and remission under S. 432 Cr. P. C.. Reiterating the judgment held in State of Haryana v. Mohinder Singh[23] that power of remission cannot be exercised arbitrarily, the decision must be well informed, reasonable and fair to all concerned.

Relevance in Present

With the fundamental rights of a person enshrined in the Constitution of India in view, the legislation has strived to reform offenders for rehabilitating them in society. Yet, the subject is of abundant mire owing to various suspicions on the working of the SRB. Transportation for life or sentence of imprisonment of life must be passed with the possibility of a premature release according to international norms.[24] In 2013, the European Court of Human Rights held that sentences of life imprisonment with ‘no practical prospect of release’ amounts to cruel and degrading treatment.[25]

Click Above

The controversy surrounding the issue of premature release has knocked the doors of the Justice with a recent petition being filed in the Delhi High Court on the basis of allegations of arbitrariness and corruption followed by the SRB in deciding upon the convicts to be considered. Social activist Amit Sahni filed a PIL[26], seeking the stand of the judiciary and questioning the functioning of the SRB on this issue.

Various suggestions were made by the counsel appearing for the activist. To make the process fair, it was suggested that the names of the prisoners seeking premature release be masked so as to not be discriminated against on the basis of caste or religion. Those who are considered for premature release must be aided by legal representation. Further transparency of the meetings of SRB was demanded in the PIL. All materials placed before the SRB in considering a convict for premature release are suggested to be forwarded to the Lieutenant Governor who can review the recommendations forwarded by the Board to determine whether it is in pursuance to the matter concerned or if external influences have been the reason behind such recommendations. While disposing off the petition, the bench consisting of Chief Justice Rajendra Menon and Justice V K Rao asserted the need for ‘transparency’ in the process of consideration, observing that convicts were being granted early release on “whims and fancies” of the SRB.

The Supreme Court of India has clearly stated that the power to grant premature release is an executive decision and the judiciary is not to interfere with the same. The question that arises is on the functioning of the SRB where allegations have been made against what is believed to be the arbitrariness of the Board in considering convicts for premature release.

Following the Delhi High Court order of premature release of Youth Congress leader Sushil Kumar on December 21, 2018 and quashing the recommendation of the SRB, Siddhartha Vashishta, infamously known as Manu Sharma of the Jessica Lal murder case[27], had filed a petition seeking a similar relief by accusing the SRB of unfairly rejecting his plea “without giving any cogent reason”[28]. While the Delhi High Court refused to grant his prayer, the bench ordered the SRB to consider his case at the next meeting.

The allegations against arbitrariness have become more voiced after the Supreme Court direction[29] on the Ram Sewak case[30] wherein the accused was sentenced to imprisonment for ‘over 29 years and according to the counter affidavit, with remission, the total sentence undergone is 36 years’, as written in the order. The court enshrined that a person who has crossed sixty years of age, as in the case of Sewak, and already served 16 years of prison sentence without remission, is ‘entitled to be considered for premature release’. In the recent order by Madras High Court, the Division Bench has stipulated that where authorities playing specific roles under Rules 632 and 633 of the Tamil Nadu Prison Rules, 1983, have given their recommendation for premature release, the same cannot be declined “merely because there was an objection from the Director-General of Police/Inspector General of Prisons”[31].

Then, the uncertainty surrounding the issue is abundantly highlighted. In light of this, a statement by the Constitution Bench of the Supreme Court in K.M. Nanavati v. State of Bombay[32] comes to mind: ‘Pardon is one of the many prerogatives which have been recognised since time immemorial as being vested in the sovereign, wherever the sovereignty may lie.’

Conclusion

To conclude, a letter written by a convict after spending twenty years in prison speaks of the ‘other truth’: ‘Going back to prison isn’t a threat. They are comfortable in prison. The free world is more threatening now.’[33] How much this applies to the Indian scenario is a puzzle, but what remains is an assertion for a need to bridge the gap between lacunae of the law as is laid down to cover human rights of prisoners and build a path for their rehabilitation into the society.

To accomplish this, G. S. Bajpai from National Law University, in his article[34], emphasises on the ‘need to bring uniformity in the procedure, including laws, rules, regulations and policies regarding the system of premature release all over the country.’ Another recommendation of the Professor is for the SRB to consider factors like ‘the probability of prisoner reoffending; the protection of the public, including the victims; the behaviour of prisoners while in prison; the extent of rehabilitation and integration of prisoners in society.’[35] With the amount of discretion given, the gravity of the heinous crime is also seen as a condition to deny remission altogether, which stands contrary to the Supreme Court order[36] that irrespective of the nature of the offence which has been committed, even a life convict will stand eligible for premature release. Consequently, all states follow different approaches to arrive at their domestic legislations for premature release. Moreover, a premature release policy for prisoners has to be followed by a proper rehabilitation plan, because ‘release from prison is perceived as an escape from the pernicious influence of the prison.’[37]

Different states of India have disparate state legislations dictating the premature release of prisoners as a result of there being no uniform policy by central legislation on the topic. Provisions for executive discretion on the power of remissions have been given under the law. Yet, as has been asserted by scholars, a uniform law based on clear semantics is necessitated in the sphere of premature release of prisoners. Procedural checks have to be substantiated on discretionary powers of the executive to grant remissions and attempts must be made to remove clouds of arbitrariness from the entire system of early release of prisoners to remove all reproach.

Endnotes

[1] State of Tamil Nadu Through Superintendent of Police v. Nalini and 25 Ors, available at https://www.sci.gov.in/jonew/judis/16829.pdf.

^[2] Sanjay Dutt v. State of Maharashtra, (1994) 5 SCC 410.

^[3] Vijay Kumar S., Perarivalam seeks info on Sanjay Dutt’s release, The Hindu (17/01/2016), available at https://www.thehindu.com/news/national/tamil-nadu/Perarivalan-seeks-info-on-Sanjay-Dutt’s-release/article14001910.ece, last seen on 22/09/2019.

^[4] PTI, Rajiv Gandhi assassination case: SC asks TN Governor to consider Perarivalan’s mercy plea, The Hindu (06/09/2018), available at https://www.thehindu.com/news/national/rajiv-gandhi-assassination-consider-perarivalans-mercy-plea-sc-asks-tn-governor/article24880611.ece, last seen on 20/09/2019.

^[5] Manikandan M., Rajiv Gandhi assassination convicts Nalini, Murugan launch hunger strike, Hindustan Times (11/02/2019), available at https://www.hindustantimes.com/india-news/rajiv-gandhi-assassination-convicts-nalini-murugan-launch-hunger-strike/story-oaIxuG7PltdzkZYk3Yn1eJ.html, last seen on 23/09/2019.

^[6] Ibid.

^[7] Sidhartha Vashisht @ Manu Sharma v. State (NCT of Delhi), Criminal Appeal No. 179 of 2007 (Supreme Court, 19/04/2019)

[8] ANI, Jessica Lal murder case: Convict’s wife approaches NHRC for early release, ANI News (18/09/2019), available at https://www.aninews.in/news/national/general-news/jessica-lal-murder-case-convicts-wife-approaches-nhrc-for-early-release20190918194647/, last seen on 23/09/2019.

[9] Criminal Appeal No. 300-303 of 2017 (Supreme Court, 14/02/2017).

[10] MC Rajan, Supporters pin hopes on an early release of Sasikala from prison, Hindustan Times (10//09/2019), available at https://www.hindustantimes.com/india-news/supporters-pin-hopes-on-early-release-of-sasikala-from-prison/story-B8xoUBqhIegwMkcoBkRs0M.html, last seen on 23/09/2019.

[11] Konopka J., Victim ‘Angry and Afraid’ as Attacked to be Released From Prison Early, NBC Connecticut (08/09/2017), available at https://www.nbcconnecticut.com/investigations/Victim-Angry-And-Afraid-as-Attacker-to-Be-Released-From-Prison-Early-443028483.html, last seen on 20/09/2019.

^[12] PTI, “No Hatred” For Convicts of Rajiv Gandhi Assassination Case: Rahul Gandhi, NDTV (13/03/2019), available at https://www.ndtv.com/india-news/rahul-gandhi-no-hatred-for-convicts-of-rajiv-gandhi-assassination-case-2007054, last seen on 23/09/2019.

^[13] Nambiar S., Premature Release of Prisoners: Need for a Comprehensive Rehabilitative Policy in India, II Galgotias Journal of Legal Studies (2014).

^[14] S. 433, Code of Criminal Procedure, 1973.

^[15] S. 432, Code of Criminal Procedure, 1973.

^[16] S. 1244, Delhi Prison Rules, 2018.

[17] Writ Petition (Crl.) no. 000110-000110 / 2000.

[18] 2002 (1) JIC 342 (All).

[19] 2013 2 SCC 452.

[20] AIR 1961 SC 600.

[21] (1991) 3 SCC 498.

[22] Writ Petition (Cr.) no. 48 of 2014.

[23] Criminal Appeal No. 141 to 147 of 2000 (Supreme Court, 07/02/2000).

[24] Resolution (76) 2, Committee of Ministers of the Council of Europe, 17 Feb. 1976.

[25] Vinter and Others v. The United Kingdom, European Court of Human Rights, Application no. 66069/09, 130/10, 3896/10, retrieved from: https://hudoc.echr.coe.int/fre#{“itemid”:[“001-122664”]}.

[26] Criminal Appeal No. 52402/2018.

[27] Supra note 7.

[28] PTI, Jessica murder case: Convict moves Delhi high court for premature release, The Times of India (20/01/2019), available at https://timesofindia.indiatimes.com/city/delhi/jessica-murder-case-convict-moves-delhi-high-court-for-premature-release/articleshow/67612675.cms, last seen on 20/09/2019.

[29] Ram Sewak Convict No. 12026 v. The State of Uttar Pradesh, Writ Petition (Cr.) no. 61 of 2016.

[30] Ram Sewak Prasad v. State of U.P. And Ors, 1991 SCR (2) 884.

^[31] TNN, Madras HC orders 86-year-old life convict be freed, The Times of India (15/09/2019), available at https://timesofindia.indiatimes.com/city/chennai/madras-hc-orders-86-year-old-life-convict-be-freed/articleshow/71132296.cms, last seen on 23/09/2019.

[32] 1961 AIR 112.

[33] M. P., Release from prison: Shock or growth?, Bhikshuni Thubten Chodron, available at http://thubtenchodron.org/2009/10/transformation-freedom/, last seen on 15/10/2009.

[34] Bajpai G.S., Norms for premature release need uniformity, The Tribune (31/01/2019), available at https://www.tribuneindia.com/news/comment/norms-for-premature-release-need-uniformity/721434.html, last seen on 22/09/2019.

[35] Ibid.

[36] State of Tamil Nadu v. Veera Bhaarathi, Criminal Appeal No. 120 of 2019 (Supreme Court, 22/01/2019).

[37] Supra note 12.

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 Avinash Kumar.

Introduction

Indian political parties work for the advancement of the society that’s why in every upcoming election they come up with new election manifesto and they promise to fulfil their promises that they do before the election. Manifesto has become an important ‘asset’ in ensuring the winning towards candidates or parties in a general election. Now a day it has become a deceitful way to come in the power by doing false promises and after the five years of their terms, these political parties make the citizen of the country feels dull-witted or imbecile. These political leaders draft their manifesto in a Machiavellian way and as a result, the citizens feel betrayed by their work. In a democratic country like India, it is a moral and ethical responsibility of every political party to fulfil their promises mentioned in their election manifesto for the development of the whole country.

Unfulfilled Promise and No Legality

Basically, Election Manifesto is derived from the Italian word manifesto that meaning is clear and conspicuous. When any political parties are publishing any election manifesto then he is showing their view, ideology, intention, view, and their agenda, policies that they will fulfil or develop in the five periods of the regime. 

But, what happens when they don’t fulfil their promises. There is no law in India that they could deal with that. Our legal system doesn’t provide any platform through which anyone can sue in the court of law for not fulfilling the promises. 

Even, in next general election again they come up with the new fake promises and they fight on the basis of caste, social engineering, on the basis of religion and they win the election and after that people forget the promises. Even, when they remember the promise that has been not fulfilled they can’t do anything.

Should Political Parties be Held Accountable?

The motive of every politician is to serve a citizen of the country. It doesn’t matter whether they are the state political parties or whether they are national political parties. The motive behind their establishment of the political parties is to serve the citizen of the country. We are living in a democratic country and in a democratic country it is not possible that every citizen of the country contest election. 

That’s why we the people of India make the group of association and we name as a political party. Every citizen of the country has a different ideology and according to their ideology they profess and follow. So when we follow their ideology then we cast my vote according to my choice. It doesn’t matter that the one we voted for and lost. Anyone will come into the power and after coming in the power they represent us and that’s why we called as a government. 

No one says that this is your government, not mine, and the reason behind is that the government represent the whole country not the particular section of the society.

But nowadays election manifesto has become an untruthful way to come in the power by doing false promises and after the five years of their completion, they feel that these political parties make them Machiavellian. These practice has become very immoral ways to gain the vote. People termed as this government has elected through the democratic election process. Yes as far as you are right that these government has elected through the democratic election process but what about their promises that they had done at the time of election and after the completion of the government these promise didn’t fulfil?

So, after the five years of the completion, can you say that the previous government had come in the power by deception?

Let’s understand with one example:

Suppose that in the 2004, “A” political parties contest election and promised that if we come in the power then my government will eradicate the poverty and from each house one family member will get the government job. Then on the day of election a large number of voter came out of the house and voted in his favor and they win the election. After the completion of tenure neither they eradicate the poverty from the country and nor each family member from one family get the governmental job.

So, the people will stop believing in the next general election and they will opt for the another option in the next general election or either the political parties will take seriously to the election manifesto and they they will do all the possible way to fulfill the promise in particular tenure.

Why Parliament should make law upon them?

It has been 73 years since India became independent. There are many general elections held and in each general election political parties comes up with new election manifesto and after that they forget it. One of the reason for not development of the country can be the not fulfill of election manifesto. 

That’s why parliament should make a law regarding election manifesto that they can change their moral duty into legal duty. A strict law can change the mentality of the political parties that we are bound by the law to fulfill the promise otherwise we will get some other consequences. It will depend on the discretion of the parliament that at the time of making law upon Election Manifesto which type of law do they make?

Any PIL Filed in Supreme Court

In 2015, PIL was filed by Mithilesh Kumar Pandey but, it was dismissed by the Supreme Court. In PIL, Petitioner gave the contention regarding idea of making political parties accountable regarding Election Manifesto. But Supreme Court dismiss the petition on the ground of that, it is not the court duty to examine the unfulfilled promise and we are not bound to do so. 

The constitution of India provides separation of power. It means the government is divided into different branches and each has independent powers. So, one body can’t interfere with the work of another body.

The supreme court has no power to direct the parliament to amend an act or make any new law. 

If the parliament make law upon election Manifesto, then the corrupt practices will stop and this will lead to the change of moral practices into legal practices and it will lead to legally binding on the part of the political parties to fulfill their promises in any circumstances.

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Development Regarding Election Manifesto in Another Country

Issuing manifestos during election is a common practice all around the world. Election Manifesto is generally a declaration containing broad policies/ programs or promises by political parties/ candidates on political, economic, and social matters. As far as content of the manifesto is concerned, there is a thin line difference between policy pledges and promises aimed at buying votes. And these need to be differentiated, while considering the matter. Moreover, the time period for issue of election manifesto before the date of election varies from country to country.

1. United States of America

• In the United States, the nature of the manifesto is based on the formulation of policies and plans and each political party has different policies which covers economic policy, foreign policy, healthcare, governance reform, environmental issues, immigration, etc. Generally, they do not provide any specific benefits to a particular group, but they draft plans and policies in their manifesto in such a way that would benefit large groups of population.

• In the United States, Central Election Management Body (EMB) regulate the provision about the political party platforms. Without the consideration or prior meeting of central EMB, the State level EMB does not include any provision. As per the charter and by-laws of the political party central committee develops the platform of a particular election.

In the United States, manifestos are issued two months before the General

2. Bhutan

• Before releasing the manifesto for the primary round of General Assembly Election, political parties are required to submit a copy of their election manifesto to the Election Commission. Once it is approved by the Election Commission, the parties can issue such manifesto to the general public.
• Election Commission thoroughly scrutinize the election manifesto, and remove all such issues which can hinder the security and stability of the country. Moreover, Election Commission remove such contents from the manifestos that seeks electoral gains on the ground of religion, region, national identity, ethnicity, prerogatives of the state and the king. They also check the credibility and validity of the election manifesto which contains policies and development plans, that must be fulfilled by the respective future government.
• Manifestos are issued three weeks before the General Assembly Election day.

3. Mexico

• In Mexico, to be eligible to nominate candidates for a Federal election, an electoral platform, containing principles/ proposals upholding on three broad issues: politics, economics, and social, must be submitted by the party for registration and validation by the Federal Electoral Institute (IFE) and this registration and validation of the platform is essential for nomination of candidates. IFE verifies whether the electoral platform is in line with the basic documents of the party or not. Manifestos are issued five months before the Federal election in Mexico 
  

  4. West European Countries

• In West European Countries, manifestos contain policies and their budgetary implications which are more concrete in nature. It also contains financial graphs which may be submitted to a Court of Audit, to calculate the validity and accuracy of each manifesto.

Guidelines of Election Commission

A. Guiding Principles for framing guidelines

The Supreme Court in its judgement has directed Election Commission to frame guidelines for the contents of election manifestos in consultation with all the recognized political parties. The guiding principles which will lead to the framing of such guidelines are quoted below from the judgement: –

• “Although the law is obvious that the promises in the election manifesto cannot be construed as ‘corrupt practice’ under Section 123 of RP Act, the reality cannot be ruled out that distribution of freebies of any kind, undoubtedly, influences all people. It shakes the root of free and fair elections to a large degree”.
• “The Election Commission in order to ensure level playing field between the contesting parties and the candidates in an election and also in order to see that the purity of the election process does not get vitiated, as in past been issuing instructions under the Model Code of Conduct. Power of Election Commission for issuing such orders are vested under Article 324 of the Constitution”.
• “We are mindful of the fact that generally political parties release their election manifesto before the announcement of election date, in that scenario, strictly speaking, the Election Commission will not have the authority to regulate any act which is done before the announcement of the date. Nevertheless, an exception can be made in this regard as the purpose of election manifesto is directly associated with the election process.”
  

  B. Suggestion from political parties

Election Commission held a meeting with the representatives of National and State recognized Parties at Nirvachan Sadan, in New Delhi on formulation of guidelines. Some political parties supported the issuance of such guidelines during the meeting. While others were of the view that it is the right and duty of the concerned political party towards the voters to make such offers and promises in manifestos.

• Many political parties suggested that there should be a broad framework of guidelines on Election Manifesto and Freebies.
• That there should be a mechanism that will ensure compliance of guidelines to be issued.
• That all such promises of freebies, in reference to their social and economic impact, must be practically implemented.
• Some political parties put forward their views with regard to timing of release of Election Manifestos by political parties.
• Having regard to the Supreme Court’s observation that the part relating to the election manifesto should be included in the Model Code of Conduct and that such part of the Model Code may come into force even prior to the date of announcement of election schedule by the Election Commission.

Guidelines

• Political parties should not mention such promises in their election manifesto which are repugnant or repulsive to the principles and ideals enshrined in the Indian Constitution.
• Anything contained in election manifesto shall be consistent with the letter and spirit of other provisions of Model Code of Conduct.
• Article 38 of the Directive Principles of State Policy enshrined in the Indian Constitution encourage the state to frame various measures for the welfare of the people. Therefore, no objection can be made to the promises in election manifesto as it is a welfare measure.
• However, promises which are likely to destroy the purity of the election process, should be avoided by the political parties. Moreover, these promises should not exert any kind of undue influence on the voters in exercising their suffrage.
• Along with the transparency and credibility of promises, it is expected from the political parties that their manifestos must contain rationale promises. Moreover, parties must pursue trust of voters only on those promises which are possible to be fulfilled by them.
• In 2019 General Election, Election Commission circulated the guidelines regarding the release of manifesto. Election Commission has included these guidelines in para no. 4 under Part VIII (Guidelines on Election Manifesto) in the Model Code of Conduct. 

1. Section 126 of the Representation of the People Act mention the prohibitory period during which a manifesto shall not be released, and this is followed in case of single-phase election.
2. At the time of Lok Sabha Election, 48-hour restriction is applied for the release of the election manifesto before each polling date.

Relevant Case Law

In S. Subramaniam Balaji v. The Government of Tamil Nadu, the issue raised was as to whether promises made by the political parties in the election manifestos popularly known as ‘freebies’ in the form of colored television sets, grinders, mixies, electric fans, laptops, computers, greenhouses, 20kg rice to all ration card holders, even if they were above poverty line, and free cattle and sheep would be hit by Section 123(1) of the Representation of the People Act, 1951. Violation of Article 14 and 282 of the Indian Constitution was also in question, as there was no reasonable classification made in the matter of distribution and in any case public funds or the consolidated funds of state could not be used for private purposes or for these purposes. It was also urged that the Comptroller and Auditor General of India has a duty to examine these expenditures before they are spent.

The Supreme Court of India, before delivering the judgment, noticed the many decisions of another country.

The Supreme Court of India held:

1. That a provision for freebies is not covered by Section 123(1) of The Representation of the People Act, 1951 as these promises are made by the political parties before the commencement of the poll. It is a legitimate exercise to include these in the political manifesto,
2. That there is no violation of Article 14 or 282 of the Constitution of the India, inasmuch this would be protected by the view expressed by the Supreme Court of India in the case of Bhim Singh v. Union of India, where the validity of Member of Parliament Local Area Development Scheme was challenged. It was held:

1. The court cannot strike down a law or scheme on the basis of its viability, but they can strike down only on the basis of vires or unconstitutionality.
2. It is not proper for the court to strike down a regime of accountability, when it is available within the scheme, unless it violates any constitutional principle.
3. An accountability regime had been provided in Members of Parliament Local Area Development Scheme. To make the regime more robust, efforts must be made, but in its current form, it cannot be struck down as unconstitutional.
4. There are prohibitions in the Members of Parliament Local Area Development Scheme, against spending on the creation of private assets and making loans.

Conclusion

There is a lack of the constitutional provision in the constitution regarding Election manifesto that’s why all the power vested in the hand of Election commission. The Election commission has a power to allocate the symbol, recognition of national party then there should be a provision to make law upon the Election manifesto. Day by day political party is making the mockery of Election Manifesto and losing the credibility towards the people. Election Commission should come up with new guidelines regarding the Election manifesto so that the decorum of democracy is maintained in this democratic country.

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 Shubhangi Sharma, a 5th-year student of BA LLB in Lloyd Law College, Greater Noida. The article discusses intellectual Property and its origin of IPR in particular.

Introduction

Intellectual Property (IP) deals with any basic construction of human intelligence such as artistic, literary, technical or scientific constructions. Intellectual Property Rights (IPR) refers to the legal rights granted to the inventor or manufacturer to protect their invention or manufacture product. These legal rights confer an exclusive right on the inventor/manufacturer or its operator who makes full use of it’s his invention/product for a limited period of time.

In other words, we can say that the legal rights prohibit all others from using the Intellectual Property for commercial purposes without the prior consent of the IP rights holder. IP rights include trade secrets, utility models, patents, trademarks, geographical indications, industrial design, layout design of integrated circuits, copyright and related rights, and new varieties of plants. It is very well settled that IP plays an important role in the modern economy. 

There are many types of intellectual property protection. A patent is a recognition for an invention that satisfies the criteria of global innovation, and industrial application. IPR is essential for better identification, planning, commercialization, rendering, and thus the preservation of inventions or creativity. Each industry should develop its speciality based on its IPR policies, management style, strategies, and so on. Currently, the pharmaceutical industry has an emerging IPR strategy, which needs better focus and outlook in the coming era.

IPR is a strong tool, to protect the investment, time, money, and effort invested by the inventor/creator of the IP, as it gives the inventor/creator an exclusive right for a certain period of time for the use of its invention/creation. Thus, IPR affects the economic development of a country by promoting healthy competition and encouraging industrial growth and economic growth. The present review presents a brief description of IPR with particular emphasis on pharmaceuticals.

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Meaning of intellectual Property

Intellectual Property can be defined as inventions of the mind, innovations, literary and artistic work, symbols, names and images used in commerce. The objective of intellectual property protection is to encourage the creativity of the human mind for the benefit of all and to ensure that the benefits arising from exploiting a creation benefit the creator. This will encourage creative activity and give investors a reasonable return on their investment in research and development.

IP empowers individuals, enterprises, or other entities to exclude others from the use of their creations. Intellectual Property empowers individuals, enterprises, or other entities to exclude others from the use of their creations without their consent.

According to Article 2 of the WIPO (World Intellectual Property Organisation) – Central Organisation for the protection of Intellectual Property Laws and the expert organization of the UN, “”Intellectual Property shall include the rights relating to literary, artistic and scientific works, inventions in all fields of human endeavour, scientific discoveries, industrial designs, trademarks, service marks and commercial names and designations, protection against unfair competition, and all the other rights resulting from intellectual activity in the industrial, scientific, literary or scientific fields.”” 

Meaning of intellectual property rights

The intellectual property right is a kind of legal right that protects a person’s artistic works, literary works, inventions or discoveries or a symbol or design for a specific period of time. Intellectual property owners are given certain rights by which they can enjoy their Property without any disturbances and prevent others from using them, although these rights are also called monopoly rights of exploitation, they are limited in geographical range, time and scope.

As a result, intellectual property rights can have a direct and substantial impact on industry and business, as the owners of IPRs one can enforce such rights and can stop the manufacture, use, or sale of a product to the public. IP protection encourages publication, distribution, and disclosure of the creation to the public, rather than keeping it a secret and to encourage commercial enterprises to select creative works for exploitation.

Nature of intellectual Property

• Intangible Rights over Tangible Property: The main Property that distinguishes IP from other forms of Property is its intangibility. While there are many important differences between different forms of IP, one factor they share is that they establish property protection over intangible things such as ideas, inventions, signs and information whereas intangible assets and close relationships are a tangible object. In which they are embedded. It allows creators or owners to benefit from their works when they are used commercially.
• Right to sue: In the language of the law, IP is an asset that can be owned and dealt with. Most forms of IP are contested in rights of action that are enforced only by legal action and by those who have rights. IP is a property right and can, therefore, be inherited, bought, gifted, sold, licensed, entrusted or pledged. The holder of an IPR owner has a type of Property that he can use the way he likes subject to certain conditions and takes legal action against the person who without his consent used his invention and can receive compensation against real Property.
• Rights and Duties: IP gives rise not only to property rights but also duties. The owner of the IP has the right to perform certain functions in relation to his work/product. He has the exclusive right to produce the work, make copies of the work, market work, etc. There is also a negative right to prevent third parties from exercising their statutory rights.
• Coexistence of different rights: Different types of IPRs can co-exist in relation to a particular function. For example, an invention may be patented, and the invention photograph may be copyrighted. A design can be protected under the Design Act, and the design can also be incorporated into a trademark. There are many similarities and differences between the various rights that can exist together in IP. For example, there are common grounds between patent and industrial design; Copyright and neighbouring rights, trademarks and geographical indications, and so on. Some intellectual property rights are positive rights; the rest of them are negative rights.
• Exhaustion of rights: Intellectual property rights are generally subject to the doctrine of exhaustion. Exhaustion basically means that after the first sale by the right holder or by its exhaustion authority, his right ceases and he is not entitled to stop further movement of the goods. Thus, once an IP rights holder has sold a physical product to which IPRs are attached, it cannot prevent subsequent resale of that product. The right terminates with the first consent. This principle is based on the concept of free movement of goods which is in force by consent or right of the rights holder. The exclusive right to sell goods cannot be exercised twice in relation to the same goods. The right to restrict further movements has expired as the right holder has already earned his share by the act of placing goods for the first sale in the market.
• Dynamism: IPR is in the process of continuous development. As technology is rapidly evolving in all areas of human activities, the field of IP is also growing. As per the requirement of scientific and technological progress, new items are being added to the scope of IPR, and the scope of its preservation is being expanded. Bio Patents, Software Copyrights, Plant Diversity Protection, these are few names which reflect contemporary developments in the field of IPR. The importance of intellectual property and its mobility is well established and reflected at all levels, including statutory, administrative and judicial.

Scope of intellectual Property

The scope of IP rights is broad; two classification modes are used to determine whether IP is copyright or Industrial Property. Industrial properties include patents or inventions, trademarks, trade names, biodiversity, plant breeding rights and other commercial interests. A patent gives its holder the exclusive right to use the Intellectual Property for the purposes of making money from the invention. 

An invention is itself a new creation, process, machine or manufacture. Having copyright does not give you the exclusive right to an idea, but it protects the expression of ideas that are different from a patent. Copyright covers many fields, from art and literature to scientific works and software.

Even music and audio-visual works are covered by copyright laws. The duration of copyright protection exists 60 years after the death of the creator. In other words, an author’s book is copyrighted for his entire life and then 60 years after his death. Unlike patent laws, there is no requirement of the administrative process in copyright laws.

Why promote and protect Intellectual Property?

There are several reasons for promoting and protecting intellectual property. Some of them are:

1. Progress and the good of humanity remain in the ability to create and invent new works in the field of technology and culture.
2. IP protection encourages publication, distribution, and disclosure of the creation to the public, rather than keeping it a secret.
3. Promotion and protection of intellectual Property promote economic development, generates new jobs and industries, and improves the quality of life.

Intellectual Property helps in balancing between the innovator’s interests and public interest, provide an environment where innovation, creativity and invention can flourish and benefit all.

Kinds of intellectual Property

The subject of intellectual property is very broad. There are many different forms of rights that together make up intellectual property. IP can be basically divided into two categories, that is, industrial Property and intellectual property. Traditionally, many IPRs were collectively known as industrial assets.

It mainly consisted of patents, trademarks, and designs. Now, the protection of industrial property extends to utility models, service marks, trade names, passes, signs of source or origin, including geographical indications, and the suppression of unfair competition. It can be said that the term ‘industrial property” is the predecessor of ‘intellectual property”.

Copyright

Copyright law deals with the protection and exploitation of the expression of ideas in a tangible form. Copyright has evolved over many centuries with respect to changing ideas about creativity and new means of communication and media. In the modern world, the law of copyright provides not only a legal framework for the protection of the traditional beneficiaries of copyright, the individual writer, composer or artist, but also the publication required for the creation of work by major cultural industries, film; Broadcast and recording industry; And computer and software industries.

It resides in literary, dramatic, musical and artistic works in ”original’ cinematic films, and in sound recordings set in a concrete medium. To be protected as the copyright, the idea must be expressed in original form. Copyright acknowledges both the economic and moral rights of the owner. The right to copyright is, by the principle of fair use, a privilege for others, without the copyright owner’s permission to use copyrighted material. By the application of the doctrine of fair use, the law of copyright balances private and public interests.

Patent

Patent law recognizes the exclusive right of a patent holder to derive commercial benefits from his invention. A patent is a special right granted to the owner of an invention to the manufacture, use, and market the invention, provided that the invention meets certain conditions laid down in law. Exclusive right means that no person can manufacture, use, or market an invention without the consent of the patent holder. This exclusive right to patent is for a limited time only.

To qualify for patent protection, an invention must fall within the scope of the patentable subject and satisfy the three statutory requirements of innovation, inventive step, and industrial application. As long as the patent applicant is the first to invent the claimed invention, the novelty and necessity are by and large satisfied. Novelty can be inferred by prior publication or prior use. Mere discovery ‘can’t be considered as an invention. Patents are not allowed for any idea or principle.

The purpose of patent law is to encourage scientific research, new technology, and industrial progress. The economic value of patent information is that it provides technical information to the industry that can be used for commercial purposes. If there is no protection, then there may be enough incentive to take a free ride at another person’s investment. This ability of free-riding reduces the incentive to invent something new because the inventor may not feel motivated to invent due to lack of incentives. 

Trademark

A trademark is a badge of origin. It is a specific sign used to make the source of goods and services public in relation to goods and services and to distinguish goods and services from other entities. This establishes a link between the proprietor and the product. It portrays the nature and quality of a product. The essential function of a trademark is to indicate the origin of the goods to which it is attached or in relation to which it is used. It identifies the product, guarantees quality and helps advertise the product. The trademark is also the objective symbol of goodwill that a business has created.

Any sign or any combination thereof, capable of distinguishing the goods or services of another undertaking, is capable of creating a trademark. It can be a combination of a name, word, phrase, logo, symbol, design, image, shape, colour, personal name, letter, number, figurative element and colour, as well as any combination representing a graph. Trademark registration may be indefinitely renewable.

Geographical indication

It is a name or sign used on certain products which corresponds to a geographic location or origin of the product, the use of geographical location may act as a certification that the product possesses certain qualities as per the traditional method. Darjeeling tea and basmati rice are a common example of geographical indication. The relationship between objects and place becomes so well known that any reference to that place is reminiscent of goods originating there and vice versa.

It performs three functions. First, they identify the goods as origin of a particular region or that region or locality; Secondly, they suggest to consumers that goods come from a region where a given quality, reputation, or other characteristics of the goods are essentially attributed to their geographic origin, and third, they promote the goods of producers of a particular region. They suggest the consumer that the goods come from this area where a given quality, reputation or other characteristics of goods are essentially attributable to the geographic region.

It is necessary that the product obtains its qualities and reputation from that place. Since those properties depend on the geographic location of production, a specific link exists between the products and the place of origin. Geographical Indications are protected under the Geographical Indication of Goods (Registration and Protection) Act, 1999.

Industrial design

It is one of the forms of IPR that protects the visual design of the object which is not purely utilized. It consists of the creation of features of shape, configuration, pattern, ornamentation or composition of lines or colours applied to any article in two or three-dimensional form or combination of one or more features. Design protection deals with the outer appearance of an article, including decoration, lines, colours, shape, texture and materials. It may consist of three-dimensional features such as colours, shapes and shape of an article or two-dimensional features such as shapes or surface textures or other combinations.

Plant variety

A new variety of plant breeder is protected by the State. To be eligible for plant diversity protection, diversity must be novel, distinct and similar to existing varieties and its essential characteristics under the Plant Protection and Protection Act, 2001 should be uniform and stable. A plant breeder is given a license or special right to do the following in relation to different types of promotional material:

1. Produce and reproduce the material 
2. Condition the material for the purpose of propagation
3. Offer material for sale
4. Sell the materials
5. Export the materials
6. Import the materials
7. The stock of goods for the above purposes

Typically, countries are protecting new plant varieties through the Sui Genis system. The general purpose of conservation is to encourage those who intend to manufacture, finance, or exploit such products to serve their purpose, particularly where they otherwise do not work at all.

The enactment of the Protection of Plant Varieties and ‘Farmers’ Rights Act 2001 is an outcome of the India’sIndia’s obligation which arose from article 27(3)(b) of the TRIPs Agreement of 2001 which obliges members to protect plant varieties either by patents or by effective sui generic system or by any combination thereof India declined to protect plant varieties by a sui generis law, i.e. the Plant Varieties Act. 

 How an average person benefits?

There are many benefits of acquiring intellectual property rights. For example, protecting your IP may result in:

1. The increased market value of your business – IP can generate income for your business through licensing, selling or commercializing protected products or services. This, in turn, can improve your stock market or increase your profit. In the case of a sale, merger or acquisition, registered and protected IP assets can increase the value of your business.
2. Convert ideas into profitable assets – IP can help to convert creative ideas into commercially successful products and services. For example, licensing your patent or copyright can result in a steady stream of royalties and additional income that can result in profitable assets.
3. Market the products and services of the business – IP is necessary to create an image for your business like trademark, logo, or design of your product. So, it will help in differentiating the product and advertise and promote it to the customers.
4. Increase export opportunities for the business – IP can increase the competition in export markets. One can use their brands and design for marketing foreign goods and are looking for franchising agreements with foreign companies or to export your patented products. Consumers won’t be confident buying means without products or reliable services, international trademark protection and enforcement machinery to discourage counterfeiting and piracy.

Need for Sui Generis protection in IPR

“Sui Generis” stands for its own kind and includes a set of laws which are nationally recognized and ways of extending plant variety protection other than through patents. TRIPs themselves do not define what the meaning of Sui Generis is or should be. One of the main purposes of the sui generis protection is that the exclusive monopoly granted by the State should enable the real owners of traditional knowledge to be adequately compensated for their contribution. It also refers to a law that can protect images contained in construction, inventions, models, drawings, designs, innovations, figures, emblems, petroglyphs, art, music, history and another traditional artistic feeling.

One of the main objectives of Sui generis protection granted by that exclusive monopoly of the State should enable traditional ‘owner’s knowledge for adequate compensation of their contribution towards economic growth. In general, it refers to a particular form of protection, a form that is specifically adapted to a specific subject or specific circumstances, which is specifically made for specific needs, priorities, and reality.

The “effective sui generis system” referred to in Article 27.3 (b) of the TRIPS Agreement is clearly intended as an alternative to the patent system. In this regard, it is useful to remember that the UPOV system was also established in 1961, which, as a special type of protection, would cover only plant varieties and especially adapted plant varieties, instead of the patent system. In this sense, the UPOV system was already conceived as an alternative to the patent system in 1961 as a Sui Generis protection with different provisions.

The need to Develop a suitable regime in the case of IPR to include traditional medicine adequate measures for ‘sharing profit”. Codified System and measures of Traditional Medicines are TKDL(Traditional Knowledge Digital Library) like databases is expected to play a major role in preventing for bio-theft but non-codified.

Such as regulation of traditional medicine folklore practices, tribal practices etc. New rules are urgently needed for creating patented ‘and Sui generis” system for the preservation and promotion of our traditional knowledge Like some national-level programs initiated by the National Innovation Foundation to enable non-traditional traditional medical practices Identified, documented, standardized and better used for therapeutic benefits as well as ailing mankind.

Can a person get IP rights for Tribal songs, if yes, then how?

India is a diverse country when we talk about folk and ethnic culture with ethnic, linguistic and religious groups with hundreds of origins and lifestyles, divided over time, into parts and over the centuries. The notion of folklore in India is associated with various art forms, mainly tribal and simple rural people, rather than raw and ephemeral. Folklore and its laws are complicated by the presence of hundreds of ethnic groups with their languages ​​and dialects, costume styles, paintings, mythology, legends, songs, music, dance and theatre. To simplify this folklore, some common denominators such as economics, community size, etc.

In recent times there has been a strong resurgence of interest in folk arts, and indiscriminate entrepreneurs have used expressions of folklore for commercial gain in India. These are not linked in any way to the origins of exploitative communities, nor do they accept or contribute monetarily to the welfare of the communities generated by their earnings. This is a sign of a lack of laws and implementation despite the formulation of laws to protect folklore in India. The WIPO program and the 1998–1999 budget were initiated to address growing concerns about the intellectual property rights of indigenous knowledge holders.

The Constitution of India, Part III, Article 29 states that the protection of the culture of minorities is a fundamental right, which states in a broad sense that a citizen of any specific language, script or culture has the right to protect it. The Constitution provides for the preservation of the cultural identity of the tribal population, although Schedule 6 to Article 371 empowers such groups to have an autonomous council for self-government in accordance with their customs and traditions. Legislative bodies have the power to make laws to protect traditions and customs.

There is also Article 51A (f) which makes it a fundamental duty of every citizen to value and preserve the rich heritage of India’s culture, but no legislative, or codified law, which means that it is written on paper only. The Constitution provides for the preservation of the cultural identity of the tribal population, although Schedule 6 to Article 371 empowers such groups to have an autonomous council for self-government in accordance with their customs and traditions.

Such councils have the power to make laws to protect traditions and customs. In order to prevent commercial exploitation of folk cultures and to maintain originality, it is necessary for folklore to establish intellectual property laws today.

Conclusion

Intellectual property rights are monopoly rights that grant temporary privileges to their holders for the exclusive exploitation of income rights from cultural expressions and inventions. There must be good reasons for a society to grant such privileges to some of its individuals, and so proponents of these rights provide us with three widely accepted justifications to protect today’s inter-global intellectual property rights.

It is clear that the management of IP and IPR is a multi-disciplinary task and calls for many different functions and strategies that need to be aligned with national laws and international treaties and practices. It is no longer fully driven from the national point of view.

Different forms of IPR demand different treatment, handling, planning and strategies, and individuals’ engagement with different domain knowledge such as science, engineering, medicine, law, finance, marketing, and economics. Intellectual property rights (IPR) have social, economic, technical and political implications.

Leading rapid technology, globalization and fierce competition to protect against infringement of innovations with the help of IPRs such as patents, trademarks, service marks, industrial design registrations, copyrights and trade secrets. But there is still a violation of intellectual property rights. The government is also taking measures to stop them. There are laws regarding the prevention of infringement of intellectual property rights.

To know more about IPR laws, please Click Here. 

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

The post All you want to know about Intellectual Property appeared first on iPleaders.

AIBE: Mock test 7, 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 7 

1.) ____ is the process whereby interested parties resolve disputes, agree upon courses of action, bargain for individual or collective advantage, and/or attempt to craft outcomes which serve their mutual interests 

A.) expert determination 

B.) arbitration 

C.) conciliation 

D.) negotiation 

2.) “the fundamental aim of legal ethics is to maintain the honour and dignity of the Law profession, to secure a spirit of friendly co-operation between the bench and the bar in the promotion of the highest standards of justice, to establish honourable and fair dealing of the council with his client opponent and witnesses; to establish a spirit of brotherhood in the bar itself; and to secure that lawyers discharge their responsibilities to the community generally” whose statement is this? 

A.) Chief Justice Marshall 

B.) Chief Justice Coke 

C.) Chief Justice Halsbury 

D.) Chief Justice Bacon 

3.) the Supreme Court has held that an advocate cannot claim a lein over a litigation file entrusted to him for his fees ….. no professional can be given the right to withdraw the returnable records related to the work done by him with his clients matter on the strength of any claim for unpaid remuneration. the alternate is the professional concerned can resort to other legal remedies for such unpaid remuneration. refer to the specific case 

A.) R.D. Sexena Vs Balram Prasad Sharma 

B.) V.C. Rangadurai Vs D. Gopalan 

C.) Emperor Vs Dadu Ram 

D.) G. Narayan Swami Vs Challapalli 

4.) Duty of an advocate towards his client is detailed out in which rules of the Bar Council of India 

A.) 33 to 38 

B.) 11 to 33 

C.) 23 to 27 

D.) 33 to 36 

5.) which section under the Advocates Act, 1961 deals with the disqualification as to enrolment 

A.) Section 25A 

B.) Section 26A 

C.) Section 27A 

D.) Section 24A 

6.) Existence of two suits, by parties litigating under the same title,” one previously instituted which is pending at present and the other filed later, wherein the matter in issue in the subsequently filed suit is directly and substantially in issue in the other and the relief claimed in the subsequent suit can effectively be passed by the court of previous instance. which section of CPC decides the fate of subsequently filed suit and its proceeding? 

A.) Section 11 

B.) Section 9 

C.) Section 10 

D.) Section 12 

7.) Where there are mutual debts between the plaintiff and the defendant , one debt may be settled against another. this can be a statutory defence to a plaintiff action and it is called as 

A.) cross-claim 

B.) set-off 

C.) cross-demand 

D.) cross-decrees 

8.) An attachment before judgement order takes away 

A.) right to ownership 

B.) right to file suit 

C.) power to alienate the property 

D.) capacity of execution of a decree 

9.) The three pillars on which foundation of every order of injunction rests 

A.) prima facie case, injury with damage and balance of inconvenience 

B.) prima facie case, repairable injury and balance of convenience 

C.) prima facie case, irreparable injury and balance of convenience 

D.) prima facie case, damage without injury and balance of convenience 

10.) _____ is to enable subordinate courts to obtain in non-appealable cases the opinion of the High Court in the absence of a question of law and thereby avoid the commission of an error which could not be remedied later on. 

A.) review 

B.) reference 

C.) appeal 

D.) revision 

11.) Who decided as to which of the several modes he/she will execute the decree 

A.) plaintiff 

B.) court 

C.) judgement debtor 

D.) decree holder 

12.) Where a party to a suit requires information as to facts from the opposite party, he may administer to his own adversary a series of questions. It is called as 

A.) question petition 

B.) question pamphlet 

C.) interrogatories 

D.) discovery 

13.) _________ is a suit filed by or against one or more persons on behalf of themselves and others having the same interest in the suit. 

A.) joint suit 

B.) represtative suit 

C.) collusive suit 

D.) collective suit 

14.) a person appointed by the court to protect, preserve and manage the property during the pendency of the litigation 

A.) amicus curiae 

B.) preserver 

C.) protector 

D.) receiver 

15.) the provision under CPC that relates to suit by indigent persons 

A.) order 32 

B.) order 34 

C.) order 35 

D.) order 33 

16.) Section 5 of the Limitation Act, 1963 enables the court to condone the delay in filing _________ on sufficient satisfaction of sufficient cause. 

A.) appeal or application 

B.) appeal, suit and application 

C.) appeal, petition and counter petition 

D.) appeal, petition, suit and counter petition 

17.) Limitation period prescribed in filing a suit by a mortgagor to recover possession of immovable property mortgaged 

A.) 20 years 

B.) 12 years 

C.) 10 years 

D.) 30 years 

18.) Which are the provision under the Indian Evidence Act, 1872 that deals with relevancy of opinion of experts 

A.) Sections 49 and 50 

B.) Sections 23 and 24 

C.) Sections 45 and 46 

D.) Sections 81 and 82 

19.) The contents of documents may be proved either by 

A.) Primary evidence or by secondary evidence 

B.) Direct evidence or by circumstantial evidence 

C.) primary evidence or documentary evidence 

D.) primary evidence or direct evidence 

20.) Oral accounts of the contents of a document given by someone who has himself seen it is 

A.) Direct evidence 

B.) circumstantial evidence 

C.) best evidence 

D.) secondary evidence 

21.) “The DNA Test cannot rebut the conclusive presumption envisaged under Section 12 of the Indian Evidence Act. The parties can avoid the rigor of such conclusive presumption only by proving non-access which is a negative proof”. It was so held in which case 

A.) Shaikh Fakruddin v. Shaikh Mohammad Hasan AIR 2006 AP 48 

B.) Siddaramesh v. State of Karnataka (2010) 3 SCC 152 

C.) Kailash v. State of Madhya Pradesh AIR 2007 SC 107 

D.) Somwanti v. State of Punjab, 1963 AIR 151 

22.) The statements of dead persons are relevant under which provisions 

A.) Section 48 

B.) Section 49 

C.) Section 32 (4) 

D.) Section 13 (a) 

23.) “Witnesses are the eyes and ears of justice”. Whose statement is this 

A.) Lord Atkin 

B.) Bentham 

C.) Lord Denning 

D.) Phipson 

24.) An accomplice is unworthy of credit unless he is corroborated in material particulars is a 

A.) presumption of fact 

B.) presumption of law 

C.) conclusive proof 

D.) none of the above 

25.) Patent ambiguity in interpreting documents renders it 

A.) curable 

B.) in-curable 

C.) curable and in-curable 

D.) none of the above 

26.) Promoting enmity bteween different groups on grounds of religion, race, place of birth, residence, language, etc and doing acts prejudicial to maintenance of harmony is an offence under which provisions of the Indian Penal Code 

A.) Section 120A 

B.) Section 120B 

C.) Section 153A 

D.) Section 226 

27.) The gist of this offence is meeting of minds 

A.) Section 120A 

B.) Section 133 

C.) Section 221 

D.) Section 340 

28.) A places men with firearms at the outlets of a building and tells B that they will fire at B if B attempts to leave the building. What is the offence commited by A as against B 

A.) wrongful restrain 

B.) wrongful confinement 

C.) refusal to leave the place 

D.) none of the above 

29.) Adulteration of food or drinks intended for sale is punishable under 

A.) Section 227 

B.) Section 272 

C.) Section 277 

D.) Section 273 

30.) Voluntarily causing grievous hurt to deter public servant from his duty is 

A.) cognizable and non-bailable offene 

B.) non-cognizable and bailable offence 

C.) cognizable and bailable offence 

D.) none of the above 

31.) A obtains property from Z by saying-“Your child is in the hands of my gang and will be put death unless you send us Rupees 10,000”. This offence is 

A.) Robbery 

B.) Extortion 

C.) Dacoity 

D.) none of the above 

32.) Which provision under Criminal Procedure Code, 1973 deals with the procedure to be adopted by the magistrate to record confessions and statements? 

A.) Section 164 

B.) Section 162 

C.) Section 163 

D.) Section 164 A 

33.) Any police officer may without any order from a Magistrate and without a warrant, arrest any person who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape from lawful custody under which section 

A.) Section 41 (a) 

B.) Section 41 (c) 

C.) Section 41 (e) 

D.) Section 41 (d) 

34.) The plea bargaining is applicable only in respect of those offences for which punishment of imprisonment is up to a period of 

A.) 7 years 

B.) 2 years 

C.) 10 years 

D.) 5 years 

35.) The right to lodge a caveat is provided under which section of CPC 

A.) Section 148 

B.) Section 148 A 

C.) Section 153 

D.) Section 153 A 

36.) Which of the following is stated under section 100 of CPC 

A.) An appeal may lie under this section from an appellate decree passed ex parte 

B.) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal. 

C.) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question 

D.) All of the above 

37.) An appeal lies to the Supreme Court of India under Section 109 CPC in the case if 

A.) that the case involves a substantial question of law of general importance 

B.) that in the opinion of the High Court the said question needs to be decided by the Supreme Court 

C.) both a and b are correct 

D.) only b is correct 

38.) The rejection of plaint is defined under 

A.) order 7 rule 11 

B.) order 7 rule 12 

C.) order 7 rule 13 

D.) order 7 rule 14 

39.) Criminal conspiracy has been defined under which Section of IPC 

A.) 120 A 

B.) 120 B 

C.) both a and b 

D.) none of a and b 

40.) The provisions for emergency has been defined under which chapter of the Indian Constitution 

A.) 17 

B.) 18 

C.) 19 

D.) 20 

41.) The punishment for defamation has been defined in which Section of CPC 

A.) 499 

B.) 500 

C.) 501 

D.) both a and b 

42.) Fundamental duties has been taken from the constitution of which country 

A.) U.S.A. 

B.) USSR 

C.) U.K. 

D.) Australia 

43.) A  party to the suit is called 

A.) accused 

B.) plaintiff 

C.) litigant 

D.) complainant 

44.) The temporary release of a prisioner is called 

A.) parole 

B.) amnesty 

C.) discharge 

D.) pardon 

45.) In the year 2002 the competition act was enacted replacing 

A.) trade marks act 

B.) copyright act 

C.) contract act 

D.) MRTP act 

46.) The Supreme court held that evidence can be recorded by video-conferencing in the case 

A.) State of Maharashtra vs. Prafull B.Desai 

B.) paramjit kaur vs. state of punjab 

C.) pappu yadav vs stae of bihar 

D.) bachan singh vs. state of punjab 

47.) The right of a party to initiate an action and be heard before the court of law is called 

A.) right in rem 

B.) right in personam 

C.) fundamental rights 

D.) locus standi 

48.) Under which section police has the power to arrest without warrant 

A.) S.41 

B.) S.42 

C.) S.41D 

D.) S.43 

49.) In which section criminal conspiracy is defined 

A.) S.120A 

B.) S.120B 

C.) S.52A 

D.) S.229A 

50.) In which section concealing design to commit offence punishable with imprisonment 

A.) S.120 

B.) S.115 

C.) S.118 

D.) S.119 

51.) A debtor owes several distinct debts to the same creditor and he makes a payment which is insufficient to satisfy all the debts . in such a case, question arises as to which particular debt the paymnt is to be appropriated. which sections of the contract Act provide an answer to this question 

A.) section 59 to 61 

B.) section 22 of 31 

C.) section 10 to 12 

D.) section 55 to 60 

52) What property cannot be transferred under S.6 of Transfer of Property act, 1882 

A.) an easement apart from the dominant heritage 

B.) an interest in property restricted in its enjoyment to the owner personally 

C.) a right to future maintenance, in whatsoever manner arising, secured or determined 

D.) all of the above 

53.) A transfers property of which he is the owner to B in trust for A and his intended wife successively for their lives, and, after the death of the survivor, for the eldest son of the intended marriage for life, and after his death for A’s second son. can the interest so created for the benefit of the eldest son take effect? 

A.) yes 

B.) no 

C.) it is a valid transfer 

D.) none of the above 

54.) The commencement of arbitral proceedings is not dependant on interim relief being allowed or denied under S.9 of the Arbitration and Conciliation Act, 1996 Supreme court in which cases held so 

A.) Firm ashok traders & anothers v. Gurumukh das saluja 7 others 

B.) M.M.T.C ltd v. sterile Industries (India) ltd 

C.) Natinal thermal power corporation v flowmore (P) ltd 

D.) magma leasing ltd v. NEPC Mico Ltd 

55.) Which provision of the hindu marriage act, 1955 deals with conciliation 

A.) S.23 

B.) S.23(2) 

C.) S.23(3) 

D.) S.22 

56.) Which section under the Civil Procedure Code, 1908 deals with the settlement of disputes outside the court 

A.) S.98 

B.) S.99 

C.) S.89 

D.) S.88 

57.) Equal pay for Equal work-can be enforced through 

A.) Art.39 

B.) Art.14&16 

C.) Art.311 

D.) Art.309 

58.) The executive power of every state shall be so exercised as to ensure compliance with the laws made by Parliament and any existing laws -mentioned underA.) Art.32 

B.) Art.256 

C.) Art.254 

D.) Art.301 

59.) Justice Ramanandan committee relates to 

A.) Union state relations 

B.) creamy lawyer 

C.) finance commission 

D.) elections 

60.) Original jurisdiction of the Supreme court is dealt under 

A.) Art.226 

B.) Art.130 

C.) Art.131 

D.) Art.124 

61.) Laws declared by the Supreme Court shall be binding on all courts-mentioned under 

A.) Art.142 

B.) Art.143 

C.) Art.136 

D.) Art.141 

62.) According to the theory of ‘social utilitarianism’ as propounded by ilhering 

A.) the greatest number of people should get greatest pleasure 

B.) the essential body of legal rule is always based upon social facts of law 

C.) a balance is to be struck between the competing interests in society 

D.) law is a means to social ends 

63.) Obstructing public servant in charge of his public functions is a 

A.) non bailable offence 

B.) bailable offence 

C.) civil wrong 

D.) none of the above 

64.) Compensation to victim of crime under criminal law relates to 

A.) S.336 

B.) S.331 

C.) S.335 

D.) S.357 

65.) What person may be charged jointly and tried together under S.223 of CrPc 

A.) persons accused of the same offence committed in the course of the same transaction 

B.) person accused of an offence and person accused of an abetment of or attempt to commit such offence 

C.) person accused of different offences committed in the course of the same transaction 

D.) all of the above 

66.) “Contravention of contract labour Act would not create an employment relationship between contract labour and principal establishment “. it was so held in which case 

A.) SAIL vs. National Union Water front Workers 

B.) Air India STatutory corporation vs. United Labour Union & Ors 

C.) Bangalore water supply and sewerage Board vs. A.rajappa 

D.) State of U.P vs jai bir singh 

67.) The principal regulator envisaged under the Trade Union Act, 1926 

A.) regulator of trade union 

B.) inspector of trade union 

C.) registrar of trade union 

D.) industrial relations committee 

68.) A teacher is not a workman falling under the category of Workman under Industrial Disputes Act, 1947. this was upheld in which case 

A.) Miss A. Sundarambal v. Government of Goa, Daman and Diu & others 

B.) Ahmedbad Pvt. Primary teachers Association v. Administrative officer and ors 

C.) University of Deldi v. Ramnath 

D.) Secretary, Madras Gymkhana club Employees Union v. Management of The Gymkhana 

69.) The type of disablement envisaged under the Employees Compensation Act that reduces the capacity to work in any employment similar to that the worker was performing at the time of the accident is referred to as 

A.) Permanent partial disablement 

B.) Permanent total disablement 

C.) temporary disablement 

D.) Temporary total disablement 

70.) The contribution payable under the ESI Act in respect of an employee shall compromise of 

A.) contribution payable by the employer only 

B.) contibution payable by the employee only 

C.) contribution payable by government only 

D.) contribution payable by employer and employee 

71.) Which provision under the Industrial Disputes Act, 1947 guarantees the right of workmen laid off to claim for compensation 

A.) S.25-0 

B.) S.26 

C.) S25-C 

D.) S.25-M 

72.) Natural law is the idea that 

A.) there are rational objective limits to the power of legislative rulers 

B.) there are no limit to the power of legislative rulers 

C.) there are limits to the power of the executive laid by the legislature 

D.) law is the command of the sovereign 

73.) H.L.A Hart’s name is associated with the book 

A.) Province and Function of law 

B.) The Concept of law 

C.) Social Dimensions of law 

D.) Theories of Social Change 

74.) Section 9 of the Hindu Marriage Act,1955 deals with 

A.) Restitution of Conjugal Rights 

B.) Void Marriages 

C.) Judicial separation 

D.) Ground of divorce 

75.) Daughter is equated with the son with reference to joint family property under 

A.) Hindu Succession Amendment Act 2002 

B.) Hindu Succession Amnedment Act 1976 

C.) Hindu Succession Amendment Act 1978 

D.) Hindu Succession Amendment Act 2005 

76.) Mubara’at under muslim law refers to 

A.) Divorce at the instance of wife 

B.) Cruelty 

C.) Dissolution of marraige with mutual consent 

D.) Ila 

77.) The discrimination aspects of S.10 of Indian Divroce Act(now divorce act) was removed by substituting new section by the 

A.) Indian Divorce Amendment Act of 2001 

B.) Divorce Amendment Act of 2002 

C.) Indian Divorce Amendment Act of 2006 

D.) Indian Divorce Amendment Act of 2012 

78.) Trading activities of a company were stopped temporarily in view of the trade depression with an intention to continue the same when the conditions improve. A petition was preffered into the tribunal for winding up of the company. The petition 

A.) Is liable to be dismissed 

B.) will succeed 

C.) will be kept pending till the conditions improve 

D.) will not be admitted 

79.) Amalgamation of Companies in National Interest is dealt under 

A.) Section 388 of the companies act 

B.) Section 378 of the companies act 

C.) Section 396 of the companies act 

D.) Section 390 of the companies act 

80.) Under Section 171 of the Companies Act, a general meeting of a company may be called by giving a notice in writing for not less than 

A.) 21 days 

B.) 30 days 

C.) 40 days 

D.) 14 days 

81.) A private limited company limits the number of members to 

A.) 30 

B.) 200 

C.) 40 

D.) 150 

82.) Contributory negligence means 

A.) The failure by a person to use reasonable care for the safety of either of himself or his property 

B.) Volunteer to pay the negligence of others 

C.) Contributing the money or money’s worth for others wrongs 

D.) Inciting others to commit civil wrong 

83.) Where an enterprise is engaged in a hazardous or inherently dangerous activity and harm results to anyone on account of an accident in the operation of such hazardous or inherently dangerous activity resulting, for example in escape of the toxic gas the enterprise is strictly and absolutely liable to compensate all those who are affected by the accident and such liability is not subject to any of the exceptions which opeate visa vis-a-vis the tortious principal of strict libility- Heldin the case of 

A.) Francis caroli Vs state 

B.) Shriram food and fertiliser case 

C.) PUCl vs Unon of India 

D.) state of punjab Vs. Mahinder Singh Chawla 

84.) ” A tort is a civil wrong for which the remedy is an action for unliquidated damages and which is not exclusively the breach of a contract, or the breach of a trust, or the breach the breach of merely equitable obligation”- whose statement is this 

A.) winfield 

B.) Salmond 

C.) Pollick 

D.) Griffith 

85.) Under section 20 of the M.V. Act. If a peson is convicted of an offence punishable under section 189 of the Motor vehicleAct, the court shall ordinarily order for 

A.) imposing penalty only 

B.) punishment only 

C.) both punishment and penality 

D.) Disqualification under the act 

86.) Consumer Protection Act was brought into operation in the year 

A.) 1987 

B.) 1986 

C.) 1985 

D.) 1984 

87.) Under consumer protection act, the jursidiction of the district forum should not exceed rupees 

A.) fifty thousand 

B.) twenty five thousand 

C.) one lakh 

D.) twenty lakhs 

88.) The second principle of Rule of Law (of A.V.dicey) relates to 

A.) Equalprotection of the laws 

B.) Equality before law 

C.) dignity of the individual 

D.) Administrative courts 

89.) If a Quasi-Judicial authority violates the principles of natural justice, the appropriate writ would be 

A.) mandamus 

B.) habeas corpus 

C.) quo warranto 

D.) certiorari 

90.) A seven member bench of the supreme court unanimously struck down clauses 2(d) of Art.323 A and clause 3(d) of Art 323B of the constitution relating to tribunals which excluded the jurisdiction of High Court and Supreme Court. The court held that power of judicial review over legislative action is vested over high court under Art.226 and in the supreme court Under Art.32. This is an integral part of the basic structure of the constitution. Name the case 

A.) L.chandra kumar vs union of India 

B.) kihota hollohan vs zachillhu 

C.) nagraj vs State of A.P. 

D.) rajendra sing rana vsswami prasad maurya 

91.) Accepting any other satisfaction than the performane originally agreed is known as 

A.) reciprocal agreement 

B.) reciprocal acceptance 

C.) reciprocal accord and satisfaction 

D.) accord and satisfaction 

92.) “Where two parties have made a contract which one of them has broken the damage which the other party ought to receive in respect of such breach of contract should be either such as may fairly and reasonably be considered arising naturally i.e. according to the usual course of things from such breach of contract itself or such as may reasonably be supposed to have been in the contemplation of the parties at the time they made the contract as the probable result of breach of it” In which case the principle ws down so 

A.) clegg v hands 

B.) kapur chand v. himayat ali khan 

C.) frost v.knight 

D.) hadley v baxendale 

93.) When a misrepresentation has been made, what are the alternative courses open to an aggrieved 

A.) He can avoid or rescind the contract 

B.) he can affirm the contract and insist on the misrepresentation being made 

C.) he can rely on upon the misrepresentation, as a defence to an action on the contract 

D.) all of the above 

94.) A Solicitor sold certain property to one of his clients. The client subsequently alleged that the property was considerably overvalued and his consent was caused by _______. The court considered the relation between the parties to reach the decision. 

A.) Coercion 

B.) Misrepresentation 

C.) Undue Influence 

D.) Estoppel 

95.) “The law of contract is intended to ensure that what a man has been led to expect shall come to pass, that what has been promised shall be performed”. Whose statement is this? 

A.) Lord Black 

B.) Henderson 

C.) Anson 

D.) Salmond 

96.) Intention not to create a legal obligation was clear from the conduct of the parties which among the popular cases deals on the topic. 

A.) Balfour v. Balfour 

B.) Dobogue v. Stevenson 

C.) Derry v. Peek 

D.) Birch v. Birch 

97.) According to the Indian Law in a lawful contract, consideration 

A.) must move from promisee only 

B.) may move from promisee or any other person 

C.) is not necessary at all 

D.) none of the above 

98.) Raghav owes Murli Rupees 10,000. This debt is time barred by the Limitation Act. Even then Murli, promises in writing to pay Raghav Rupees 4,500 on account of debt and signs the document. This contract is 

A.) enforceable 

B.) unenforceable 

C.) void 

D.) none of the above 

99.) An agency can be terminated by 

A.) Expiry of time 

B.) Death of either party 

C.) Fulfilment of object 

D.) all of the above 

100.) Which type of loss is not covered by a contract of indemnity 

A.) Loss arising from accidents like fire or perils of the sea 

B.) loss caused by the promisor himself or by a third party 

C.) loss arising by human agency 

D.) none of the above 

Answers 

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

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This article is written by Avishek Mehrotra, a second-year student of Symbiosis Law School, Pune.

Introduction and Background

The term “Rule of Law” is derived from the French phrase ‘La Principe de Legalite’ (the principle of legality) which refers to a government based on principles of law and justice as opposed to the arbitrariness of a ruler.  The concept of Rule of Law in its most fundamental sense is the foundation upon which modern democratic society is founded and seeks to establish. The principle of Rule of Law vests in a state that is governed by laws and not by the arbitrary actions of men. The Rule of Law is a crucial component in a list of items that make up contemporary political ideals; other items in this list include democracy, human rights, and the principles of the free-market economy.^[1]

“Rule of Law symbolizes an enlightened civilized society’s efforts and quest to combine that degree of liberty without which law is tyranny with that degree of law without which liberty becomes license.”^[2]

Origin

The genesis of the Rule of Law can be dated back to the 13^th century A.D. when Henry de Bracton, a judge in the reign of Henry III said that the King ought to be subject to God and law as it is the law which has made him King however, he did not use the phrase Rule of Law, therefore the credit of originating the concept of Rule of Law has been bestowed upon Edward Coke who said that the king must be under God and law and thus vindicated the supremacy of law over the pretensions of the executives.

But a detailed analysis of the concept of Rule of Law was done by Professor A.V. Dicey who in his book “Introduction to the Study of the Law of the Constitution” published in the year 1885 tried developing the concept of Rule of Law. According to Dicey no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary Courts of the land^[3]. He advocated the fact that law is the supreme and not much discretionary powers should be vested in the executives as where there is too much concentration of power there is scope of arbitrariness i.e. misuse of power due to which the liberty is violated.

Content

Dicey’s theory of Rule of Law consists of three basic principles

(i) The supremacy of law– Dicey believed that Rule of Law stands for absolute supremacy of law. No person, irrespective of his position whether he is a common man or government authority is bound to obey the law. No one should be punished except for the breach of law and that the alleged offence is proved before the ordinary court following the due procedure.

(ii) Equality before law– It means the equal subjection of all class of people to the law of the land administered by the ordinary courts. No man is above the law and would be treated equally in the eyes of law irrespective of their pedestal in life.

(iii) The predominance of Legal Spirit– The phrase legal spirit refers to the spirit of justice. This concept advocates the principle that law should be according to justice and not vice-versa. He was against providing rights such as the right to personal liberty, freedom, etc. in the written constitution of the country. The constitution is not the source but the consequence of the rights of the individuals^[4] thus these rights should be a result of the judicial decisions.

Criticism of Dicey’s Theory

Professor A. V. Dicey’s theory which was so acceptable to the penchant of nineteenth-century individualism, has been a subject of critical inquiry in later years. Several fallacies have been alleged by various academicians and theorists in the findings and claims made by A.V. Dicey:

• W.Paton

He stated that the constitution of the UK as a result of political struggle and not a result of logical deductions from the Rule of Law^[5]. Dicey on the other hand had stated that Rule of Law was in mind while framing the constitution of while framing the constitution and this was why there was a preamble UK and that is why there was a Preamble. This claim was vehemently opposed to by G.W. Paton in the words:

“These are undoubtedly the characteristics of the past and are not logical deductions from a rule of law. For law may have a varying content; it may protect the subject against despotism or give the most ruthless power to a tyrant. It is not enough for the democrat to demand a rule of law–everything depends on the nature of that law. Every legal order which functions as a rule of law; applies to the Nazi state as well as a democracy.” ^[6]

• Wade and Forsyth

They advocate that there was no equality of law in stricto sensu even in England as there were many immunities given to the King following the principle of Rex Non-Protest Peccare, ‘The King Can Do No Wrong’. Dicey was criticized for turning a blind eye to the immunity so provided to the King and stating the concept of equality before the law (which is indeed a major postulate of rule of law) as being existent in England.

• W.I. Jennings

He criticized each of the three suggested meanings of Rule of Law as propounded by Dicey in his book. ^[7]

The first meaning allocated to the Rule of Law was the supremacy of law i.e. law as opposed to arbitrary power to exclude the existence of wide discretionary powers on the part of the government. However Dicey failed to distinguish between arbitrary and discretionary powers as even during Dicey’s period wide discretionary powers were vested in public authorities. The legislative power of the parliament also was exercised according to a discretion vested in the same.

Secondly, Dicey pointed out that every man is subjected to the ordinary laws of the realm enforced in ordinary tribunals. Here Dr. Jennings drew our attention to the increasing practice of vesting powers of adjudication in administrative tribunals and boards and the immunity given to the public officers in the exercise of their duties.

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Thirdly, Dicey says that the general principles of the constitution in England are the result of the ordinary laws of the land that is to say that they are a result of judicial decisions. Dr. Jennings termed this as being an overstatement because Dicey herein has concentrated his thinking to only special individual rights namely freedom of speech etc. Whereas in reality, the most important principles underlying the British Constitution are not judge-made at all. ^[8]

Development of Rule of Law in India

Constitutional provisions

In India, the concept of Rule of Law can be traced back to Upanishads. Its traces can also be found in the epics like Mahabharata and Ramayana, Ten Commandments, Dharma Chakra and other seminal documents. In modern times there are no drafts in which Rule of Law is directly discussed or mentioned. The Rule of Law as administered in India is interpreted to be embodied within several provisions of the Constitution. The framers of our Constitution were not only familiar with the postulates of Rule of Law as propounded by Dicey but also as modified by its action in British India. Constitution is the grundnorm of the country from which all other laws derive their authority, thus acting subservient to it and upholding the postulates of Rule of Law that is envisaged under the Constitution of India. Further Article 13(1) states that any law that is made by the legislature has to be made in conformity with the Constitution failing which it will be declared invalid. ^[9] Thus every law that is created has to be in line with the constitutional provisions. The Preamble to our constitution incorporates the word justice, liberty and equality which are a clear indicator of a just and fair system without any existent disparity between the masses irrespective of their stature in life. The equality before the law as enumerated by Dicey is incorporated in Article 14 of the Constitution of India which lays down the principle of equality before law and equal protection of laws^[10]. The right to life and personal liberty which is the basic human right is also guaranteed to every person by the constitution^[11]. 

Judicial Pronouncements

Apart from the constitutional provisions, the judicial decisions have also played a vital role in the understanding and development of Rule of Law in India. Rule of Law is regarded as a part of the basic structure of the Constitution or and, therefore, it cannot be abrogated or destroyed even by the Parliament.^[12] Several jurists have opined that the Rule of Law is the basis upon which our constitution is founded. In one of the cases before the Supreme Court, Justice R.S. Pathak stated that:

It must be remembered that our entire constitutional system is founded on the Rule of Law, and in any system so designed it is impossible to conceive of legitimate power which is arbitrary in character and travels beyond the bounds of reason.^[13]

The judicial decisions have played an indispensable role to counter any arbitrariness on part of the state. In A.K. Kraipak V. Union of India^[14] the Apex Court held that ours being a welfare State, it is regulated and controlled by the Rule of Law. In Maneka Gandhi v. Union of India^[15], the court ensured that the exercise of power in an arbitrary manner by the government would not infringe the rights of the people.  In the E.P. Royappa v State of Tamil Nadu ^[16], Article 14 of the Constitution of India ^[17]was interpreted by the Supreme Court and its ambit was broadened. A new dimension was given to this article and it was considered as a guarantee against arbitrariness. The Apex Court in a subsequent judgment held that Rule of Law embodied in Article 14 of the Constitution is the “basic feature” of the Indian Constitution and hence it cannot be destroyed even by an amendment of the Constitution under Article 368 of the Constitution.^[18]

In line with the third principle of Rule of Law, India has an independent judiciary that keeps a check on the other organs of governance while independently performing its functions. In L Chandra Kumar v Union of India ^[19]the constitutional validity of Article 323A ^[20]and 323B^[21] was challenged on the ground that it is contrary to the spirit of constitution as it excludes the jurisdiction of Supreme Court under Article 32 ^[22]and High court under Article 226 ^[23]of the Constitution of India in matters that were tried by the Central Administrative Tribunal under the said provisions. The court declared the independence of the judiciary to be a part of the basic structure and further the court struck down the amendment to article 323A of the constitution. The Supreme Court in a subsequent case held that disputes as to legality of acts of the Government will be decided by Judges who are independent of the Executive.^[24] And thus, keeping a check on the ultra vires or arbitrary acts of the Government.

The Habeas Corpus Case^[25] was one of the most important cases with regard to the Rule of Law. The question before the Apex Court was regarding whether there is any repository of the Rule of Law in India apart from Article 21 ^[26] in the constitution. The decision of the majority was in negative with regards to this question however, Justice H.R. Khanna gave a dissenting opinion and observed that even in absence of Article 21 in the Constitution, the state has got no power to deprive a person of his life and liberty without the authority of law. 

Analysis

The framers of our constitution had embodied the Rule of Law in the conscience of our constitution. The three wings of the government work in coordination with each other for the establishment of Rule of Law through the system of checks and balances. The judiciary has worked efficiently towards the establishment of Rule of Law and has been equally supported by civilians and government by obeying the laws as laid down by the parliament and interpreted by the judiciary. Though there also have been several instances when the public has resorted to violence against an Act of Parliament or any Judicial pronouncement or doing acts contrary to law which according to their perception is not contrary to Law and Justice, resulting in situations where the principle of Rule of Law has just become a de jure concept while in de facto the Rule of Men has prevailed.

The malicious practice of honor killing is prevalent in the Indian society particularly in northern parts of the country. This practice includes the murder of a member of a family, due to the belief of  the perpetrators that the victim has brought shame or dishonour upon the family, by violating the principles of a community or a religion, usually for reasons such as divorcing or separating from their spouse or for engaging in inter-caste marriage. The decision in this regard is taken by an extra-constitutional body by the nomenclature of Khap Panchayat which engage in feudalistic activities have no compunction to commit such crimes which are offences under the Indian Penal Code, 1860. No heed is paid to the basic human right of “Right to life and liberty” as evident by the actions of the panchayat^[27]. Choice of woman in choosing her partner in life is a legitimate constitutional right. It is founded on individual choice that is recognised in the Constitution under Article 19, and such a right is not expected to succumb to the concept of “class honour” or “group thinking”. It is because the sense of class honour has no legitimacy even if it is practised by the collective under some kind of a notion.^[28]

Several guidelines have been laid down by the court to curb the practice but still there have been numerous instances of honour killing reported and the masses have largely turned a deaf ear to the decision of the Apex Court.

The Sabarimala case verdict throws light upon the discretion of men in abiding by the directions given by the Supreme Court only to the point if they are analogous to the belief they hold. The court had allowed women of menstruating age i.e. between 10-50 years to enter the temple premises for worship^[29]. The Lord Ayappa temple has traditionally barred all women of menstruating age from entering into the shrine. After the verdict massive protest were carried out, there were also occurrences of violence against women who tried to enter the temple. The women were denied their constitutional right to worship and the principles of equality were violated even after the practice was declared as unconstitutional by the Apex Court.

Another evil practice pertinent in the society is that of mob lynching. Lynching, a form of violence in which a mob, under the pretext of administering justice without trial, executes a presumed offender, often after inflicting torture and corporal mutilation. The term lynch law refers to a self-constituted court that imposes sentence on a person without due process of law. Supreme Court described it as horrendous acts of mobocracy ^[30]and stated that “the law, is the mightiest sovereign in a civilized society” ^[31] The majesty of law cannot be sullied simply because an individual or a group generate the attitude that they have been empowered by the principles set out in law to take its enforcement into their own hands and gradually become law unto themselves and punish the violator on their own assumption and in the manner in which they deem fit.^[32] Usually people belonging to religious and caste-based minorities become the victim of this wicked practice. This practice is a present-day example of a lawless society where there is denial of basic human rights as well as fundamental rights.

Besides these, there is a plethora of other instances that are indicative of the adulteration of the indigenous principle.

Conclusion

Thus, on the basis of the aforementioned information it can be undeniably deduced that since its inception, the principle of Rule of Law owing to the dynamism inherent in the very concept itself has evolved at a brisk pace. This development can be accredited to the several laws laid down by the parliament and also through the numerous judicial pronouncements.

However, despite all the development that the concept has undergone, Rule of Law when analysed in the context of India does exist but it cannot be said to be followed in stricto sensu. Instances often come to light when following a particular law becomes subject to public convenience and they subscribe to such law only if it is in line with their perception of right and wrong and is in consonance with the ideologies that they uphold.

Endnotes

^[1] Jeremy Waldron, The Concept and the Rule of Law, Vol. 43, Georgia Law Review,  (2008) available at  https://digitalcommons.law.uga.edu/cgi/viewcontent.cgi?article=1028&context=lectures_pre_arch_lectures_sibley.

^[2] Soli J. Sorabjee’s Lecture at Brandeis University, Massachusetts, April 14th 2010, available at http://www.brandeis.edu/programs/southasianstudies/pdfs/rule%20of%20law%20full%20text.pdf. Last seen on (23/09/2019).

^[3] A.V. Dicey, Introduction to the study of the law of the constitution, (10^th edition, 1985).

^[4] A.V. Dicey, Introduction to the study of the law of the constitution, (10^th edition, 1985).

^[5] G.W. Paton, A Textbook of Jurisprudence, (4^th edition 2004).

^[6] G.W.Paton, A Textbook of Jurisprudence, 139, (4^th edition 2004).

^[7] W.I. Jennings, The Law and The Constitution (5^th edition 1964).

^[8] Edward I. Sykes, The Rule of Law in the modern world, W. Ivor Jennings the Law and The Constitution, Available at http://classic.austlii.edu.au/au/journals/ResJud/1938/12.pdf.

^[9] Art. 13 (1), the Constitution of India.

^[10] Art. 14, the Constitution of India.

^[11] Art. 21, the Constitution of India.

^[12] His Holiness Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala and Anr, AIR 1973 SC 1461.

^[13] Suman Gupta and Ors. Etc v. State of J & K and Ors, AIR 1983 SC 1235.

^[14] A.K. Kraipak and Ors. Vs. Union of India, AIR 1970 SC 150.

^[15] Maneka Gandhi v. Union of India, AIR 1978 SC 597.

^[16] E.P. Royappa v State of Tamil Nadu and Anr, AIR 1974 SC 555.

^[17] Art. 14, the Constitution of India.

^[18] Smt. Indira Nehru Gandhi v. Shri Raj Narain, AIR 1975 SC 2299.

^[19]L. Chandra Kumar v. Union of India, (1997) 3 SCC 261.

^[20] Art. 323A, the Constitution of India.

^[21] Art. 323B, the Constitution of India.

^[22] Art. 32, the Constitution of India.

^[23] Art. 226, the Constitution of India.

^[24] Union of India v. R Gandhi, (2007) 4 SCC 341.

^[25] ADM Jabalpur v. Shivakant Shukla, AIR 1976 SC 1283.

^[26] Art. 21, the Constitution of India.

^[27] Shakti Vahini v. Union of India (UOI) and Ors, AIR 2018 SC 1601.

^[28] Asha Ranjan v. State of Bihar and Ors, (2017) 4 SCC 397.

^[29] Indian Young Lawyers Association and Ors v. State of Kerala and Ors, (2017) 10 SCC 689.

^[30] Tehseen S. Poonawalla v Union of India and ors, AIR 2018 SC 3354.

^[31] Krishnamoorthy v. Sivakumar and Ors, AIR 2015 SC 1921.

^[32] Shakti Vahini v. Union of India (UOI) and Ors, AIR 2018 SC 1601.

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This article is written by Sonali Chauhan, a student of Lloyd Law College, Greater Noida and Aditi Pandey, student of Indore Institute of Law. The author, in this article, has discussed the concept of Labour Laws.

Introduction

Labour law is the area of law which signifies the relationship between a worker, trade union and government at large. It plays a major important role in protecting the rights of labour, their union, their wages, and moreover building a link between government and workers. It is a protective code for laborers, workers, and employees as well, to make them aware of their rights and also, to establish a standard law regarding labour work practice. Labour law is often incorrectly conflated with Employment law. However, Employment law is the area of law that specifically deals with the relationship between an employer and employee.

Labour law is concerned with the establishment of a labour-relations framework that provides peaceful industrial relations between labours and organized workers. It is basically related to the matters of labour-relations, functions of a trade union, an adequate environment of working, conditions under which labours are working, strikes and security of the labour. While Employment law or Employment standards law is concerned with the regulation in statute laws, conditions of the workplace, time of working, wages, and so on, both, Labour law and Employment standard laws are commonly related to workers or employees and their way of working.

Historical Background

Labour law arose parallel to the Industrial Revolution, as a result of conflict between workers and trade union. The relationship between a worker and employer of a small scale production gradually changed to large scale factories. The growth of labour law is an outcome of a constant desire of the worker, to seek better conditions of working to manage an adequate living and the employers need to have a flexible, economic and productive workforce for better production and sales.

The origin of Labour law can be traced back in time around 18th century, where Labour relations had been mentioned in several places by European writers while giving importance to their Guilds and Apprenticeship system, Asian scholars in the Laws of the Hindus by Manu and then several other Latin American authors and writers across the world.

Evolution of Labour Law in India

The labour and employment law in India is also known as Industrial law. In India, the history of labour law is interwoven with the history of British colonialism. The industrial/labour-law enacted by the British was meant primarily to protect the British employers’ interests. Considerations of the British political economy were of course of paramount importance in defining some of these early laws. That’s how the Factories Act came. It is well known that Indian textile products offered stiff competition on the export market to British textiles and, in order to make India labour more expensive, the Factories Act was first enacted in 1883 due to pressure brought on the British parliament from Manchester and Lancashire’s textile magnates. Thus, India received the first stipulation of eight hours of work, the abolition of child labour, and women’s restriction in night work, and the introduction of overtime wages for work beyond eight hours. While the impact of this measure was clearly welfarist, there was no doubt that the real motivation was protectionist.

The Trade Dispute Act, 1929 (Act 7, 1929) was the earliest Indian statute to govern the relationship between an employer and his workmen. Provisions have been made in this Act to limit strike and lockout rights, but no mechanism has been provided to take care of disputes.

In the post-colonial era, the original colonial laws witnessed substantial changes when independent India called for a direct relationship between labour and capital. The content of this partnership was unanimously approved at a tripartite conference in December 1947 in which it was agreed that labour would be provided with a fair wage and fair working conditions and that, in return, capital would receive the fullest cooperation of labour for continuous production and higher productivity as part of the national economic strategy development and that all concerned would observe a truce period of three years free from strikes and lockouts.

Purpose of Labour Legislation

Labour legislation that is adapted to the economic and social challenges of the modern world of work fulfils three crucial roles: 

• It establishes a legal system that facilitates productive individual and collective employment relationships and hence a productive economy. 
• By providing a framework within which employers, workers, and their representatives can interact with work-related issues, it serves as an important vehicle for achieving harmonious industrial relations based on workplace democracy.
• It provides a clear and consistent reminder and the guarantee of fundamental principles and labour rights that have gained broad social recognition and defines the mechanisms through which those principles and rights can be implemented and enforced.

But experience shows that labour laws can only effectively fulfil these functions if they are responsive to the conditions on the labour market and the needs of the involved parties. The most efficient way to ensure that these conditions and needs are completely taken into consideration is when those concerned are closely involved in the legislative formulation by processes of social 6 dialogue. The involvement of stakeholders in this way is of great importance in the development of a broad base of support for labour law and in facilitating its application within and beyond the formal structured economic sectors.

Constitutional Provisions with regard to Labour Laws

Chapters III (Articles 16, 19, 23 & 24) and 7 Chapter IV (Articles 39, 41, 42, 43, 43A & 54) of the Constitution of India have enshrined the relevance of the dignity of human labour and the need to protect and safeguard the interests of labour as human beings by keeping in line with the Fundamental Rights and Directive Principles of State Policy.

Labour is a concurrent subject in the Indian Constitution that means that both the Union and the state government are qualified to legislate and administer labour matters. The Parliament has enacted the majority of important legislative acts.

Concurrent List

Entry no. 55: Regulation of Labour and safety in mines and oil fields.

Entry no. 22: Trade union, industrial and labour disputes.

Entry no. 66: Industrial Disputes concerning union employees.

Entry no. 23: Social security and insurance, employment and unemployment.

Entry no. 65: union agencies and institutions for “Vocational Training”.

Entry no. 24: Welfare of about including conditions of work, provident funds, employers invalidity, and old-age pension and maternity benefit.

Legislation can be categorized as follows: 

1) Labour laws enacted by the Central Government, where it is the sole responsibility of the Central Government to implement them.

2) Labour laws passed by the Central Government and implemented by both Central and State governments.

3) Labour regulations passed by the central government and implemented by the State Governments of the country.

4) Labour laws passed and implemented by the different State Governments which is applicable to the respective States.

The Indian Constitution provides detailed provisions on citizens’ rights and also sets out the Directive Principles of State Policy which set the aim to guide the State’s activities. These Directive Principles stipulate: 

1. To protect the health and strength of men and women employees. 
2. That children’s tender age is not being abused. 
3. That citizens are not forced to enter avocations unfit for their age or strength by economic necessity. 
4. Fair and humane working and maternity relief conditions are provided.
5. The Government shall take steps, through appropriate legislation or by any other means, to secure employee participation in the management of undertakings, establishments or other organizations involved in any industry.

Employment

Employment is referred to as a state of having paid for work. Or in other words, it can be termed as ‘a person who is hired for a wage or salary to work for an employer. Employment is one of the basic necessities of a person to earn money and make a living. Hence, there is a whole different war for employment in the world.

Employment Act

The Employment Act is enforced for several uniform purposes: it protects employee’s rights and set forth the employer’s obligations and responsibilities. Hence, the significance of this act is to regulate uniformity in all aspects of working and Labour strategies in the country.

Labour Law Basic Conditions of Employment Act

The Basic Conditions of Employment Act (BCEA) is an act that is regulated by the parliament and government for the protection of employees being exploited from their employers. For the same, there are certain regulations that are to be followed by employers.

The act also prohibits the Employment of a person under the age of 15 years and puts an obligation on the employer to verify the age of the worker or employee by requesting a copy of the birth certificate.

It includes matters relating to terms of employment, working hours, transport allowances, bonuses, methods of wage payment, overtime, meal intervals, public holidays, medical leaves, maternity leaves, terms of termination of employment, the procedure for termination, etc.

Department of Labour

Department of labour is a federation of the US government which regulates rules and guidelines in order to promote and protect the rights of labour, condition of working, employment opportunities for labourers, wages and security.

DOL works for the ultimate advancement of labour-relations across the world through certain assertions made by the government for its progress and development.

Similarly, in India, this area of action is dealt with the Ministry of Labour and Employment.

Ministry of Labour and Employment

The Ministry of Labour and Employment is known to be one of the oldest and important ministries of the Government of India. The role of the Ministry is to protect and provide necessary safeguards to the interest of the workers in general and to promote a healthy working environment at the workplace for better production or productivity of an organization. Furthermore, its focus is on the promotion of welfare and providing social security to the workers in both organized and unorganized sectors, by the process of liberalization.

At present, there are 44 labour related statutes enacted by the Central Government which deals with minimum wages, accidental and social security benefits, occupational safety and health, conditions of employment, disciplinary action, the formation of trade unions, industrial relations, etc.

Labour Law Working Hours

As per Factories Act 1948, the number of hours of work for a person (who has attained the age of 18years) shall not be more than 48hours a week and 9hours a day.

The Minimum Wages Act, 1948 also specifies working hours a day shall not exceed from 9hours for an adult.

Overtime

Provisions under the Act

Factories Act, 1948

Details on working hours, spread over, and overtime is set out in Sections 51, 54 to 56 & 59 of the Act:

According to Sec. 59, where a worker works in a factory for more than 9 hours in a day or more than 48 hours in a week, he/she shall be entitled to earn wages at the rate of twice his/her ordinary rate of wages in respect of overtime work.

Mines Act, 1952

According to Sections 28 to 30 of the Act, no person working in a mine is allowed or permitted to work in a mine for more than 10 hours in any day, including overtime.

Minimum Wages Act, 1948

•  According to Sec. 33, overtime wages are to be paid at the rate of twice the worker’s ordinary wage rates. This states that the employer could take up to 9 hours of actual work in a 12-hour shift on any day. But he must pay double the rates for an hour or part of an hour of actual work in excess of nine hours or more than 48 hours in any week.
• Section 14 of the Act specifies that any worker whose minimum wage rate is set with wage periods of time, such as hour, day or week, and if a worker works more than that number of hours, is deemed to be overtime. If the number of hours that constitute a normal working day exceeds the specified limit, then the employer will have to pay him at the overtime rate for every hour or part of an hour for which he has worked in excess.

Beedi and Cigar Workers (Conditions of Employment) Act, 1966

According to Sections 17 & 18 of the Act related to working hours, it is specified that working hours, including overtime work, should not exceed 10 hours per day and 54 hours per week.

Contract Labour (Regulation & Abolition) Act, 1970

Under Rule 79 of the Act, it is mandatory for each contractor to maintain a Form XXIII Register of Overtime containing all information relating to the calculation of overtime, hours of extra work, the name of the employee, etc.

Building and Other Construction Workers (Regulation of Employment Service) Act, 1996

According to Sections 28 & 29 of the Act, workers who work overtime will be paid overtime wages at the rate of twice the ordinary wage rate.

Working Journalist (Conditions of Service) and Miscellaneous Provisions Act, 1955

According to Rule 10 of the Act, a working journalist who works in the day shift for more than 6 hours on any day and more than 5 1/2 hours in night shift shall be paid with rest hours equal to the hours he/she has worked overtime.

Plantation Labour Act, 1951

In accordance with section 19 of the Act, where an adult worker works in any plantation on any day beyond the number of hours that constitute a normal working day or for more than 48 hours in any week, he / she shall be entitled to twice the rate of ordinary wages in respect of such overtime work. Provided no such worker is permitted to work in any day for more than 9 hours and in any week for more than 54 hours.

Women and Work Hours

Section 66 of the Factories Act, 1948 places a limit on women’s employment from 7 p.m. to 6 a.m. However the Chief Inspector is empowered to grant relief, but women are not allowed to work from 10.00 pm to 5.00 am in that situation.

Workdays and Break Period

Law says about Working days 

Factories Act, 1948 stipulates that weekly holiday on the first day of the week, which is Sunday or maybe any other day, as may be approved in writing by the Chief Inspector of Factories, is necessary for a particular area.

Section 52 provides for the substitution of a weekly holiday so that by meeting the requirements of this section, workers may be allowed to work on the day of the weekly holiday. The provision also states that compensatory holiday is allowed instead of an unveiled weekly holiday.

Law says about Breaks

In accordance with the provisions of the Factories Act, 1948, a rest period of at least half an hour should be given in such a way that no working time exceeds 5-1/2 hours.

Under the Minimum Wages Act, an adult worker’s working day shall be calculated in such a way that it shall not exceed 12 hours on any day, including the interval of rest.

Work hours of young workers

According to the Factories Act, 1948, the young person is defined as “child” or “adolescent” (a person who has reached the age of 15 but has not reached the age of 18). This states that child working hours are restricted to 4-1/2 hours per day. It also stipulates that the spread-over should not exceed five hours. However, the provisions of the Act states that female child workers are prohibited from working between 7.00 p.m. to 8.00 am as per section 71.

According to the Minimum Wages Act, 1948, the number of working hours for adolescents is set by the medical practitioner as approved by the government, which chooses to consider adolescents as adults or children. Nevertheless, the child should not be allowed to work on any day for more than 4-1/2 hours.

Labour Laws for Employees

Labour and Employment Laws in India are governed by the Constitution of India; specific laws are given by Central and State governments, Municipal laws, individual agreements, and so on.

• As per based on the terms and conditions of employment, there are several Acts and Legislations, which are laid down for proper redressal of a cause:
• The Factories Act, 1948
• Shops and Establishment Act, 1954
• Contract Labour (Regulation and Abolition) Act, 1970
• Industrial Employment Standing Order Act, 1946
• Building and Other Construction Workers (Regulation of Employment and Condition of Service) Act 1996 

• Legislations and Acts based on Industrial Relations:
• Industrial Disputes Act, 1947 (IDA)
• Trade Unions Act, 1926

• Legislations and Acts based on Remuneration:

• Payment of Wages Act, 1936
• Minimum Wages Act, 1948
• Payment of Bonus Act, 1965
• Equal Remuneration Act, 1976 (ER Act)

• Legislations and Acts based on Social Security Benefits of the Employees: 

• Payment of Gratuity Act, 1972
• Workmen’s Compensation Act, 1923
• Employees Provident Fund and Miscellaneous Provisions Act, 1952
• Employees’ State Insurance Act, 1948

Hence, there are many other Acts, Legislations and Central Labour laws under the Ministry of Labour and Employment.

There are many other International Acts and Legislations, which are regulated for the purpose of protection and promotion of the workforce for their rights and interests at the workplace. Employment Equity Act is one of the most efficient Acts which regulates the rights of the workers and employees and ensures social security to them.

Employment Equity Act

The Employment Equity Act is an act laid down by the government to ensure “Equity at the workplace” and to promote Equal opportunity and fair treatment in employment by eliminating discrimination and unfair monopolies. Also, it looks forward to implementing necessary measures to redress and resolve the disadvantages of employment experienced by a delegated group and to ensure their equitable representation in the workplace.

The basic aim of the Act is to regulate uniformity within an organization or workplace where people are delegated as per their skills and remuneration in a fair and non-discriminatory manner. Furthermore, the act deals with the process of recruitments and advancement within the business and manages it for its function.

Employee Representation

Employee Representation is referred to as the Right of employees to form a union or choose an individual representative of their group, who can represent them for the purpose of negotiating with the management in the matters of wages, working hours, overtime, facilities, working conditions, and security.

In the workplace, workers may be represented by trade unions or other representatives:

•  On disciplinary and grievance matters
•  On works councils or other consultative bodies
•  For the collective bargaining of terms and conditions
•  For making workforce agreements
•  On joint working groups.

Trade Union

Trade Union is defined as a union formed by the workers or employees to represent a specific group of workers for the purpose of protection of their common interests. They help workers in matters like Fair pay, good working environment, working hours and benefits. Trade Unions are also called Labour Unions.

Labour Unions are formed to protect the interest of workers, financially and otherwise. They bargain and negotiate form the employers on behalf of the Employees for the welfare of the latter. 

Employee Representation on the Board of Directors

Employee Representation on the board of directors refers to the Right of the Employees to choose their representative for the purpose of representing them before the employer.

Work Council

Work Council refers to an organization that represents the employees on a local level. It also provides a useful collective bargaining tool for representation.

Employee Board

Employee board is the board of directors that governs over individual employees based on their work, skills, and performance. It is a link between employer and employee and also the government. Its function is to bridge the gap between employer and employee and their dissatisfaction.

Labour Relations Act

Labour Relations Act is an act that regulates Labour relations and collective bargaining in private sectors. The main feature of this Act is to provide an outline of the labour relations rights and responsibilities of employers, trade unions and employees.

The Labour Relations Act confers several authorities to labour relations board such as: to certify the unions for representing their employees, revocation of certification of the union, and so on.

Industrial Relations

Industrial Relations stand for the relationship between management and workers in the industry. Good industrial relations results in a healthy and positive working environment which further results in better productivity and sales of goods.

Industrial Relations play a very important role in shaping an organization and its working. It develops better unions, and the collection efficiency of the workers is enhanced.

Objectives of Industrial Relations

•  Some of the major objectives of Industrial Relations are:
•  Enhances production
•  Reduces Industrial disputes
•  Minimize Wastage
•  Better working environment
•  Utility of resources

•  Also, Industrial Relations benefit the employees in many different ways, such as:
•  Collective bargaining
•  Employee welfare
•  Enhance the level of working 

Importance of Labour Relations in Human Resource Management

Human Resource is termed as the individuals or the other workforce of an organization that works for the management, recruitment, reward, on loading, training, performance, motivation, and so on. The main function of the Human Resource Management of an organization is of selecting, providing orientation, maintaining proper relations with workers and trade unions, compensation, look over the safety, security and working mechanics of the employees.

Labour Relations play a very significant role in Human Resource Management. It enhances the productivity of the organization over time just by in building good Labour Relations. Since, good Labour relations provide better synchronization among workers or employees and develop a better working environment, ensuring adequate facilities, security, health and sanitation to the Labours which ultimately turns out into quality production and sale.

Purpose of Labour Relations

The purpose of Labour Relations is to maintain healthy relations between the employees, management and the employer in every aspect to promote the productivity of an organization and develop its working. It also promotes marketing and globalization at a certain level of work, which is beneficial for a company or organization.

Discrimination

Discrimination among workers or employees is quite commonly encountered in the workplace. Such discrimination can be based on skills, target, achievements, majority, race and even between specific groups of the worker. Discrimination is one of the biggest loopholes behind an average production or slow-growing organization. It can turn out to be admissible unhealthy among the Labours to have poor relations which affect their unity and integrity at the workplace.

Are employees protected against discrimination? If so, on what grounds is discrimination prohibited?

The Indian Constitution grants Indian people several constitutional rights, such as the right to equality, the State’s prohibition against discrimination on the grounds of religion, ethnicity, caste, sex or place of birth, and allows the State to frame laws that favour the underprivileged. Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act,1995 forbids all forms of discrimination against persons with disabilities during the recruitment, pay promotion, etc. The ER Act has been introduced to eradicate gender bias and ensure an equal salary to men and women for the same work. Likewise, the Maternity Benefit Act of 1961 and the Sexual Harassment of Women at Work (Prevention, Prohibition and Redressal) Act of 2013 protects the rights may include women workers in India. The applicability of these laws may differ between public and private entities. While certain forms of discrimination in all sectors are universally illegal, certain types of caste-based discrimination, ethnicity, and religion are still prevalent in private sectors.

What type of discrimination are unlawful and in what circumstances?

The Indian Constitution prohibits discrimination on the grounds of religion, ethnicity, caste, gender, and place of birth. Therefore, it is unlawful to contravene any clause of the ER Act that leads to discrimination between men and women. Therefore, any discrimination that is not based on ability or merit and that is not exercised to uplift any category or class but merely to inflict bias to one of the parties is deemed to be unlawful.

Are there any defences to a discrimination claim?

A claim of discrimination does not have standard defences. On the basis of facts and circumstances, however, a defence of disparity in the nature of work, workplace, health and safety standards, and the need for affirmative action can be regarded as legitimate grounds for defence.

How do employees enforce their discrimination rights? Can employees settle claims before or after they are initiated?

Employees may approach courts or tribunals on the basis of the nature of discrimination and file lawsuits to enforce their rights of discrimination. In some situations, the concerned organization/workplace may have labour/HR policies in place that allow these discriminated workers to contact a grievance redressal committee or a helpline to address discrimination-related grievances. In most cases, the employer can settle disputes before or after a lawsuit has been filed.

What remedies are available to employees in successful discrimination claims?

An employee has access to the remedies depending on the nature of the claim and the statute that gives the employees the right to claim. Most laws provide for pecuniary fines and terms of imprisonment if any of its provisions are infringed. In cases where discrimination has resulted in job termination, a successful claim of discrimination will entitle the aggrieved person to restore his/her job.

Do “atypical” workers (such as those working part-time, on a fixed-term contract or as a temporary agency worker) have any additional protection?

No, “atypical” employees are not given any additional protection. Such employees are safeguarded by the same set of laws as any typical worker or employee in the organization. Nevertheless, the organizational policies and regulations that apply to such employees may vary. There are certain state-specific or region-specific laws covering even vulnerable employees who do not fall into any of the categories of workers identified in question, such as the Maharashtra Mathadi, Hamal, and Other Manual Workers (Employment and Welfare Regulation) Act, 1969 or the Pimpri-Chinchwad District, Hamai, and Other Manual Workers (Regulation of Employment and Welfare) Scheme, 1992.

Maternity Leave

Maternity leaves are basically paid leave provided to women during pregnancy, childbirth or even after childbirth for the protection of their interest in employment and health at the same time. The concept of Maternity Leave has made to be mandatorily applied to women employees in India. Maternity leaves are mainly governed by the Maternity Benefits Act, 1961 that applies to all shops and establishments having 10 or more than 10 female workers.

Under this Act, it is required to inform the women in writing and digitally about their rights to avail such leaves during maternal phases, at their joining at the workplace.

How long does maternity leave last? 

Recently, the Ministry of Labour and Employment revised the Maternity Benefit Act, 1961 (“Maternity Act”) to extend the length of paid maternity leave available for female employees from 12 to 26 weeks. Any female employee who has been in the employer’s employment for 80 days in the past 12 months is eligible to take the benefit. That advantage can be used as soon as eight weeks before the expected date of delivery. Maternity leave has also been extended to adoptive mothers where every woman who adopts a child has the right to a maternity leave of 12 weeks from the date of adoption.

Who can take maternity leave?

Maternity Leave can be taken by pregnant women and women at the phase of childbirth or even pre and post phase to delivery. The only obligation for availing this benefit is to work at least for the duration of 12 months prior to that.

What rights, including the rights to pay and benefits, does a woman have during maternity leave?

In accordance with the provisions of the Maternity Act, for the time of her actual absence, a female employee is entitled to the average daily wage. If the nature of the work is such that the employee may work from home, the employer may extend this comfort to female employees on the basis of the mutual agreement between the employer and the employee. Therefore, female employees are also entitled to a medical bonus in case of prenatal or post-natal benefits that are not provided by the employer. The Maternity Act bars the employer from (i) discharging or firing a female employee, or (ii) changing the terms of employment to her disadvantage during the maternity leave period.

What right does a woman have upon her return to work from maternity leave?

A female employee is entitled to two nursing breaks in a day after rejoining the job, an addition to the rest period allowed by the employer during her daily work. The female employee will earn this benefit until the baby reaches the age of 15 months. Apart from this benefit, each establishment with 50 or more employees shall have a creche facility either separately or together with common facilities within a prescribed distance. The employer will allow the employee to visit the creche for four times a day, which will also include the rest period. Every such establishment shall, at the time of the female employee’s initial appointment, intimate in writing the benefits and facilities provided by the employer in this regard.

Do fathers have the right to take paternity leave?

No, in Indian employment laws the concept of paternity leave does not exist. However, the All India and Central Civil Rules, allow 15 days of paternity leave for central government employees. Various corporate offices in India may extend paternity leave to their employees in accordance with internal leave policies. The Paternity Benefit Bill, 2017, presented to Parliament, pushes both the mother and the father for equal “parental” benefits.

Are there any other parental leave rights that employers have to observe?

In addition to the benefits and leaves offered under the Maternity Act, no other legislation is required to be observed by the employers.

Are employees entitled to work flexibly if they have responsibility for caring for dependants?

There is no statutory law requiring employers to provide their employees with flexible working hours. Nevertheless, employer organizations may offer a range of benefits to their employees as a matter of internal policy and based on performance and employees’ requirements.

Maternity Leave in the Private Sector

Maternity benefits in the private sector are regulated by the Employees State Insurance Act, 1948 and Maternity Benefits Act, 1961. Under which there are provisions for taking maternity leave for the longest of 26 weeks, which are laid down for the protection of working women and women workers who have more than two living children.

Maternity Leave for Government Employees

Maternity leave for government employees consists of similar provisions to that of any other female employees at the workplace. The government of India has regulated several Acts for the protection and promotion of women at the workplace. The government has also enhanced the duration of paid maternity leave from 12 weeks to 26 weeks for up to two surviving children under the ESI Act, 1948. 

Termination of Employment

The termination of employment relates to the termination of a contract between an employee and a corporation. An employee may be terminated from a job of his own free will or by the employer’s decision. An employee who is not working actively due to illness, absence leave or temporary layoff is still considered to be working unless the relationship with the employer has been officially terminated with a termination notice. There are mainly two types of job termination:

•  Voluntary Termination
•  Involuntary Termination

Voluntary Termination

Employment can be terminated voluntarily by an employee. Generally, a worker who takes a voluntary decision to terminate employment status with a company does so if they find a better job with another company, retire from the workplace, resign to start their own business, take a break from work, etc.

Constructive dismissal could also result in the voluntary termination of employment. It indicates the employee left the company because there was no other option for them. Under the employer, they could have worked under considerable duress and unpleasant working conditions. Cited challenging conditions include lower salary, harassment, a new workplace that is farther than the employee can fairly drive to every day, extended working hours, etc. The employee’s forced discharge by which an ultimatum is issued to them to resign or be fired is also subject to constructive dismissal. In such situations, if the employee could show that the conduct of the employer during the period with the company are unlawful, they might be entitled to some form of compensation and benefits.

An employee who leaves an employer on a voluntary basis may be required to give the employer advance notice either verbally or in writing. In most industries, two-week advance notice is generally required. In some situations, at the time of termination notice is given to the employer or no notice is given at all, such as when an employee leaves the job or does not return to work.

Involuntary Termination

Involuntary employment termination happens when an employer lays off, dismisses or fires an employee A layoff or organization downsize is a decision taken by a company to reduce its workforce to reduce its operating costs, restructure its organization, or because the skill set of the employee is no longer required. Normally, employees are laid off because of no fault of their own, unlike fired employees.

Generally an employee is fired from a job due to unsatisfactory work performance, poor behavior or attitude that does not suit the culture of the corporation or unethical behavior that violates the policies of the company Under At-Will employment laws accepted in some states an employee performs poorly or may be dismissed without notice in violation of some form of the company’s rules. In reality, the company does not have to give a reason for the termination of the job of the employee.

While employment-at-will contracts do not allow an employer to alert or give an excuse for termination, for certain reasons, an employer can not fire an employee. For these purposes, an employee who refuses to work more than the hours specified in the contract takes a leave of absence, report an incident or an individual to the Department of Human Resources, or fire whistle blows to industry regulators can not get fired for these reasons. An employer who removes an employee for the exercise of their legal rights has done so unlawfully and may be liable in court for wrongful termination.

There is also an illegal dismissal when an employee allows an employee to leave for discriminatory reasons such as religion, race, age, gender, disability or nationality. An employer found guilty of wrongful termination can compensate and/or restore the wronged employee to the company.

In some cases, an employer could, without prejudice to dismiss an employee. It suggests that the worker was let go for reasons other than negligence, insubordination, or occupational harassment. The employee may be rehired in the future for a similar job in such cases.

Dismissal from Employment

Dismissal from employment can be termed as ‘being fired’ or ‘to let go’ from a job against the consent or will of the employee.

Termination of Employment Reasons

Dismissal may be due to problems with the performance of the employee, but it may also be due to factors beyond the control of the employee, such as downsizing, restructuring of the company or eliminating a position.

Some common grounds for termination include poor performance or negligence, problems of attendance, and insubordination or other problems of conduct. Another common reason for a dismissal is misconduct or termination due to cause. This is when employees are dismissed in the workplace due to ethical issues like lying, falsifying data, stealing, or other significant misconduct in the workplace.

Data Protection

India has not yet enacted any specific legislation regarding the data protection of employees working at different organizations or at the workplace. However, the Indian legislature does amend the Information Technology Act, 2000 in which under Section 43A and 72A, it provides for compensation improper disclosure of personal information.

The government of India has subsequently issued the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011.

Data Protection Meaning

Data Protection refers to legal control over access and use of personal data of any person. It is very much necessary to have a data protection system in order to promote the safety and security of the person concerned and also, to prevent identity theft and phishing scams. An assertion is made by the government of India through passing a Data Protection Bill, 2018 in the parliament.

Employee Privacy

The Draft Personal Data Protection Bill, 2018 (the “PDP BILL”) was released on 27 July 2018 by the Ministry of Information Technology, Government of India, along with a report from the Committee of Experts under Justice B.N. Srikrishna’s chairmanship. Currently, the privacy of employees working in corporate institutions is regulated by the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Knowledge) Rules, 2011 (“SPDI Rules”), established under the Information Technology Act, 2000 (“IT Act”), which has become progressively inadequate.

The PDP Bill is a keystone development for the evolution of India’s protection law development. The PDP Bill states that the right to privacy is a fundamental right and the key to data sharing is the consent of individuals. Under the PDP Act, an exemption has been provided to obtain consent from employees by the employer to process their information for certain employment-related matters such as hiring, dismissal, performance evaluation, etc. Nevertheless, this ground for the processing of personal data without the consent of the workers can only be invoked if the processing of personal data on the basis of consent is not sufficient in view of the employer-employee relationship and requires a disproportionate effort on the part of the employer due to the nature of the processing activities.

Labour and Employment Laws of India

Throughout India, labour laws are divided into five broad categories, i.e. Working Conditions, Industrial Relations, Wage, Welfare and Social Securities.

The actions are all based on the Indian Constitution and the resolutions taken from time to time in the ILO conventions.

Indian labour law applies to employment regulatory laws. There are more than 50 national laws and many more laws at the state level. Traditionally Indian governments at the federal and state level have tried to provide employees with a high degree of protection by implementing labour laws.

Thus dealing with the requirements of contract law, an employment contract must also comply with the provisions of applicable labour laws and rules contained in the establishment’s Standing Orders. 

Indian labour laws divide the industry into two broad categories:

Factory

Factories are governed by the provisions of the Factories Act, 1948 (the said Act). All industrial establishments that employ 10 or more people and carry out manufacturing activities with the help of power come within the definition of Factory. The said Act makes provision for factory workers ‘ health, safety, welfare, working hours, and leave. The said Act is enforced by the government of the state through its inspectorates of the factory. The said legislation empowers state governments to frame laws so that the compliance properly reflects the local conditions prevailing in the state. The said Act puts special emphasis on workers ‘ welfare, health, and safety. The said Act is instrumental in improving workplace safety and health regulations, providing for statutory health surveys, requiring the recruitment of safety officers, the establishment of the canteen, crèches, and welfare committees, etc. in large factories.

The said Act also provides specific safeguards against the use and handling of hazardous substances by factory occupants and establishes emergency standards and measures.

The Shops and Establishment Act

The Shops and Establishment Act is an act of state legislation, and each state has established its own rules for the Act. The aim of this Act is to provide employees with statutory obligations and rights and employers with the unauthorized employment sector, i.e. shops and establishments. This Act applies to all persons employed with or without wages in an establishment, except for the family members of the employers.

This Act sets out the following rules: 

• Working hours per day and week.
• Guidelines for Spread-over, rest interval, opening and closing hours, closed days, national and religious holidays, work overtime.
• Children, young people, and women’s employment.
• Rules for annual leave, maternity leave, sickness, and casual leave, etc. 
• Rules for employment and termination.

The main central labour laws which deal with the labour issues are listed below:

1. Minimum Wages Act, 1948 
2. Industrial Employment (Standing Orders) Act, 1946 
3. Payment of Wages Act, 1936 
4. Workmen’s Compensation Act, 1923 
5. Industrial Disputes Act, 1947 
6. Employees Provident Fund and Miscellaneous Provisions Act, 1952 
7. Payment of Bonus Act, 1965 
8. Payment of Gratuity Act, 1972 
9. Maternity Benefit Act, 1961 

1. Minimum Wages Act, 1948 

The Minimum Wages Act stipulates minimum wages for all employees in all establishments or working at home in certain employment specified in the Act’s schedule. Governments of Central and State review the minimum wages specified in the schedule. The Minimum Wages Act, 1948 categorized workers as unskilled, semi-skilled, skilled and highly skilled.

2. Industrial Employment (Standing Orders) Act, 1946 

The Industrial Employment Act requires employers in industrial establishments to clearly define employment conditions by issuing duly certified standing orders. Model standing orders issued under the Act address worker classification, holidays, shifts, payment of wages, leaves, termination, etc. The workers are generally classified as:

• Apprentice/trainee; 
• Casual; 
• Temporary; 
• Substitute; 
• Probationer; 
• Permanent; and 
• Fixed period employees.

3. Payment of Wages Act, 1936 

The following are the employer’s general duties under the Payment of Wages Act, 1936: 

• Every employer is solely responsible for paying wages to employees. The employer must set the wage period (which may be daily, weekly or monthly) but in no case should exceed one month; 
• Every employer must make timely payment of wages. If any person’s employment is terminated, such wages should be paid within two days of termination date; and
• The employer must pay the wages in cash, i.e. in current coins or currency notes. However, after obtaining written consent, wages may also be paid either by cheque or by credit in the bank account of the employee.

4. Workmen’s Compensation Act, 1923

The employer should pay compensation in compliance with the Act for an injury sustained by an employee during the course of employment The employer must submit a statement to the Commissioner (within 30 days of receiving the notice) indicating the circumstances of a worker’s death as a result of an accident and whether the employer is liable to pay any compensation for the accident. It should also provide the Commissioner with an accident report within seven days of the accident.

5. Industrial Disputes Act, 1947

The Industrial Disputes Act, 1947 provides for the investigation and settlement of industrial disputes involving lockouts, layoffs, retrenchment, etc. in an industrial establishment. It provides the machinery to reconcile and adjudicate disputes or differences between employees and employers. The industrial undertaking involves an undertaking which carries any business trade, manufacture, etc.

The Act sets out the conditions to be met before termination/retrenchment or layoff of an employee who has been in continuous service for at least one year under an employer. The workman shall receive a written notice of one month, indicating the reasons for retrenchment and the period of notice expired or wages paid to the worker for the period of the notice instead of such notice. The employee shall also receive compensation equal to the average pay of 15 days for each year of continuous service completed. Notice shall also be issued to the appropriate government.

6. Employees Provident Fund and Miscellaneous Provisions Act, 1952 

This Act aims to ensure the financial security of the employees in an establishment by providing a system of compulsory savings. The Act provides for the establishment of a contributory Provident Fund where the contribution of employees is at least equal to that of the employer’s contribution. The employees’ minimum contribution shall be 10-12% of the wages. After retirement, this amount is payable to the employee and could also be partly withdrawn for certain specified purposes.

7. Payment of Bonus Act, 1965

The payment of the Bonus Act provides for the payment of bonus on the basis of profits or on the basis of production or productivity to persons employed in certain establishments.

The Act applies to establishments where 20 or more people are employed. The minimum bonus to be paid by an employer even if he suffers losses in the accounting year is 8.33% of the salary.

8. Payment of Gratuity Act, 1972 

The Payment of Gratuity Act provides for a gratuity payment scheme for all employees in all establishments employing ten or more employees to all types of workers. Gratuity is payable to an employee on his retirement/resignation at the rate of employee’s 15-day salary for each completed year of service subject to a maximum of Rs. 350,000.

9. Maternity Benefit Act 1961

The Maternity Benefit Act governs women’s employment in certain establishments for a specified period of time before and after childbirth and offers certain other benefits. The Act does not extend to any factory or other establishments that are protected by the Employee State Insurance Act, 1948. Any female employee who has served in an establishment for a period of at least 80 days during the 12 months immediately following the date of her expected delivery shall be entitled to maternity benefits under the Act. The employer is therefore required to pay maternity benefits and/or medical bonus and provide maternity leave and nursing breaks.

Important case laws

1. Whereby some club not only sporting facilities are maintained, but also a kitchen where a large number of members come, it is not necessary that they only participate in sporting activities, they also entertain themselves and their guests by partaking drinks and tea served by the club. Kitchen work is directly connected to the activities carried out in the rest of the club premises. The club must be registered under the ESI Act with regard to all the club employees, regardless of the department in which they work. India’s Cricket Club satisfies the definition of the term “factory” under s. 2(12) of the Act to which it relates.– Cricket Club of India v. ESI Corporation 1994 (69) FLR 19. 
2. Wherever activities are taking place in an establishment such as clearing and forwarding, they would fall within the expression “shop,” even though the clearing of documents is carried out in the customs house intended for export and import. Persons involved in such businesses are catering to the needs of exporters and importers and others who want to carry the goods further. AIR 1993 SC 252.
3. Anyone with a product could approach an advertising agency. An advertising campaign will be prepared for him by the advertising agency using the services of the experts it employs in this behalf. It sells the campaign to the client and receives the price. The price will undoubtedly depend on the nature of the campaign, but that doesn’t make a big difference. The advertising agency effectively offers its expert services to a client to allow the client to launch an effective campaign of its goods without straining the language, the premises of an advertising agency can be said to be a “shop”- ESI Corporation v. R.K. Swamy 1993 (67) FLR 1145: 1993 (2) CLR 1068.
4. Where a laid-off employee came out of the factory premises after signing the lay-off register, and a scooter hit him when he was crossing the road, injuries sustained by him were considered as covered during the course of employment on the basis of notional extension theory.— Satya Sharma v. ESI Corporation 1991 (63) FLR 339.
5. If the job of the employee is conducted under the immediate gaze or control of the principal employer or his agent, subject to other conditions as envisaged he would be an employee for the purpose of s. 2(9).—CES Corporation Ltd. v. Subash Chandra Bose 1992 (1) LLJ 475.
6. A work that is conducive to the work of the factory or establishment or which is necessary for the augmentation of work of the factory or establishment will be incidental or preliminary to the work of the factory or establishment or connected with it. It also brings in the casual employees and is entitled to the benefits that the Act provides. The casual labour employed to build additional buildings are employees under the Act.— Regional Director, ESIC v. South India Flour Mills Ltd. 1986 (53) FLR 178.
7. Employees engaged in the principal employer’s repairs, site clearing, building construction, etc. are employees within the meaning of s. 2(9) of the Act. —Kirloskar Pneumatic Co. Ltd. v. ESI Corporation 1987 (70) FJR 199.
8.  The term ‘employed for wages or in connection with the work of a factory or establishment’ has a very wide range and its generality is not prejudiced in any way by its expression and includes any person employed for wages or any work connected with the administration of the factory or establishment or in connection with the selling or distribution of the factory or establishment’s products In the legal definition of the term “includes” is usually used to extend the meaning of the preceding terms and is used by extension rather than restriction. To order to determine whether the company’s employees working in its branch sales offices and carrying out acts of sale and distribution of goods produced by the company as well as the goods produced by the foreign company are ’employees’, what is important is not whether they are ‘principally’ engaged in the sale and distribution of the company’s products, but whether the business of sale and distribution either “principally” or “marginally” of the products of the foreign company is being done on behalf of the company. If the company’s main business in the branch sales offices itself is to sell and distribute foreign company goods, and the company’s employees are working solely in connection with this job, it would be difficult to argue that the employees in branch sales offices are not “employees” within the meaning of the term specified in s. 2(9) of the Act, despite the fact that the selling and distribution of the company’s products at 42 these offices are marginal only.— Director-General, ESI Corporation v. Scientific Instrument Co. Ltd. 1995 Lab. IC 651.
9. Where a marble manufacturing company extends the work of fixing the marble to a contractor, the contractor’s duty is only to complete the work while the manufacturing company supplies marble, cement etc., workers employed by the contractor would be the factory’s employees as under s. 2(9) Act.— 1992(2) CLR 881.
10. For the term “employee,” as described under s. 2(9) of the Act, there is no such distinction as that of a casual or temporary or permanent employee. It is so broad that even a casual worker who is only working for a day’s wages can be included. The test is whether the individual is working for wages on any work related to the work of a factory or establishment that bears the application of the Act except those excluded by the definition.— ESI Corporation v. Suvarna Saw Mills 1980 (57) FJR 154.
11. Where a publishing and press department run by the university concerned is engaged in the printing of textbooks, journals, records, forms etc.that would lead to the manufacturing process.— Osmania University v. ESI Corporation 1986 (1) LLN 72. 
12. Where there was no manufacture of articles nor the hotel used power to manufacture any article except to maintain one refrigerator to preserve milk and curd, and since there was no use of power in the kitchen to manufacture the eatables and the refrigerator was held only to preserve milk and curd, there was no manufacturing process.— Ritz Hotel v. ESI Corpn. 1995 (1) Mah. LJ 63.
13. Wages paid for the holidays are classified as wages.— R.D., ESI Corporation v. Raj Kershaw Co. 1991 Lab. IC 1991 Lab. IC 1989.
14. For the purposes of contribution under the Act, overtime wages could not be regarded as “wages.”- Hind Art Press v. ESI Corporation 1990 (1) LLJ 195.
15. The ESI Corporation is given the power to recover the employer’s contributions arrears along with damages/interest on the contribution that remained due. It is therefore under an obligation to pay the arrears of benefits to the insured employees or their dependants with interest.— ESI Corporation v. Bhag Singh 1989 (2) LLJ 126.
16. Section 53 of the ESI Act (Bar against receiving or recovering compensation or damages under any other legislation) does not bar the remedy under s. 110A of the Motor Vehicles Act, 1939.— Deputy General Manager of KSRTC v. Gopal Mudaliar, 1983 (46) FLR 194.

Checklist for Labour Law compliance

Establishments need to ensure statutory compliance with various labour laws. It is not only limited to the legal deposits, returns and records to be kept by the employer under various labour laws, but also to represent them under various statutes in case of the prosecution. Therefore, it is difficult to emphasize that the labour laws place a duty on the employer for meticulous impeccable and timely compliances. In the event of violation or delay in compliance with the statutory requirements, consequences in terms of levy of damages, the prosecution is inevitable.

A comprehensive checklist is given below to ensure compliance with labour laws.

• Legislation
• Objective & Applicability
• Compliance Requirement

Apprentices Act, 1961

This Act provides for the regulation and control of apprenticeship training and increases the availability for the industry of trained technical employees. The Act requires employers to hire apprentices in certain specified trades as informed by the government.

• Appointing apprentices if the company falls within the notified sector. 
• Returns submission as stipulated by the Act. 
• Maintaining registers as provided by the Act. 

Contract Labour (Regulation & Abolition) Act, 1970 and Rules 

This Act governs the recruitment of contract labour in certain establishments and, under certain conditions, provides for its elimination. This refers to any organization or contractor in which 20 or more employees are or have been working as contract labour on any day of the preceding 12 months.

• Employees’ working conditions. 
• Suitable facilities for employees such as drinking water, canteen etc. 
• Suitable facilities for female workers as well. 
• Maintaining registers as provided by the Act. 
• Submission of returns.

Employee State Insurance Act, 1948

This Act provides for benefits for employees in the event of sickness, maternity and employment injury. All employees, including casual, temporary or contract employees, are covered with wages of less than Rs 10000 per month.

• Contribution remittance each month. 
• Maintenance of the documents. 
• Provide returns according to the provisions of the Act.

Employee’s Provident Fund and Miscellaneous Provisions Act, 1952

The PF Act provides workers with the compulsory institution of contributory provident funds, pension funds and deposit-related insurance funds. This Act applies to industries listed in Schedule I that employ 20 or more people and any other category of enterprises that employ 20 or more people notified by the Government.

• Contribution fee each month. 
• Maintaining documents. 
• Returns in accordance with the provisions of the Act

Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959

The Employment Exchange Act was meant to provide for compulsory notification of employment exchange vacancies. This refers to all public sector establishments and private sector establishments which usually hire more than 25 employees.

• Vacancy intimation to the local employment exchange when a vacancy occurs. 
• Submissions of returns.

Equal Remuneration Act, 1976 

This Act provides for payment of equal remuneration to men and women employees for the same job and forbids discrimination on the grounds of sex against women in employment, recruitment and matters related to it or incidental to it. The Act applies to nearly all kinds of establishments.

• No disparity in terms of payment by men and women employees for the same job. 
• Maintaining the register.

Factories Act, 1948

The Factories Act provides for factory workers ‘ health, safety, welfare, conditions of service and other aspects. It applies to all factories that employ more than 10 people and work with the help of power or that employ 20 people and work without the help of power. It covers all workers employed directly or through an agency, including a contractor in the factory premises or precincts involved in any manufacturing. Certain provisions of the Act may vary depending on the establishment’s nature of work.

• Licensing and license renewal under the Act.
• A provision in the factory premises for adequate safety measures.
• To provide adequate welfare measures for workers such as creche, canteen, washroom, etc.
• Payment of wages in accordance with the provisions of the Act.
• Payment of overtime wages.
• Maintenance of records.
• Submission of returns.

Industrial Disputes Act, 1947

The Industrial Disputes Act aims to secure industrial peace and harmony through negotiation by providing machinery and procedure for investigating and settling industrial disputes.

This Act extends to any industrial establishment that carries on any business trade, manufacture or distribution of goods and services regardless of the number of workers employed in it. The Act includes any person employed in a hire or reward institution, including contract labour, apprentices and part-time employees, to do any manual, clerical, skilled unskilled, technological, operational or supervisory work.

• Prevention of unfair labour practices. 
• Prior permission of the appropriate government.

Concerned labour authority for lay off or withdraw workers or to shut down the industrial establishment. 

• Payment of workers ‘ compensation for closure, lay-off or withdrawal.

Industrial Employment and Standing Orders Act, 1946

The Standing Orders Act requires employers to identify and publish standing orders (service rules) explicitly, and to make them available to the employees they hire. This refers to any industrial establishment where, on any day of the previous 12 months, 100 or more employees are/were employed.

• Formulating the rules of operation and receiving approval from the concerned Labour Authority. 
• Display of standing orders for employee knowledge in a prominent place.

Maternity Benefit Act, 1961

The Maternity Benefit Act is aimed at restricting women’s employment in certain establishments for certain periods before and after pregnancy and offering maternity benefits like maternity leave, wages, bonuses, nursing breaks for breastfeeding, etc.

This refers to any factory, mine or plantation, including those belonging to the Government regardless of the number of workers, and to any shop or establishment in which 10 or more people are employed or were employed on any day of the preceding 12 months.

• Grant of leave with payment of wages after birth or any other problems related to maternity, such as abortion, etc. 
• Submission of returns.

Minimum Wages Act, 1948

The aim of this Act was to provide for fixing minimum wage rates in certain jobs. This refers to all establishments that hire one or more employees and are engaged in any of the scheduled employment.

• Provide the minimum wage rate set by the government.  
• Preservation of records as prescribed by the Act. 
• Submission of returns.

Payment of Bonus Act, 1965

The aim of the Payment of Bonus Act is to provide for bonus payments (linked to profit or productivity) to persons working in certain establishments and related matters. This Act extends to every factory or establishment in which 20 or more workers are working during an accounting year on any day.

• Payment of bonus in accordance with the provisions of the Act. 
• Submission of returns.

Payment of Gratuity Act, 1972

The Act provides for a gratuity payment scheme for workers working in factories, mines, oilfields, plantations, ports, railway companies, stores, or other establishments.

The Act enforces payment of ‘gratuity’ as a statutory retirement benefit, which is a reward for long service. All employees, regardless of their wages, are entitled to receive gratuity if they have rendered continuous service of 5 years or more than 5 years.

• Payment of gratuity for workers leaving the company after the completion of 5 years. 
• Notice of opening to the labour authority in question. 
• Displays required by Act. 
• Management of register of allocable surplus, rewards, etc. 
• Submission of annual returns.

Payment of Wages Act, 1936

The Act guarantees payment of wages in a particular form without unauthorized deductions at regular intervals. It refers to any factory, railway establishment and any industrial or other establishment, such as tramway services, motor transport services, land, oil fields, plantations, workshops or other establishments that develop, adapt or manufacture any article establishment engaged in development, construction and maintenance of buildings, roads, bridges, canals, navigation, irrigation or water supply, distribution of electricity/power and any other establishment notified by the central or the state government.

• Payment of wages without deductions that are not authorized. 
• Maintenance of fines, deductions, bonuses, salaries, etc. registers. 
• Displays in accordance with the provisions of the Act. 
• Submissions of annual returns as given under the Act.

The Indian Boilers Act, 1923 

The Act aims to regulate the licensing and use of boilers in the Industry. It is applicable to all establishments that use a boiler.

• Boiler licensing. 
• Appropriate safety precautions. 
• Appointment of trained staff to handle the boilers. 
• Maintaining records in accordance with the provisions of the Act.

Trade Unions Act, 1926

This Act provides for the registration of trade unions (including employers’ associations) to permit collective bargaining in order to make lawful labour organization possible. The act also confers a registered trade union with certain protection and privileges. This refers to all kinds of workers’ unions and employers’ associations which aim at regularizing labour-management relations.

•  Registration of trade unions in accordance with the provisions of the Act.

Workmen’s Compensation Act, 1923 

The object of the act is to provide compensatory payment to employees and their dependents in the event of injuries arising from and in the course of employment and causing either worker death or disability.

The Act extends to factories, mines, ports, buildings, plantations, oilfields and other establishments mentioned in Schedule II and III of the Act, which excludes establishments covered by the ESI Act.

• Provision of compensation in case of accident. 
• Submission of returns. 

Conclusion

India’s constitution is the basis of all laws in our country. The labour laws are also rendered in compliance with the constitution, and the abolition of that particular law results in any violation of constitutional law. The Directive Principles of State policy play a major role in the development of new labour laws in India.

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

The post A guide to Labour Laws in India appeared first on iPleaders.

This article is written by Team LawSikho.

Being a Bengali, I don’t celebrate Diwali. We have our Kali Puja but then again I am not religious.

However, there is no reason to not celebrate! And get into the Diwali spirit!

What is the essence of Diwali for you? 

Is it the celebration of all things good, a festival of lights, a time to share your joy with family and friends?

Is it all about the victorious warrior returning home to his family, to his near and dear ones, and connect back with the roots?

For some, it is shopping time, and bagging those amazing deals. Or at least a time to stop, breathe, look around and put things in order. 

In many countries, they do spring cleaning. Out with the old and worn out, bring in the new! And we have Diwali.

While you are adding new clothes to your wardrobe,  brand new prized possessions to your home and new joys to your life, do not forget to add new skills and opportunities to your life.

As Diwali is approaching, let us give you a great opportunity to further invest in your legal skills and career!

Click Above

This is strictly for those who have done our LawSikho courses or already have an idea about the quality and opportunities we offer.

Many of you often tell us that you want to do not one but multiple courses. Great. 

Usually, everyone has to pay the full price because we never give any discounts on our courses.

I am going to make an exception here, only one time. We did this last Diwali too. It is relevant for only our existing students, who have already bought at least one course from us.

During these Diwali holidays, that is from now till the end of the day of 28th October, if you buy any diploma course from us, you can get 30% off on any 2nd course or 3rd course or 4th course you may want to buy. This does not apply to any of our subscription programs like Master Access, Litigation Library or Corporate Law Library.

I am also extending this offer to those who have already bought a LawSikho Diploma course anytime in the past. You can get this offer too. If you buy a course now, you can get 30% off.

This is a way for us to say thank you to all our past students, who liked our courses and would like to take more courses. Basically, our most loyal supporters. Because without you, the LawSikho movement will never be possible.

How do you avail this offer? It’s not available on our website. We are just sharing this on our blog. If you are interested mail us on info@lawsikho.com and let us know. We will be in touch and help you out with this.

DIPLOMA

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

Diploma in Entrepreneurship Administration and Business Laws 

Diploma in Companies Act, Corporate Governance and SEBI Regulations 

Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution

Diploma in Cyber Law, Fintech Regulations and Technology Contracts

Diploma in Intellectual Property, Media and Entertainment Laws

EXECUTIVE CERTIFICATE COURSES

Certificate Course in Legal Practice Development and Management

Certificate Course in Advanced Criminal Litigation & Trial Advocacy 

Certificate Course in Real Estate Laws

Certificate Course in Advanced Corporate Taxation

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

Certificate Course in Capital Markets, Securities Laws, Insider Trading and SEBI Litigation

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

Certificate Course in National Company Law Tribunal (NCLT) Litigation 

Certificate Course in Companies Act

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

Certificate Course in Trademark Licensing, Prosecution and Litigation

Certificate Course in Insolvency and Bankruptcy Code

Certificate Course in Arbitration: Strategy, Procedure and Drafting

TEST PREPARATION

Judgment Writing and Drafting Course for Judicial Services

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

The post Lets make your Diwali full of Legal Delights appeared first on iPleaders.

This article has been written by Anjali Dixit.

Introduction

Abortion or the termination of pregnancy as it is referred to in legal parlance, was illegal in India until 1971, as Section 312-316 of the Indian Penal code,1861 made it a criminal offence. Abortion can be spontaneous or induced. Spontaneous abortion is when a pregnancy comes to an end on its own, commonly known as miscarriage; whereas an induced abortion is when a pregnancy is terminated by intervention using medical or surgical procedures. It is clear that the Indian penal code made induced abortions illegal, considering the socio-religious fabric of the Indian society at that time. However, in 1971, the Medical Termination of Pregnancy Act, 1971(MTP Act) was enacted, making induced abortion legal in certain circumstances. This Act was enacted based on recommendations of the Shanti Lal Shah Committee, constituted by the government in 1964, to draft an abortion law for India in response to the alarming rates of illegal abortions taking place in the country[1].

Ever since the MTP Act was passed there has been disquiet and unrest over its provisions giving primacy to the opinion of a registered medical practitioner rather than the pregnant woman. Several petitions have been filed so far challenging the 48-year-old MTP Act, 1971 on account of its stringent provisions related to abortion. Since 2009, over 30 petitions have been submitted to the Supreme Court and the High Courts by women and girls seeking directions for obtaining termination of pregnancy. [2]

Recently, on September 18, 2019, the Ministry of Health and Family welfare, in an affidavit filed before the Supreme Court of India submitted, that a pregnant woman’s right to abortion is not absolute. The affidavit was filed in response to a petition filed in 2009 by Dr Nikhil Datar that seeks to liberalize the restrictive provisions relating to abortion in India[3].

This reply by the government resurfaced the debate on the right of women to make reproductive choices.

The MTP Act was enacted with the laudable object of safeguarding women’s health and reducing maternal mortality due to illegal abortions. But even after 48 years of its passing, unsafe abortions constitute 9-20% of all maternal deaths in India[4].A recent study published in Lancet Global Health estimates that only 22% of the 15 million abortions that occur in India every year take place in a public or private health facility, and are performed by trained personnel, whereas the remaining 78% of abortions happen outside health facilities[5].

These harrowing statistics indicate that the current law has been inept in fulfilling its objective and calls for prompt amendment. In order to argue for reform in the laws, it is imperative to comprehend the law governing the realm of abortion in India.

Law at present

The Medical Termination of Pregnancy Act 1971 is the sole legislation governing induced abortions in India. The act regulates three aspects of termination of pregnancy, namely; when pregnancies may be terminated, by whom can it be terminated and where can they be terminated.

Section 3 of the said Act provides for the termination of a pregnancy by a registered medical practitioner if he is of the opinion that

• the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health; or
• there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped.

The said opinion needs to be formed in good faith. Further, in case of the length of pregnancy being 12 weeks, opinion of one registered practitioner is required, whereas in case of pregnancy extending 12 weeks but not more than 20 weeks, the Act requires the opinion of two registered practitioners.

Therefore pregnancy of length extending 20 weeks can’t be terminated by this route even if the above conditions are satisfied. In such a situation, the only option left with the aggrieved party is to petition the High Court seeking a direction to terminate the pregnancy. The Court grants or denies permission based on the opinion of a medical board constituted by it.

It is significant to mention here that the terms “grave injury to physical and mental health” is of wide import and subject to varied interpretation.

The explanations appended to Section 3 in the act, state that the anguish caused by a pregnancy alleged to have been caused by rape shall be presumed to cause grave mental injury to the pregnant woman.

Further, unwanted pregnancy of a married woman may be presumed to cause grave injury to her mental health, if it is caused as a result of the failure of a contraceptive method. In determining the injury caused to a woman, the Act considers the actual and foreseeable environment of the woman. The consent of the pregnant woman is required for termination of pregnancy and in case of a woman below 18 years or above 18 years but mentally ill, the consent of a guardian in writing is needed.

Section 4 of the Act details the place where the pregnancy can be terminated. It includes a hospital established or maintained by the government, or a place approved by the government or a district-level committee by the government for the purposes of the Act.

Section 5 provides relaxation of provisions mentioned in section 3 and 4, in case a registered medical practitioner forms an opinion in good faith, that the termination is immediately necessary to save the life of a woman.[6]

Anomalies in the Act

A careful analysis of the above-discussed provisions exposes the glaring gaps.

Firstly, the exclusion of pregnancies beyond the period of 20 weeks cannot find a reasonable justification in the present day and age. The MTP Act was drafted back in 1971 considering the technology at that time. With the rapid advancement in medical science today, pregnancies can be terminated safely up to 24 weeks.

Moreover, several factors lead to delay in accessing facilities that meet the requirements of the Act, causing women to cross the 20-week mark. There are instances where abnormalities in the foetus can be detected only after 20 weeks. If an abnormality in the foetus is discovered post 20 weeks of pregnancy, and the woman wishes to abort, she is subjected to the rigmarole of petitioning the high court.

Secondly, the requirement of a medical practitioner forming an opinion even as to the mental health of a woman is unjust, as it gives room to subjective interpretation. A pregnant woman should be regarded as the best judge of her mental well being. There could be myriad reasons with the potential of causing grave mental injury to the woman; all may not appeal to a medical practitioner as potent. In case, the woman decides to end the pregnancy solely on the reason of anguish caused to her by its continuation, she should be free to do so.

Thirdly, the requirement of two registered medical practitioners beyond a period of 12 weeks of pregnancy is unduly harsh for the woman from poor and under-developed regions, who do not have easy access to medical facilities. Despite government guidelines in this regard, abortion facilities are not available at all government medical establishments. In a scenario where access is a major issue, stringent requirements like these do more harm than good.

Fourthly, the Act takes into account unwanted pregnancies of an only married woman, caused due to contraceptive failure, under the presumption of causing grave injury to mental health. There is an underlying denial of the fact that unmarried women have unintended pregnancies that could cause grave injury to their mental health. This differential between married and unmarried woman is both unreal and unjust. Thus, unintended pregnancies of unmarried women are left to the unguided opinion of medical practitioners.

Recent Supreme Court decisions

 At several instances, the apex court of the country has ruled on cases relating to medical termination of pregnancy. As per article 141 of the Constitution of India, the law laid down by the Supreme Court is binding on all courts in India. Such being the impact of its decisions, it is pertinent to discuss some recent decisions by the apex Court in this regard.

Mrs X vs. Union of India  [7]

In this particular case, permission to terminate a 22-week old pregnancy was granted by the apex court on the report of a medical board, which recommended that continuation of the pregnancy would gravely affect the woman’s physical and mental health. This case is particularly significant for the Apex Court’s recognition of a woman’s liberty to terminate her pregnancy. The Court held that “a woman’s right to make reproductive choices is also a dimension of her ‘personal liberty’ under Article 21 of the Constitution”

Murugan Nayakkar vs. Union of India & Ors.[8]

 The Supreme Court allowing the termination of a 32 week old pregnancy of a 13-year-old rape victim held that “Considering the age of the petitioner, the trauma she has suffered because of the sexual abuse and the agony she is going through at present and above all the report of the Medical Board constituted by this Court, we think it appropriate that termination of pregnancy should be allowed.” It is imperative to note that a 32-week pregnant minor rape victim had to go through judicial scrutiny, as the law failed to provide any respite to her.

Savita Sachin Patil vs. Union of India  [9]

In this case, termination of a 27 week pregnancy was prayed for on the ground that the foetus had severe physical anomalies. However, the Apex court shockingly rejected termination of pregnancy, considering the report of the medical board which opined that though the foetus suffered with physical anomalies, there is no risk to the physical health of the mother. 

Sheetal Shankar Salvi v. Union of India, [10]

In March 2017, a 28-year-old woman prayed for termination of her 27-week old pregnancy, as the foetus suffered from a condition called Arnold Chiari Type II syndrome. This condition leads to an underdeveloped brain and spine and the chances of survival are highly reduced. The 7 members medical board constituted by the court recommended that there are chances of the baby being born alive. The Apex court denied permission on this ground while admitting that it was “very sad for a mother to bring up a mentally retarded child.

These cases bring the anomaly of law to the forefront. It is significant to observe that there is no uniform standard for granting or denying permission for termination of pregnancy. Further, the opinion of the medical board is given undue weight as compared to the choice of a woman.

The Medical Termination of Pregnancy (Amendment) Bill, 2014

In 2014, The Ministry of Health and Family Welfare released the draft MTP (Amendment) Bill 2014. The Bill increases the permissible limit for legal abortions from 20 weeks to 24 weeks. Further, no limit has been proposed for pregnancies diagnosed with substantial fetal abnormalities. It includes unmarried woman under the presumption of unintended pregnancies caused by contraceptive failure, deemed to cause grave injury to mental health. The bill mandates the protection of privacy rights of women while maintaining records. It expands the range of medical service providers by substituting the term “registered health care providers” in place of “registered medical practitioners, thereby including even non-allopathic healthcare providers.[11]

Shortcomings in Bill

While the Bill does propose some welcome changes in terms of expanding the service provider base to improve access, it does little to shift the focus of decision making from the service provider to women. Women will still be mandatorily dependant on the opinion of the service provider. The term ‘substantial fetal abnormality’ is capable of subjective interpretation, thereby resting the final decision on medical professionals. Further, it does nothing to recognize the plight of victims of sexual offences and they have been subjected to the same standards of an unintended pregnancy caused due to contraceptive failure. Victims of sexual offences are usually subjected to a variety of legal and practical barriers causing a delay in accessing abortion services. The law must incorporate mechanisms to recognize and provide swift relief in such cases.

This bill has been sent for inter-ministerial consultation and is yet to see the light of the day.

Conclusion and a way forward

The decision to not bring a child to life is a tough call for a mother. Pregnancy is not just physically consuming but involves a lot of emotions. However, if a woman makes the hard choice of terminating her pregnancy, she must not be left vulnerable to an unfavourable third party opinion. The stringent provisions of the MTP Act interfere with the reproductive rights of women. That the right to make reproductive choices is a component of the personal liberty of women has been well recognized by the Supreme Court of India.

 It is time that the focus of legislation shifts from the opinion of a medical service provider to ways and means of empowering and enabling women to make informed reproductive choices. There is more than one reason which makes this change compelling.

Firstly, a woman has autonomy over her body and can decide on issues concerning bodily integrity. The right to life and personal liberty under Article 21 of the constitution of India encompasses the right to make reproductive choices. Thus, a law impeding the exercise of this right is a clear violation of Article 21.

Secondly, time is of the essence in abortion cases. The unjust limit on the length of pregnancy for legal termination does not redress the concerns of a woman who have crossed such limit. This leaves behind a large section of women who are left with no option but to knock on the doors of Courts, which is a costly and time taking affair. Procedural delays often extend the length of pregnancy making it unsafe to terminate. It is insensitive to subject a woman who is more than 20 weeks pregnant, to judicial delays. Not all opt for the judicial route, a number of women resort to clandestine and unsafe abortions, thus risking their lives.

Thirdly, the law on abortion must aim at weeding out the causes of unsafe abortion, thereby protecting and improving women’s health. All women, barring class, caste and region, should have an equal opportunity to exercise their reproductive rights. The law must focus on making abortions more accessible, effective, safe and affordable.

Lastly, the legislators must strive to make induced abortion less conditional and more dependent on the will of the pregnant woman. The role of a medical practitioner must be limited to recording consent and adopting a safe procedure. It’s time to restore autonomy to a woman so that she can be an independent arbiter on matters relating to her bodily integrity.

Endnotes

[1] K.D Gaur, Abortion and the Law in India, Vol. XV Cochin University Law Review,123(1991), available on http://dspace.cusat.ac.in/jspui/bitstream/123456789/11161/1/Abortion%20and%20the%20Law%20in%20India.PDF  last seen 25/09/2019.

[2] Centre for Reproductive Rights, Ensuring Reproductive Rights: Reform to  Address women and girl’s need for abortion after 20 weeks, available at  https://reproductiverights.org/sites/default/files/documents/Post-20-Week-Access-to-Abortion-India-0218.pdf ,last seen  25/09/2019.

[3] Women don’t have  absolute right to abort,Hindustan Times,19/09/2019,available on

https://www.hindustantimes.com/india-news/women-don-t-have-absolute-right-to-abort-government-to-sc/story-xJYnwFibwU7Jezm5yRRu0H.html,last seen 25/09/2019

[4] Supra 2, at 12

[5] V. Manning, Looking beyond the legality of abortion, Live mint, 1/10/2019,available on https://www.livemint.com/Opinion/yCN9cRSjS4a6r5FKjcGoTM/Opinion–Looking-beyond-the-legality-of-abortion.html, last seen 25/09/2019

[6] Medical termination of Pregnancy Act ,1971

[7] Ms. X v. Union of India,W.P (C)No. 593 of 2016(Supreme Court,25/07/2016).

[8] Murugan Nayakkar vs. Union of India & Ors ,W.P. (C) No. 749 of 2017(Supreme Court)

[9] Savita Sachin Patil vs. Union of India,W.P. (Civil) No. 121 of 2017(Supreme Court)

[10]Sheetal Shankar Salvi v. Union of India, W.P.(C) 174 of 2017,( Supreme Court,27/03/2017).

[11] Medical termination of Pregnancy(Amendment) Bill,2014 (Draft Bill, October 2014)

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

The post Let abortion laws be woman-centric appeared first on iPleaders.

This article is written by Shambhavi Tripathi, a 3rd-year student of LL.B. in Panjab University, Chandigarh. The article deals with the International and Indian legal regimes relating to cyber crimes and e-commerce and contains a detailed study of the IT Act, 2000.

International Legal Regimes Relating To Cyber Crimes

European Convention on Cyber Crimes

The most significant approach towards cyber crimes and international cyber law was made in the European Convention on CyberCrime held in Budapest on November 23, 2001. It is one of the most important multilateral treaties tackling the issue of cyber crimes and electronic evidence. It was drafted by the Council of Europe along with Canada, Japan, South Africa and the United States of America. This Convention consists of 4 Chapters and 48 Articles in total. This Convention is a criminal justice multilateral treaty that provides States with:

1. The criminalization of certain actions by means of computers and internet; 
2. procedural law to investigate cybercrime and admission of electronic evidence in relation to any crime; and 
3. international police and judicial cooperation on cyber crime and electronic evidence.

Around 67 States are signatory to this Convention and together with ten international organizations (the Commonwealth Secretariat, European Union, INTERPOL, the International Telecommunication Union, the Organisation of American States, the UN Office on Drugs and Crime and others), these signatory states participate as members or observers in the Cybercrime Convention Committee. The Committee deals with the implementation of the Convention by the Signatories. India, however, is not a signatory to the Convention on Cyber crime; therefore, it is not obligated to amend its local laws in accordance with the Convention or implement it. 

The European Convention has served as a model framework for the development of both international and domestic law on cyber crimes, electronic evidence and preventive strategies for the same.

Model Law on Computer and Computer Related Crime

In October 2002, the Commonwealth Secretariat prepared the “Model Law on Computer and Computer Related Crime” for the Commonwealth Nations consisting of 53 member countries. The Model Law widened the criminal liability for offences related to internet and computer systems, and for using illegal devices and methods related to computer technology.

The Model Law also introduced the concept of dual criminality in respect to cyber crimes. It states that the offence would also be punishable if a person commits an offence outside his country, if the person’s actions would constitute an offence under any law of the country where the offence was committed. This concept of dual criminality may lead to prosecution or extradition. Some of the member countries of the Commonwealth have drafted their domestic cyber law based on the Model Law.

The Group of Eight (G8)

At the Denver Summit 1997, the Group of Eight (G8) was mainly focused towards punishing high-tech criminals, and promoting technical and legal developments to counter international computer crimes.  

At the Okinawa Summit 2000, the Okinawa Charter on Global Information Society adopted the principles of international collaboration and harmonization for cybercrime. The Group of Eight agreed on importance and principles for the protection of privacy, free flow of information, and security of transactions.

The Organization for Economic Cooperation and Development (OECD)

The OECD consists of 30 member countries. In 1983, a committee was appointed by the OECD to discuss computer and cyber crimes and criminal law reforms. In December 1999, the OECD officially approved the Guidelines for Consumer Protection in the Context of Electronic Commerce, representing the member States’ consent for consumer protection for e-commerce. 

The OECD adopted Guidelines for the Security of Information Systems and Networks in 2002, to “promote security among all participants as a means of protecting information systems and networks”.

Global international efforts by the United Nations (UN)

In 1990, the General Assembly of the UN adopted the Guidelines Concerning Computerized Personal Data Files; it aimed at taking proper measures to protect the files against both natural and artificial dangers. 

Various resolutions have been endorsed by the UN General Assembly with the same motive to improve cyber security awareness internationally, to fight the criminal misuse of information systems and to prevent cybercrime.

International Legal Regime Relating To e-Commerce

UNCITRAL Model Law on Electronics Commerce, 1996

The UNCITRAL Model Law on Electronic Commerce was adopted by the United Nations Commission on International Trade Law (UNCITRAL) to help countries in framing the legislation for allowing and facilitating e-commerce and e-government. Model Law serves as a model to countries to enhance their laws related to commercial relationships involving the use of computerized or other modern communication techniques. The Model Law puts electronic communications on par with traditional paper-based modes of communication by giving them equal status. It also has provisions related with transmission and receipt of messages and electronic contracts, however, it does not address jurisdictional or conflict of laws issues. The model law has the following characteristics:

1. Establishes rules to validate contracts formed through electronic means and sets rules for forming e-contracts and governing them,
2. Defines the characteristics of valid electronic writing and of an original document,
3. Provides for the legality of electronic signatures for legal and commercial purposes, 
4. Provides for the admission of computer and electronic evidence in court proceedings.

Legal regime in India

IT Act, 2000

• Digital Signature and Electronic Signature- Digital signature means authentication of any electronic record by means of an electronic method or procedure as provided under Sec 3 of the Act.

A subscriber can authenticate any electronic record or identification by electronic signature or electronic authentication. An Amendment to the IT Act in 2008 introduced the term electronic signatures.

• E-Governance- Electronic Governance is dealt with under Sections 4 to 10A of the IT Act, 2000. It provides for legal recognition of electronic records and Electronic signature and also provides for legal recognition of contracts formed through electronic means. 

Filing of any form, application, issue or grant of any license or payment in Government offices and its agencies may be done through the means of electronic form.

1. Regulation of Certifying Authorities- The IT Act provides for the Controller of Certifying Authorities (CCA) to provide license and regulate Certifying Authorities. The Certifying Authorities (CAs) issue digital signature certificates for electronic authentication of subscribers. The CCA certifies the public keys of CAs using its own private key, which enables users in the cyberspace to verify that a given certificate is issued by a licensed CA.
2. Duties of Subscribers- Duties of subscribers are mentioned in Chapter VIII under Sections 40-42. Subscriber means a person in whose name the electronic signature certificate is issued. A subscriber is in a way a customer or a buyer. Duties of subscribers are as followed:

• Sec 40: The subscriber has to generate public key pair by applying the security procedure when any Digital Signature Certificate has been accepted by a subscriber, the public key of which (Digital Signature Certificate) corresponds to the private key the subscriber which is to be listed in the Digital Signature Certificate. 
• Sec 41(1): He shall demonstrate acceptance of the digital signature certificate generated by the certifying authority- to one or more persons, in a repository or otherwise. 
• Sec 41(2): He shall provide correct information.
• Sec 42(1): He shall take reasonable care to retain control of the private key corresponding to the public key listed in his Digital Signature Certificate and shall prevent its disclosure.
• Sec 42(2): If the private key corresponding to the public key listed in the Digital Signature Certificate has been compromised, then, the subscriber shall communicate the same without any delay to the Certifying Authority.
• He shall use the certificate only for the authorized purposes as specified in the certifying authority’s CPS.
• He shall notify any changes in the information without any delay.
• He shall terminate the use of the certificate if the information in the certificate is found to be incorrect and misleading.
• Penalties and Adjudications: Penalties and adjudication are provided under Chapter IX from Sec 43-47.

Penalties

Section 43: If any person without the permission of the owner or any other person who is in charge of a computer, computer system or computer network causes damage to it, then he shall be liable to pay damages by way of compensation to the person so affected.

Section 43A: Where a body corporate fails to protect any personal data which it possess or deals with in its computer resource, thereby causing wrongful loss or wrongful gain to any person, such body corporate shall be liable to pay damages by way of compensation to the person so affected.

Section 44: (a) If any person fails to furnish any document, return, report to the controller, or certifying authority fails to furnish the same, he shall be liable to a penalty not exceeding one lakh and fifty thousand rupees for each such failure;

(b) If any person fails to file any return or furnish any information, books or other documents within the time specified in the regulations, he shall be liable to a penalty not exceeding five thousand rupees for every day during which such failure continues

(c) If any person fails to maintain books of accounts or records, he shall be liable to a penalty not exceeding ten thousand rupees for every day during which the failure continues.

Section 45: If any person contravenes any rules or regulations made under this Act, for which no penalty has been separately provided, then he shall be liable to pay a compensation not exceeding twenty-five thousand rupees to the person affected by such contravention or a penalty not exceeding twenty-five thousand rupees.

Adjudication

Section 46: The Central Government shall appoint any officer not below the rank of a Director to the Government of India or an equivalent officer of a State Government to be an adjudicating officer for holding an inquiry in the manner prescribed by the Central Government. 

Section 47: While adjudging the quantum of compensation under this Chapter, the adjudicating officer shall consider the following factors: 

(a) the amount of gain of unfair advantage, wherever quantifiable, made as a result of the default; 

(b) the amount of loss caused to any person as a result of the default; 

(c) the repetitive nature of the default.

Offences under the Act: Offences are provided under Chapter XI from Sec 65-76

Section 65: Tampering with computer source documents: If any person conceals, destroys, or alters any computer source document intentionally, then he shall be punishable with imprisonment which may extend to three years, or fine which may extend to two lakh rupees or both.

Section 66: Computer related offences: Any person dishonestly, or fraudulently does any act as referred in Section 43 (damage to computer, computer system), then he shall be he shall be punishable with imprisonment for a term which may extend to three years or with fine which may extend to five lakh rupees or with both.

Section 66A: Sending offensive messages through any communication services: If any person sends offensive messages through any communication devices, he shall be punishable with imprisonment for a term which may extend to three years and with fine.

Section 66B: Receiving stolen computer’s resources or communication devices dishonestly: Any person dishonestly, or fraudulently receives or retains any stolen computer resource or communication device, then he shall be shall be punished with imprisonment of either description for a term which may extend to three years or with fine which may extend to rupees one lakh or with both. 

Section 66C: Identify theft: Any person dishonestly, or fraudulently make use of Electronic Signature, Password or any other Unique Identification Feature of any other person, then he shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine which may extend to rupees one lakh or both. 

Section 66D: Cheating by personation by the use of computer’s resources: Any person dishonestly, or fraudulently by means of any communication device or computer resource cheats by personating, then he shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine which may extend to one lakh rupees.

Section 66E: Violation of privacy: Any person intentionally captures, publishes, or transmits the image of a private area of any person without consent, then he shall be punished with imprisonment which may extend to three years or with fine not exceeding two lakh rupees, or with both. 

Section 66F: Cyber terrorism: Any person does any act electronically, or with use of computer with intent to threaten unity, integrity, security, or sovereignty of India, then he shall punishable with imprisonment for life.

Section 67: Publishing or transmitting obscene material in electronic form: Any person publishes, or transmits in electronic form any material which appeals to prurient interest, or if its effect is such as to tend to deprave and corrupt persons who are likely to read, see, or hear the matter contained in it, then he shall be shall be punished on first conviction with imprisonment of either description for a term which may extend to three years and with fine which may extend to five lakh rupees and in the event of a second or subsequent conviction with imprisonment of either description for a term which may extend to five years and also with fine which may extend to ten lakh rupees. 

Section 67A: Publishing or transmitting of material containing sexually explicit act, etc., in electronic form: Any person publishes, or transmits in electronic form any material which contains sexually explicit act, or conduct, then he shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with fine which may extend to ten lakh rupees and in the event of a second or subsequent conviction with imprisonment of either description for a term which may extend to seven years and also with fine which may extend to ten lakh rupees. 

Section 67B: Publishing or transmitting of material depicting children in sexually explicit act, etc. in electronic form: Whoever transmits or publishes any materials that depict children in sexually explicit act or conduct in any electronics form shall be sentenced for either description for a term which may extend to five years of imprisonment with a fine that could extend to rupees ten lakhs on the first conviction. And in the event of second conviction criminals could be sentenced for either description for a term that could extend to 7 years along with a fine that could extend to rupees ten lakhs.

Section 71: Misrepresentation: Whoever makes any misrepresentation to, or suppresses any material fact from the Controller or the Certifying Authority for obtaining any licence or electronic signature certificate, as the case may be, shall be punished with imprisonment for a term which may extend to two years, or with fine which may extend to one lakh rupees, or with both.

Section 72: Breach of confidentiality and privacy: If any person who has secured access to any electronic record, book, register, correspondence, information, document or other material without the consent of the person concerned discloses such electronic record, book, register, correspondence, information, document or other material to any other person, then he shall be punished with imprisonment for a term which may extend to two years, or with fine which may extend to one lakh rupees, or with both. 

Section 72A: Disclosure of information in breach of lawful contract: If any person who has secured access to any material containing personal information about another person, with the intent to cause or knowing that he is likely to cause wrongful loss or wrongful gain discloses, without the consent of the person concerned, or in breach of a lawful contract, then he shall be punished with imprisonment for a term which may extend to three years, or with fine which may extend to five lakh rupees, or with both.

Section 73: Publishing False digital signature certificates: If any person publishes an Electronic Signature Certificate, or make it available to any other person with the knowledge that Certifying Authority has not issued it, or Subscriber has not accepted it, or Certificate has been revoked or suspended then he shall be punished with imprisonment for a term which may extend to two years, or with fine which may extend to one lakh rupees, or with both. 

Section 74: Publication for fraudulent purpose: If any person knowingly creates, publishes, or otherwise makes available Electronic Signature Certificate for any fraudulent or unlawful purpose, then he shall be punished with imprisonment for a term which may extend to two years, or with fine which may extend to one lakh rupees, or with both. 

Other Provisions

Section 75: Act to apply for contravention or offence that is committed outside India: If any person has committed an offence, or contravention committed outside India, and if the act or conduct constituting the offence or contravention involves a computer, computer system or computer network located in India, then the provisions of this Act shall apply also to any offence or contravention committed outside India by any person irrespective of his nationality.

Section 76: Confiscation: Any computer, computer system, floppies, compact disks, tape drives or any other accessories related thereto, in respect of which any provision of this Act, rules, orders or regulations made thereunder has been or is being contravened, shall be liable to confiscation However, if it is proved that such resources were not used in committing fraud then only person in default will be arrested.

Conclusion

The global nature of cyber crimes has started a war against them both nationally and internationally. International cooperation is highly needed in these times of constant scientific developments in computer and network technology and the threats imposed by cyber criminals. All the above mentioned international regimes are aimed towards achieving that cooperation among various countries to fight cyber crimes and regulate cyber law.

India, even though not a signatory to the Convention on Cyber Crimes, is also trying its best to fight cyber crimes. With the enactment of the IT Act, 2000, and the IT (Amendement) Act, 2008 various developments related to cyber law have occurred in India. However, proper implementation of cyber law is still needed as many people are not aware of the threats the internet can pose. 

References

• Explanatory Report to the Convention on Cybercrime, Para 304, Date of Access: 10.10.2019 <https://rm.coe.int/16800cce5b>
• The Budapest Convention on Cybercrime: a framework for capacity building; GFCE; Dated: 07.12.2016; Date of Access: 10.10.2019 <https://www.thegfce.com/news/news/2016/12/07/budapest-convention-on-cybercrime>
• Chapter III: Emerging International Cyber Law Regime; Shodhganga; Date of Access: 10.10.2019 <https://shodhganga.inflibnet.ac.in/bitstream/10603/120167/5/chapter%203.pdf>
• Xingan Li: International Actions against Cybercrime: Networking Legal Systems in the Networked Crime Scene; Webology, Vol 4, No. 3, September, 2007, Date of Access: 10.10.2019 < http://www.webology.org/2007/v4n3/a45.html#footnote29>
• History And Background Of The Model Law: Guide to Enactment of the UNCITRAL Model Law on Electronic Commerce (1996); Lex Mercatoria; Date of Access: 11.10.2019 

<https://www.jus.uio.no/lm/un.electronic.commerce.model.law.1996/history.background.html>

• UNCITRAL Model Law on Electronic Commerce; IT Law Wiki; Date of Access: 11.10.2019 

<https://itlaw.wikia.org/wiki/UNCITRAL_Model_Law_on_Electronic_Commerce>

• Anuraj Singh: Studies Report on Cyber Law in India & Cybercrime Security; International Journal of Innovative Research in Computer and Communication Engineering; Vol. 5 Issue 6; June 2017 <www.ijircce.com>
• Definition and Duties of Subscriber; LL.B. Corner; Dated: 10.02.2019; Date of Access: 13.10.2019 

< https://www.llbcorner.co.in/2019/02/definition-and-duties-of-subscriber.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.

The post Regulatory Framework for Cyber Crimes : Facts to know about appeared first on iPleaders.

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

If you have been eyeing multiple business law or corporate law-related courses at LawSikho, this is a program you do not want to miss. Here comes the much anticipated and awaited Corporate Law Library.

Imagine getting access to all our current business law and corporate law courses for a price of Rs. 50 a day ( this is an introductory offer only for the month of October).

Yes, no kidding. You have to pay upfront for 5 years, but that’s what a lucky few are essentially going to pay for our Corporate Law Library – Total Access program for all our corporate law and business law courses, current and those that are going to get launched in the next 5 years (we have an amazing number of courses lined up, do check them out). 

Let’s get to the maths later, but let us discuss what is the Corporate Law Library – Total Access by LawSikho first. 

What is the Corporate Law Library? Why are we doing this?

While Master Access by LawSikho was a great success, it had many courses that are not relevant for corporate lawyers or those who want to be a corporate lawyer in the future. 

Corporate lawyers are busy people, they have little patience to go through the material that is not relevant for them! Also, why should they pay for litigation courses they are not going to use as was the case with Master Access. 

And we also launched a Litigation Library, which was a big hit, so we have been under immense pressure to launch a Corporate Law Library as well.

Master Access is not open anymore, and it is quite certain that we are increasing the price next time we launch it again in 2020, as already stated at the time of launch.

Hence, we decided to launch the Corporate Library by LawSikho to cater to transactional lawyers, in-house counsels and aspiring corporate lawyers in the meantime. Anyway, we have been getting a lot of requests for this! This is probably the second most popular request after a request for a LawSikho course bundle for law students, which would anyway take a while to launch.

The Corporate Law Library is meant for our power users who wish to access our entire course and resources library related to corporate law and business laws. 

We have launched many valuable and very popular business and corporate law courses. You can find the list below. These courses have already proven their mettle thanks to the amazing performance of those who have already done these courses. I am sure that you will find the current list very impressive. However, that is not all.

If you join this VIP membership program, you get access to all our new corporate law courses that we will launch in the next 5 years part from existing ones. You can access these courses for no further charges for the next 5 years.

You will have complete and unconditional access to this entire library of our corporate law courses, and you can use them to enhance your transactional and negotiation prowess and/or grow rapidly in your career.

What are the benefits you can expect if you buy the Corporate Law Library by LawSikho?

• Learn whatever you need to learn on the go. Let’s say there is a meeting tomorrow and you need to quickly brush up your knowledge about a certain area of law. Just look up our course library for the step-by-step guides and practice notes that will help you to prepare in a short time for your meeting.
• Need high-quality templates? Download from the library. Can’t find one? Ask us directly, we are always looking to add new documents to our resources library. We are always ready to help you out as a member of a VIP program.
• Keep learning unlimited skills by participating in any number of courses you like for the next 5 years. Join any class you want. Solve any skill challenges you like and get personal feedback so that you can improve.
• Become more efficient – reduce time spent on looking for research, processes and templates. You will prepare for matters, briefings, and meetings faster than ever, and that means you can handle more clients and have more free time in life.
• Learn to strategize negotiations and transactions. Develop a habit of planning ahead with our help. Develop in-depth knowledge and intuition which would help you to anticipate what is coming ahead. 
• As you join our various specific courses, you will also benefit from various profile building programs that we offer. You will publish articles, build a social media presence and develop a powerful professional network that forwards you in your goal to succeed as a lawyer, if you wish to avail those services.
• We have made our ultra-premium Legal Practice Development and Management course a part of this program, which means you can learn how to grow your law firm or your practice, or even get to partnership faster using your ability to land top clients.

What are the courses you get access to if you buy yourself the Corporate Law Library?

Premium Courses

• Diploma in Intellectual Property, Media and Entertainment Laws
• Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution
• Diploma in M&A, Institutional Finance and Investment Laws (PE and VC transactions)
• Diploma in Cyber Law, Fintech Regulations and Technology Contracts
• Diploma in Entrepreneurship Administration and Business Laws
• Diploma in Companies Act, Corporate Governance and SEBI Regulations
• Certificate Course in Real Estate Laws
• Certificate Course in Advanced Corporate Taxation
• Certificate Course in Insolvency and Bankruptcy Code
• Certificate Course in Legal Practice Development and Management
• Certificate Course in Media and Entertainment Law: Contracts, Licensing, and Regulations
• Certificate Course in Securities Laws, Insider Trading and SEBI Litigation
• Dream Job Bootcamp
• Certificate Course in Technology Contracts
• Certificate Course in Import-Export, Customs laws, and Regulation
• Certificate Course in Consumer Law

Upcoming courses

• Certificate Course in Environmental Law (expected – February 2020)
• Certificate Course in Banking and Finance Transactions and Disputes (expected – January 2020)
• Certificate course in Capital Markets (expected – March 2020)
• Any other business law course we may add to LawSikho in the next 5 years!

Although you will have access to the above courses for a period of 5 years, if you want certification for a course, you have to complete all course criteria for that course within a maximum period of 1 year.

Example 1. If you take our Executive Certificate course in IBC or Capital Markets and start such a course let’s say from 1st of November, you have to finish the course by 31st October of the following year. 

Example 2: If you take our newly launched Executive certificate course on Asteroid Laws (for example, an imaginary subject as of now) after completion of 4 years 11 months after buying Corporate Law Library, you can continue to access that particular course for the next 1 year or until you finish it, whichever is earlier. Basically, we give you maximum possible leverage.

Example 3: If you take our Diploma in Companies Act, Corporate Governance and SEBI Regulations course, and start such a course let’s say from 1st of January, you have to finish the course by 31st December in order to be eligible for a certificate. If you don’t care about certificate, then you can access any class and any material at any time you like.

Please note that due to the sheer number of courses included in this Corporate Law Library package and the relatively low cost, it is not possible for us to give you hard copy materials free of cost. However, we will provide you any hard copy you want on a no-profit no-loss basis (just pay us the printing and courier costs) and you can request the hard copy material of as many courses as you want.

How much will this cost me?

If you just enroll in the courses available right now and pay for them one-by-one, it would cost you around three lakhs and twenty thousand rupees.

The 3 future courses that we are additionally promising will be priced similarly and will cost over 60 thousand altogether. That’s a total of at least 3.8 lakhs.

Basically, if you bought each of the courses in this Corporate Law Library – Total Access package, one-by-one, you would be paying around 3.8 lakhs or more for all these courses.

For a limited period of time, till the end of this month, we are offering this entire package to 20 users for a price of INR 90,000, inclusive of all taxes and charges! 

If you buy any of the above courses, usually you have access to the course for only 3 years. However, as a part of the Corporate Law Library – Total Access program, you will have access to all these courses for a period of 5 years starting from the day of your enrollment.

This is a premium program, for those who love our courses. There are amazing benefits that come as a part of this package that we do not offer to other customers. Hence, we intend to keep this course accessible to only a limited number of people. And that number is just 20 for now.

Once these 20 slots are gone, we will not enroll anybody else and close down the program. Also, in any case, we are running this program only till the end of October, and after that, we are closing it down.

If you really want it, you have reasons to hurry. We intend to keep these packages exclusive and limited to a few users only. It is a VIP package.

How is it just Rs. 50 per day?

Multiply 50 with 365 and then with 5, because you will get to use this product for 365 days for 5 years. You will get a figure of INR 91,250. We are charging only INR 90,000, including taxes. There are no hidden charges of any sort.

Money-back guarantee

Our amazing refund policy will apply to the Corporate Law Library – Total Access by Lawsikho also. Try the Corporate Law Library – Total Access for 30 days, attend at least 4 classes and solve at least 4 assignments of any single course during that period, and you will be eligible for a full refund for up to the next 15 days. Basically, if you do not like the Corporate Law Library – Total Access program after using it properly for 30 days, then between the 30th and 45th day you can claim a full refund. Here is the detailed refund policy.

Can I upgrade to Master Access later?

Yes, you can upgrade by paying the difference between what you have already paid and the price of Master Access at that time. In fact, we will give preference to Corporate Law Library Members if they want to upgrade to Master Access.

What if I have already paid for 2 or more courses on LawSikho? Do I get any extra benefit?

We expect people who have taken at least one course and loved it to go for this Corporate Law Library – Total Access package. However, if you have done 2 or more courses from LawSikho already (that are already included in this Corporate Law Library course package), you can simply pay the difference between what you have already paid to us in total so far, and ninety thousand rupees, instead of paying the entire Corporate Law Library – Total Access fee. 

If you have already spent over INR 90,000 or more on litigation-related courses on LawSikho, we will give you Corporate Law Library – Total Access free of cost. If you bought less than two (2) courses from LawSikho so far, this benefit does not apply. This rule also does not apply if you have taken any course from NUJS in the past. We cannot refund any money if you have spent more than 90,000 already on LawSikho. Please note than more than one person cannot combine to benefit from this provision. Corporate clients or those who are sponsored by their companies would not get this benefit.

Training methodology and how the access works

The course details, methodology and system for each course is described in the relevant course page.

At the time of enrolment you will get access to the following:

• Study materials on our online Learning Management System (LMS) to the courses that are launched as of the given date under the Corporate Law Library – Total Access by Lawsikho.  

• You can access the same on your Android or iOS App as well. The study materials are downloadable inside the app for offline access on your phone.

• You will get added to a separate discussion group for each of the courses that you specifically join. 

Please note that some courses have live classes, assignments and personal feedback while others do not. This is because some courses are premium while others are not. Please note the same level of service and content that is available to other students of these courses will also be available to Corporate Law Library members. 

Will I get printed materials? 

You can take printed material for any course by paying the additional nominal cost of printing, courier and handling. No hard copy is included in this package otherwise. We do not make any profit from this activity, so you only pay for the actual costs.

How many courses can you participate in at a time? 

You will have unlimited access to all study materials for courses that are launched to date in the Corporate Law Library. You can perform exercises, get feedback and obtain certificates for any number of courses that are available in that period. For courses listed above that are to be launched in the future, you will be provided access when they are launched. 

We will not limit your participation within the courses to which you have access, but how you manage your time to extract maximum value is up to you. 

The list of classes and exercises will not be customized as per your choice. You have to go with the batch that you join according to the schedule of the batch.

Who should opt for the Corporate Law Library?

The course is ideal for litigators who wish to expand their practice as well as become more efficient at their work. Corporate Law Library will increase your knowledge manyfold, and enable you to deal with diverse practice areas effortlessly. Some in-house counsels also may find it very useful. Law students who are interested in Corporate Law may also take the same.

However, we suggest that only those who have taken one or two courses from LawSikho.com already and are familiar with our methodology and systems should invest in Corporate Law Library. We prefer our power users who regularly take our various courses as Corporate Law Library users rather than those who are trying out our courses for the first time.

Click Above

Will I receive recruitment and internship support? are there any placement guarantees?

We are the only organization in India that teaches this kind of comprehensive and practical course. Many employers, law firms and companies are happy to recruit our high performing students. If you do well in your exercises and classes, we can help you to get jobs, internships and assessment internships in good law firms, with renowned lawyers as well as in various companies. However, we recommend only those who we believe are ready to do the job they are applying for and provide no guarantee of placement or recruitment of any kind. You have to put in efforts from your side as well to make it work for you!

Also, this Corporate LawLibrary is more suitable for practicing lawyers and not so much for job seekers. Please consult us over a call if you are looking to do a course for increasing your skill levels so that you can get a better job. 

What are the passing criteria?

You have to submit at least 50% exercises and 3/6 writing assignments (as the case may be) in executive certificate courses and 50% of the exercises and 10 writing assignments in diploma courses. The pass criteria of respective courses will remain the same for Corporate Law Library members and refer to respective course pages for the same.

You can start any course of your choice and you can choose as many courses as you want to start at a time. Before starting the course, you have to inform us regarding the same by writing an email to support@lawsikho.com and you will be formally added to the next batch available for attending classes. Once you have started a course, you have to complete it within the duration given for the course to be eligible to get the certificate.

You can join in any online class of any course any week throughout the period of your access to the course. You can also attempt the exercise and get feedback on the same throughout the duration of your access. Access to the course material and mentors and experts will also be available during the period of 5 years of access. But, once you have initiated a course and have not completed it within the given time, you will not be considered for the certificate. 

If you start the course without informing us first and submit exercises randomly, we will provide feedback to you but such submissions will not be considered for the purpose of the certificate. 

Who will issue the certificate? What is the value of the certificate? 

This program or any of our courses have no recognition, no affiliation and no certification from any university, government or third party. These courses are certified by LawSikho.com, run by a private limited company based out of India. We follow our own processes and standards which are clearly and transparently laid down on this website. We do not easily issue certificates to everyone who takes our course, but strictly enforce certification criteria. This ensures that graduates of our courses are of very high quality, and far exceeds the expectations of the legal industry. This is why our certificates are widely respected. Leading companies in India and abroad use our courses for their employees or sponsor their employees to pursue our courses. Our corporate clients include leaders in their domain like Microsoft, Samsung, ICICI Bank, ITC, Mahindra & Mahindra, Gates Foundation etc.

What can I do if I do not understand something or need doubt clarification? 

• You can read FAQs of the relevant course, or call the number provided on lawsikho.com if it is an administrative matter
• You can write your queries on the discussion board of the LMS
• You can ask your queries in the Whatsapp group in which you will be added after enrolling in the course
• You can discuss the same in the class with faculty
• You can ask our support team to help you out

To enroll in Corporate Law library click here.

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:

https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

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AIBE: Mock test 8, Solve the Mock Test to strengthen your Preparation for All India Bar Exam and increase your chances of clearing the paper.

Mock Test 8 

1.) Which classification of offence comes under criminal procedure code 

A.) COGNIZABLE AND NON-COGNIZABLE 

B.) BAILABLE AND NON-BAILABLE 

C.) SUMMONS CASES AND WARRANT CASES 

D.) ALL OF THE ABOVE 

2.) COGNIZABLE OFFENCE UNDER IPC HAS BEEN DEFINED 

A.) UNDER SECTION 2(a) OF Cr PC 

B.) UNDER SECTION 2(c) OF cRPC 

C.) UNDER SECTION 2(i) OF CRPC 

D.) UNDER SECTION 2(1) OF CRPC 

3.) NON COGNIZABLE OFFENCE HAS BEEN DEFINED 

A.) UNDER SECTION 2(a) 

B.) UNDER SECTION 2(c) 

C.) UNDER SECTION 2(i) 

D.) UNDER SECTION 2(l) 

4.) IN A BAILABLE OFFENCE, THE BAIL IS GRANTED AS A MATTER OF RIGHT 

A.) BY THE POLICE OFFICER 

B.) BY THE COURT 

C.) BOTH BY THE POLICE AND THE COURT 

D.) EITHER a or b 

5.) COMPLAINT AS PROVIDED UNDER SECTION 2(d) OF CrPC 

A.) CAN BE IN WRITING ONLY 

B.) CAN BE ORAL 

C.) EITHER IN WRITING OR ORAL 

D.) CAN BE BY GESTURES 

6.) IS IT MANDATORY TO PRODUCE THE PERSON ARRESTED BEFORE THE MAGISTRATE, WITHIN 24 HOURS OF HIS HOURS, UNDER 

A.) SECTION 56 OF CrPC 

B.) SECTION 57 OF CrPC 

C.) SECTION 58 OF CrPC 

D.) SECTION 59 OF CrPC 

7.) SECTION 91 OF CrPC DOES NOT APPLY TO 

A.) THE COMPLAINANT 

B.) THE ACCUSED 

C.) THE WITNESS 

D.) THE PERSON WHO IS NEITHER A COMPLAINANT NOR AN ACCUSED NOR A WITNESS 

8.) A REFUSAL TO ANSWER QUESTIONS PUT TO A WITNESS UNDER SECTION 161 CrPC IS AN OFFENCE UNDER 

A.) SECTION 176 IPC 

B.) SECTION 179 IPC 

C.) SECTION 187 IPC 

D.) NONE OF THE ABOVE 

9.) THE INVESTIGATING OFFICER DURING THE INVESTIGATION RECORDS THE STATEMENTS OF A WITNESS UNDER 

A.) SECTION 160 CRPC 

B.) SECTION 162 CRPC 

C.) SECTION 161 CRPC 

D.) SECTION 164 CRPC 

10.) A STATEMENT OF A WITNESS RECORDED UNDER SECTION 161 OF CRPC, IN WRITING DURING INVESTIGATION AND IS SIGNED BY THE PERSON MAKING THE STATEMENT IS HIT BY 

A.) SECTION 161(2) CRPC 

B.) SECTION 161(3) CRPC 

C.) SECTION 162(1) CRPC 

D.) SECTION 162(2) CRPC 

11.) WHICH OF THE FOLLOWING IS IRRELEVANT FACT UNDER EVIDENCE ACT, 1872? 

A.) FACTS REGARDING MOTIVE 

B.) FACTS REGARDING STATEMENTS WITHOUT RELATED CONDUCT 

C.) FACTS REGARDING STATEMENTS CLUBBED WOTH CONDUCT 

D.) FACTS WHICH MAKE OTHER RELEVANT FACT AS HIGHLY PROBABLE 

12.) TEST OF COMPETENCY OF WITNESS IS 

A.) HER BEING INTELLIGENT 

B.) MUST BE MAJOR 

C.) UNDERSTANDING THE NATURE OF QUESTION 

D.) CAPABLE OF UNDERSTANDING THE NATURE OF QUESTION AND GIVING RATIONAL ANSWER 

13.) WHICH ONE IS EXCEPTION TO ‘RULE OF HEARSAY’ EVIDENCE 

A.) DYING DECLARATION 

B.) FACTS FORMING PART OF SAME TRANSACTION 

C.) FACTS FORMING PLEA OF ALIBI 

D.) FACTS REGARDING CHARACTER OF ACCUSE 

14.) COMMUNICATION BETWEEN HUSBAND AND WIFE IS TREATED AS PRIVILEGED IF COMMUNICATION: 

A.) WAS MADE DURING MARRIAGE WITH PROMISE OF CONFIDENTIALITY 

B.) WAS MADE DURING MARRIAGE, EVEN WITHOUT PROMISE OF CONFIDENTIALITY 

C.) WAS MADE BEFORE MARRIAGE WITH PROMISE OF CONFIDENTIALITY 

D.) IS MADE AFTER MARRIAGE 

15.) LEADING QUESTIONS CAN BE ASKED EVEN WITHOUT PERMISSION OF COURT DURING 

A.) EXAMINATION IN CHIEF 

B.) CROSS EXAMINATION 

C.) RE EXAMINATION 

D.) A and C only 

16.) WHAT DO YOU MEAN BY WORD EVIDENCE? 

A.) EVERY FACT CONNECTED WITH CASE 

B.) FACTS INTRODUCED IN COURT OF LAW 

C.) BOTH 

D.) NONE 

17.) WHAT IS FACT IN ISSUE? 

A.) FACTS INVOLVED INDIRECTLY 

B.) NECESSARY FACTS TO ARRIVE OR DETERMINE 

C.) BOTH 

D.) NONE 

18.) RELEVANT FACT IS? 

A.) FACTS LOGICALLY RELEVANT TO ANY FACT IN ISSUE 

B.) FACTS LEGALLY RELEVANT TO ANY FACT IN ISSUE 

C.) BOTH 

D.) NONE 

19.) WHICH OF THE FOLLOWING IS CORRECT OF A STANDARD FORM CONTRACT? 

A.) IT IS A VALID CONTRACT 

B.) ONE PARTY HAS NO CHOICE BUT TO ACCEPT AND SIGN THE CONTRACT 

C.) BOTH A AND B 

D.) THE CONSENT IS NOT A FREE CONSENT 

20.) AS A GENERAL RULE, AN AGREEMENT MADE WITHOUT CONSIDERATION IS- 

A.) VOID 

B.) VOIDABLE 

C.) VALID 

D.) UNLAWFUL 

21.) A CONTINGENT AGREEMENT BASED ON AN IMPOSSIBLE EVENT UNDER SECTION 36 IS – 

A.) VOID 

B.) VOID TILL IMPOSSIBLE IS KNOWN 

C.) VOID WHEN EVEN BECOMES IMPOSSIBE 

D.) VOIDABLE 

22.) THE CONSENSUS AD-IDEM MEANS? 

A.) GENERAL CONSENSUS 

B.) REACHING AN AGREEMENT 

C.) MEETING OF MINDS UPON THE SAME THING 

D.) ALL OF THE ABOVE 

23.) IN FAMOUS CARLILL V. CARBOLIC SMOKE BALL CO. (1893) 1 QBD 256, THE HON’BLE COURT HELD THAT THE CONTRACT WAS ACCEPTED ON BEING – 

A.) COMMUNICATED 

B.) ACTED UPON 

C.) REFUSED 

D.) ADVERTISED 

24.) INADEQUACY OF CONSIDERATION DOES NOT MAKE THE CONTRACT – 

A.) VOID 

B.) VOIDABLE 

C.) UNENFORCEABLE 

D.) NEITHER VOID NOR VOIDABLE 

25.) A JUS IN PERSONAM MEANS A RIGHT AGAINST – 

A.) A SPECIFIC PERSON 

B.) THE PUBLIC AT LARGE 

C.) A SPECIFIC THING 

D.) NONE OF THE ABOVE 

26.) EXPOSURE OF GOODS BY A SHOPKEEPER IS – 

A.) OFFER FOR SALE 

B.) INVITATION TO OFFER 

C.) OFFER 

D.) ACCEPTANCE 

27.) The concept of Fundamental Duties was taken from which country? 

A.) USA 

B.) IRISH 

C.) USSR 

D.) AUSTRALIA 

28.) The directive principles of state policy are inspired by the: 

A.) German constitution 

B.) Irish constitution 

C.) US constitution 

D.) Australian constitution 

29.) Which schedule of the constitution mentions anti-defection provisions? 

A.) First 

B.) fifth 

C.) eighth 

D.) tenth 

30.) Which is not an essential for a valid contract 

A.) proposal 

B.) acceptance 

C.) consideration 

D.) meeting 

31.) A and B enter into a contract. As per the provisions of the contract A promises to deliever 200kg of rice within a specified period of time.However, during the transfer of rice by ship, the ship sinks.What kind of contract is this 

A.) Quasi Contract 

B.) Voidable contract 

C.) Contigent Contract 

D.) Revokable Contract 

32.) Under order XVI of the CPC, list of witnesses for both parties are to be presented by both the parties within ___ days of the date on which the issues are settled: 

A.) 15 

B.) 30 

C.) 14 

D.) 60 

33.) Which of the following statements are not relatable to the expressions defined in Section 3 of the evidence act 

A.) ~That a man has a certain reputation, is a fact. 

B.) court includes arbitrators 

C.) ~Fact includes any mental condition of which a person is conscious of 

D.) ~A fact is said to be not proved when it is neither proved nor disproved. 

34.) A is accused of murdering B. The following facts are established in trial: A was spotted approaching B’s house a few minutes before the murder. A was seen carrying a knife. A’s knife was blood stained when he came out of B’s house. What sort of evidence are these, in the parlance of Indian Evidence Act? 

A.) ~Primary Evidence 

B.) ~Secondary Evidence 

C.) circumstantial evidence 

D.) direct evidence 

35.) Who said “law and society developed from status to contract”? 

A.) ~Rousseau 

B.) ~HLA Hart 

C.) ~Kelsen 

D.) Sir Henry Maine 

36.) Who is known as the pioneer of Historical School of law 

A.) Jermy Bentam 

B.) Austin 

C.) Ihering 

D.) Savigny 

37.) Which of the following were among the thinkers in the Social Contract Theory 

A.) Hobbes 

B.) Rousseau 

C.) BOTH A AND B 

D.) Aristotle 

38.) The Muslim Women (Protection of Rights on Divorce) Act 1986 was passed as a result of which of the following Judgments? 

A.) Shah Bano Judgement 

B.) ~Sharda Judgment 

C.) ~Arif Mohammad Khan Judgment 

D.) none of the above 

39.) WHEN WAS THE ADVOCATE ACT INTRODUCED? 

A.) 1962 

B.) 1959 

C.) 1961 

D.) 1966 

40.) THE BAR COUNCIL OF INDIA CONSIST OF FOLLOWING AS EX-OFFICIO MEMBER 

A.) ATTORNEY GENERAL OF INDIA 

B.) SOLICITOR GENERAL OF INDIA 

C.) BOTH A AND B 

D.) NONE OF THE ABOVE 

41.) INDIAN BAR COMMITTEE WAS CONSTITUTED FIRST TIME UNDER THE CHAIRMANSHIP OF SIR ADWARD CHAMIER IN THE YEAR- 

A.) 1927 

B.) 1961 

C.) 1949 

D.) 1923 

42.) POWER OF DISCIPLINARY COMMITTEE UNDER THE ADVOCATE ACT IS PROVIDED UNDER 

A.) SECTION 42 

B.) SECTION 53 

C.) SECTION 40 

D.) SECTION 36 

43.) THE INDIAN COUNSIL OF ARBITRATION WAS ESTABLISHED IN 

A.) 1956 

B.) 1976 

C.) 1965 

D.) 1996 

44.) LEX ARBITRI MEANS 

A.) ARBITRAL TRIBUNAL SITTING IN INDIA CAN APPLY THE BUY THE SINGAPORE 

B.) JUST LAW 

C.) ARBITRARY LAW 

D.) NONE OF THE ABOVE 

45.) IN INDIA THE ARBITRATION AND CONCILIATION ACT WAS ENACTED IN 

A.) 1992 

B.) 1993 

https://www.lawsikho.com/mock_tests/13359/question_paper 6/15 

11/6/2017 LawSikho 

C.) 1994 

D.) 1996 

46.) SECTION 10 SUB SECTION (i) OF THE ARBITRATION AND CONCILIATION ACT TALKS ABOUT 

A.) POWER OF ARBITRATION 

B.) NUMBERS OF ARBITRATORS 

C.) CAPACITY OF ARBITRATIONS 

D.) NONE OF THE ABOVE 

47.) FOREIGN COURT UNDER SECTION 2(5) OF CPC MEANS 

A.) A COURT SITUATED OUTSIDE INDIA 

B.) A COURT SITUATED OUTSIDE INDIA THE AUTHORITY OF GOVERNMENT OF INDIA 

C.) A COURT SITUATED IN INDIA APPLYING FOREIGN LAW 

D.) ALL OF THESE 

48.) JUDGEMENT UNDER SECTION 2(9) MEANS – 

A.) A DECREE 

B.) DISMISSAL OF AN APPEAL 

C.) STATEMENT OF GROUNDS OF AN ORDER OR DECREE 

D.) ALL THE ABOVE 

49.) PRINCIPLE OF RES-SUB JUDICE IS PROVIDED IN 

A.) SECTION 10 CPC 

B.) SECTION 11 CPC 

C.) SECTION 13 CPC 

D.) SECTION 14 CPC 

50.) DOCTRINE OF RES-JUDICATA AS CONTAINED IN SECTION 11 OF CPC IS BASED ON THE MAXIM 

A.) NEMO DEBET LIS VEXARI PRO UNO ETEADEM CAUSA 

B.) INTEREST REIPUBLICAE AT SITS FINIS LITIUM 

C.) BOTH A AND B 

D.) EITHER A OR B 

51.) Principle of res-judicata applies between 

A.) Between co-defendents 

B.) between co- plaintiffs 

C.) Both a and b 

D.) Niether a nor b 

52.) the validity of a foregin judgement under Section 13 of the CPC can be questioned in 

A.) in a civil court only 

B.) in a criminal court only 

C.) Both a and b 

D.) Niether a nor b 

53.) Under Section 15 of CPC every suit shall be instituted in 

A.) in a civil court only 

B.) the court of lower grade 

C.) the court of higher grade 

D.) All the above 

54.) X residing in Delhi published defamatory statements against Y in Calcutta, Y can file a suit against x at 

A.) Delhi 

B.) Calcutta 

C.) Anywhere in India 

D.) Either A or B 

55.) A suit for breach of contract can be filed at a place 

A.) where the contract was made 

B.) Where the breach of contract was done 

C.) Anywhere in India 

D.) Both A and b 

56.) In every complaint under Section 26 of the CPC, facts should be proved by 

A.) oral evidence 

B.) Affidavit 

C.) document 

D.) oral evidence as well as document 

57.) The existence of statutes of limitation are due to 

A.) Long dormant claims have more of cruelty then justice in them 

B.) The defendant may have lost evidence to dispute state claim 

C.) Persons with good cause should pursue them with reasonable diligence 

D.) All the above 

58.) Limitation Act is applicable to 

A.) Civil Suits 

B.) Criminal Suits 

C.) Both are correct 

D.) Civil, all the above 

59.) a company fails to hold a statutory meeting,the penalty for the same would be 

A.) Rs 500 per day default 

B.) Wound up 

C.) Rs 1000 per day default,

D.) None of these 

60.) Free transferability is mandatory in, 

A.) Listed Company 

B.) Company ltd by shares 

C.) Public company 

D.) Private company 

61.) the MOA of the company shall be as per which table 

A.) Table A 

B.) Table B 

C.) Table C 

D.) Table D 

62.) Which of the following clauses cannot be amended from MOA 

A.) Objects Clause 

B.) Liability Clause 

C.) Association clause 

D.) registered office clause 

63.) Under IPC, nothing is an offence which is done by a child under 

A.) Eight years 

B.) Ten years 

C.) Seven years 

D.) Twelve years 

64.) Right to private defence of the body extends to voluntarily causing deaths,if the offence which occasions the exercise of the right 

A.) reasonably causes an apprehension death will be caused 

B.) Reasonably causes apprehension that simple injury would be caused 

C.) is of escaping the stolen property immediately after the theft 

D.) Is arresting a person,running away after voluntarily causing hurt 

65.) Under Section 498 A cruelty means and includes 

A.) Only demand of dowry 

B.) Only physical touyrture 

C.) Both mental and physical torture 

D.) None of the above 

66.) What is an offence where preparation itself of an offence is punishable 

A.) Theft 

B.) Dacoity 

C.) Murder 

D.) Rape 

67.) In Rex vs. Govinda,distinction between two points were explained 

A.) Section 34 and 149 

B.) Section 202 and 304 

C.) section 299 and 300 

D.) Section 403 and 405 

68.) Sexual intercourse by a man with his wife aged about 14 years is 

A.) No offence 

B.) Offence of rape 

C.) intercourse with own wife is not rape 

D.) As there was consent, hence A cannot be held guilty of rape 

69.) who categorised the subject of jurisprudence as expositorial and censorial jurisprudence 

A.) Holland 

B.) Bentham 

C.) Kelson 

D.) Paton 

70.) Who described jurisprudence as lawyers extra version 

A.) Savigny 

B.) Salmond 

C.) Julius Stone 

D.) Buckland 

71.) Fiction theory is related to which of the following concepts 

A.) ownership 

B.) liability 

C.) justice 

D.) Legal personality 

72.) Can a Muslim man marry a Kitabiya Girl 

A.) Valid 

B.) Void 

C.) Irreguler 

D.) None of these 

73.) The dissolution of Muslim Marriage Act is bassed on which school 

A.) Hanafi School 

B.) Shafi School 

C.) Maliki School 

D.) Zaidi School 

74.) Under the Hindu Adoption and Maintenance Act 1956, a female Hindu cannot adopt if 

A.) She is married 

B.) She is not married 

C.) She is a widow and has no son or daughter 

D.) She cannot adopt at all 

75.) A child born of void and voidable marriage, under Hindu Law is 

A.) Legitimate 

B.) Illegitimate 

C.) Illegal 

D.) None of these 

76.) The Term Lock Out under Industrial Dispute Act has been defined in 

A.) Sec2(1) 

B.) Sec2(0) 

C.) Sec3(1) 

D.) Sec2(M) 

77.) The term Lay off under the Industrial Dispute Act has been defined under 

A.) Sec2(kkk) 

B.) Sec2(0) 

C.) Sec2(1) 

D.) Sec3(1) 

78.) The trade Union Act was enacted 

A.) 1926 

B.) 1946 

C.) 1947 

D.) 1988 

79.) The Minimum Wages Act has been described in 

A.) The Trade Union Act 

B.) Industrial dispute Act 

C.) Minimum Wages Act 

D.) None of the above 

80.) The minimum wages Act was enacted in 

A.) 1921 

B.) 1923 

C.) 1947 

D.) 2007 

81.) The trade Union Act provide for 

A.) Registration of trade Union 

B.) Registration of trade unions for worker 

C.) Recognition of registration of trade union as juristic person 

D.) All the above 

82.) Supremacy of law, Equality before the law and predominance of legal spirit are the basic principle of the doctrine of 

A.) Colorable legislation 

B.) separation of powers 

C.) Rule of law 

D.) excessive delegation 

83.) Rule of law is an antithesis of arbitrariness in all civilised society 

1. A) Justice H.R Khanna 

B.) Chief Justice Ray 

C.) Justice Chandrachud 

D.) Justice Bhagwati 

84.) Maxim delegatus non potest del means 

A.) Delegate can further delegate 

B.) delegate cannot further delegate 

C.) Delegate must protest delegation objectively 

D.) None of the above 

85.) Consumer Protection Act is predominantly based on the UN General Assembly resolution with due negotiation in the 

A.) UNCITRAL 

B.) UNCTAD 

C.) UN ECOSOC 

D.) None of the above 

86.) The Consumer Protection Act was enacted in 

A.) 1985 

B.) 1986 

C.) 2006 

D.) 2008 

87.) Appeal against claims tribunal under the Motor Vehicles Act 1988 can be made under 

A.) Section 171 

B.) Section 172 

C.) Section 173 

D.) Section 174 

88.) An amendment in case of Motor Vehicles Act 1994, compensation in case of death of the person is 

A.) Rs25000 

B.) Rs 50000 

C.) Rs 70000 

D.) Rs 90000 

89.) Under the vicarious liability, the liability is 

A.) Joint 

B.) Several 

C.) both A and B 

D.) Either of them, depending upon the facts of the cases 

90.) In torts, in case of defamation 

1. A) Intention to defame is not necessary 

B.) Intention to defame is necessary 

C.) both A and B 

D.) either 1 or 2 

91.) The father of which leader has been the Deputy Prime Minister of India 

A.) Kumari Mayawati 

B.) Mrs Mira Kumar 

C.) Mrs Pratibha Devi Singh Patil 

D.) Mrs Vasundhara Raje 

92.) Who was the constitutional advisor of the Constituent Assembly of India 

A.) Dr.Rajendra Prasad 

B.) Dr.B.R Ambedkar 

C.) B.N Rao 

D.) Jawaharlal Nehru 

93.) The concept of Judicial Review is based on 

A.) Procedure established by the law 

B.) Due process of law 

C.) Rule of law 

D.) International treaties and conventions 

94.) Protection of Environment is a 

A.) Constitutional duty 

B.) Directive principle 

C.) Fundamental Duty 

D.) Both B and C 

95.) The item education belongs to 

A.) Union list 

B.) State List 

C.) Concurrent list 

D.) Residuary power 

96.) While interpreting the term Equality before the Law, the SC constantly maintained that equality means 

A.) Absolute equality among human beings 

B.) Equal treatment to all persons 

C.) Among equals, the law should be equal and should be equally administratrator 

D.) Both B and C 

97.) The number of fundamental rights available in the constitution are 

A.) Six 

B.) Seven 

C.) Eight 

D.) Ten 

98.) Which of the following fundamental rights was described by Dr BR Ambedkar as the Heart and Soul of the constitution 

1. A) Right to Equality 

B.) Right to freedom of religion 

C.) Right to Constitutional Remedies 

D.) All the above 

99.) What is the period of appointment of the Comptroller and Auditor General of India 

A.) 6 years 

B.) Upto 65 years of age 

C.) 6 years or 65 years of age whichever is earlier 

D.) Upto 62 years of age 

100.) Which of the following writs is a bulwark of personal freedom 

A.) QuoWarranto 

B.) Mandamus 

C.) Heabeus corpus 

D.) Ceretori 

Answers 

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

To solve another mock test for AIBE preparation, please Click Here. 

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

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This article is written by Mariya Paliwala of the seventh semester, a student at Mohanlal Sukhadiya University College of Law, Udaipur, Rajasthan. This article throws light on the Constitution of India with special emphasis on Part I i.e. Union and its Territories. 

Introduction 

It is very difficult to govern a vast nation like India, so the mechanism of federal governance was adopted. The heading in Part I i.e. Union and its territory reflects the unitary biasness of the federal structure as a union is considered to be the center and it comprises of states which is termed as territory. The country is divided into various states just for the sake of smoothing the administration. The Part I of the constitution pertains to the union and its territories and it comprises of Article 1, 2, 3, and 4. 

Name and Territory of the Union

India is described as the “Union of states” and not “Federation of states”. The drafting committee of the Constituent Assembly deliberately used the word union and not federation. This can be interpreted as the union of India means the nation as a whole, it is not the result of any agreement between the states. Whereas, federation means the nation is constituted in accordance with the agreement and in future any state or group of states may secede from the union and demarcate the boundary on their own free will. 

The Chairman of the Drafting Committee of the constituent Assembly, Dr. B.R. Ambedkar stated the reason for the question that why the drafting committee wanted to make it clear that though India was to be a federation, that federation was not the result of agreement by the states to join federation and that the federation not being the result of agreement no state has the right to secede from it. The federation is a union because it is indestructible. Though the country and people can be divided into different states for the convenience of the administration the country is one integral whole, its people are the single people living under a single imperium whole from a single source. Just a change in word and the Americans had to wage civil war to establish that the states have no right to secession and that their Federation was indestructible. The drafting committee thought that it is better to make it clear in an initial stage rather than leave it for the speculation leading to future controversies and contingencies. 

Therefore, Article 1 says pertains to the above ideology whose essentials are:

• Union of States

Article 1 says that India will also be known as Bharat and it shall be the ‘Union’ of states. Moreover, it also states that the states and union territories are mentioned in the 1st Schedule of the constitution.

• Indian territory will comprise of:

1. The state territories.
2. Union territories.
3. Territories which may be acquired by the government of India.

To acquire any foreign territory no parliamentary legislation is required as the sovereign state has an inherent power to acquire any territory. 

Meaning of Acquisition

The expression ‘acquisition’ means by any notifications, declarations or assertions by which the government of India has declared and treated as a part and parcel of India, then the courts will be bound to recognize an “acquisition” as having taken place the consequence that territory would be the part of the union. Acquisition may be brought about in the following manners:

• Conquest
• Cession following treaty
• Occupation of territory hitherto unoccupied by any recognized ruler
• Accretion

The annexation of Sikkim, Daman & Diu, Goa, Dadar and Nagar Haveli, and Pondicherry are examples of acquisition. 

Further, Article 2-A which elaborated on Sikkim to be associated with the union. However, this article was repealed by the Constitution (36th Amendment) Act, 1975. 

Admission and Establishment of New States

Article 2 of the Constitution empowers the parliament to make new rules to admit any territory into the union or establish a new state on the basis of any terms as it thinks fit. 

The main highlights of Article 2 are:

1. To admit any new state in a Union (admission of organized political communities).
2. Power to make or establish new state (existence of no political communities).

Article 2-A state that Sikkim was to be associated with the Union of India which was later repealed by the Constitution 36th Amendment Act, 1975. 

Formation of New States, Alteration of New Areas, Boundaries or Names of Existing States

Parliament is empowered under Article 3 of the constitution to:

1. Either from a new state by separation of territory from any state or by merging two or more states or by uniting any territory to a part of any state.
2. Increase in the area of any state.
3. A decrease in the area of any state.
4. Alteration in the boundary of any state.
5. Alteration in the name of any state.

This can be done if no bill for the purpose is introduced in the parliament except on the recommendation of the President of India. 

A bill to become a law under Article 3 of the constitution need to fulfill 2 conditions. Firstly, the bill must be introduced in either house of the parliament only on the recommendation of the President of India. Secondly, where the proposal in the bill affect or change the area, boundaries, or name of any states, after this, the President must refer the bill to the legislature of the state which is going to be affected by the bill to express its will on matters pertaining to any alteration, formation or the name of that state.

Legislations under Article 3 

1. 1. Assam (Alteration of Boundaries) Act, 1951: This altered the boundaries of the state of Assam consequent on the cession of a strip of territory, which was comprised in the state of the Government of Bhutan.
   2. Andhra State Act, 1953: Under this new state of Andhra Pradesh was formed by separating it from the State of Madras.

• Himachal Pradesh and Bilaspur (New State) Act, 1954: This Act merged the two former parts of the States to form one state of Himachal Pradesh.

• Bihar and West Bengal (Transfer of Territories) Act, 1956: Under this Act certain territory was transferred from Bihar to West Bengal.
• States Reorganisation Act, 1956: This Act recognizes the boundaries of the different states. It establishes the new state of Kerala and merged the former states of Madhya Bharat, Pepsu, Saurashtra, Travancore-Cochin, Ajmer, Bhopal, Coorg, Kutch, and Vindhya Pradesh in other adjoining states.

1. 1. Andhra Pradesh and Madras (Alteration of Boundaries) Act, 1959: This Act altered the boundary of the states of Madras and Andhra Pradesh.
   2. Rajasthan and Madhya Pradesh (Transfer of Territories) Act, 1959: This Act allowed the transfer of certain territories from the state of Rajasthan to the State of Madhya Pradesh.
   3. Bombay Recognition Act, 1960: This Act divided the state of Bombay in order to establish the state of Gujarat and the state of Maharashtra. 
   4. Acquired Territory (Merger) Act, 1960: This Act merged certain territories into the state of Assam, Punjab, and West Bengal, certain territories acquired from Pakistan under the agreement entered into by the government of India and Pakistan.

• State of Nagaland Act, 1962
• Punjab Reorganisation Act, 1966
• State of Himachal Pradesh Act, 1970
• North-Eastern Areas (Recognition) Act, 1971
• Haryana and Uttar Pradesh (Alteration of Boundaries Act), 1979
• State of Mizoram Act, 1986
• State of Arunachal Pradesh Act, 1986
• Goa, Daman, and Diu Reorganisation Act, 1987
• Bihar reorganization Act, 2000
• Uttar Pradesh Reorganisation Act, 2000
• Madhya Pradesh Reorganisation Act, 2000
• Andhra Pradesh Reorganisation Act, 2014

Ram Kishore Sen V. Union of India, AIR 1966 SC 644, 648: (1966) 1 SCR 430

This case has clarified the term ‘State’. The word State is inclusive of Union territories this can be derived from the Explanation 1 of Article 3. However, since there is no such necessity with regards to the proviso to Article 3, it is also provided that the term ‘state’ shall not include a word Union Territory. 

Rationale: The reason is that in the case of alteration of boundaries of the state, it is very important to take the opinion of the affected state. However, the union territories are governed by the Parliament itself. Further, the inclusion of the word “Union Territories” in the term “state” occurring in the proviso would have been redundant. Explanation 2 further clarifies that the parliament has the power under clause (a) of Article 3 to form new states or union territory by uniting a part of any state or union territory to any other state or union territory. 

Therefore, these two explanations are added to Article 3 with the help of the Constitution (18th Amendment) Act, 1966. 

Laws made under Article 2 and 3 provides for amendment under First and the Fourth Schedules and supplemental, Incidental, and consequential matters.

In case parliament of India makes a law under Article 2 or 3, the law must include all the necessary provisions for amendment of the first and fourth schedules of the constitution. 

• The first schedule: It specifies all the states which are a member of the Union and their representative territories. 
• The fourth schedule: It specifies the number of seats to which each state is entitled in the council of states.

Further Article 4 enables the parliament to include supplementary, incidental and consequential provisions. 

Clause 2 of Article 4 expressly provides that changes made in the constitution by such law will be deemed to be an amendment of the constitution under Article 368, which specifies the procedure to make amendments in the constitution. The consequence is that alteration in the constitution coming within the purview of Article 4 may be carried out by a bare majority, subject to the requirements laid down by the proviso to Article 3 if such alterations relate to the matters specified in that article. 

Mullaperiyar Environment Protection Forum V. Union of India, (2006) 3 SCC 643: AIR 2006 SC 1428

In this case the validity of Section 108 of State Reorganisation Act, 1956 which provides for the continuity of the existing agreements between the then existing states. The court held that the law-making power under Article 3 and 4 are supreme/ paramount and are not subjected to nor fettered by Article 246 and the List II and III of the seventh schedule. Further, it held that the constitutional validity of law made under Article 3 and 4 can not be questioned on the grounds of lack of legislative competence with reference to the list of the Seventh Schedule. 

Ram Kishore Sen v. Union of India, AIR 1966 SC 644, 648: (1966) 1 SCR 430

The Constitutional (18th Amendment) Act, 1966 adds two explanations to Article 3, incorporating the decision of the Supreme Court in this case which clarified the term “State” in the term “State” includes “Union Territories” but since there is no such necessity with regard to the proviso to Article 3, it is also provided that in the proviso, the term “state” shall not include “union territories”. The reason is that in the case of alteration of boundaries of the state, it is necessary to elicit the opinion of the affected states; but since the Union Territory is governed by Parliament itself, the inclusion of Union Territory in the term “State” occurring in the proviso would have been redundant. The second explanation further clarifies the power of the Parliament. It provides that the power of the Parliament under clause (a) of Article 3 includes the power to form a new state or Union Territory by uniting a part of any state or union territory to any other state or Union Territory. 

Conclusion

Wherefore, it can be said that the Constitution is the paramount law of the land. The Parliament is a body empowered to make laws for the welfare state but while making them the members of the Parliament need to ensure that the law which is presented and enacted must not be in derogation with the constitution and above all it does not have to be in violation with the basic structure of the constitution of India. 

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

The post Laws Governing Union and its territories under the Indian Constitution appeared first on iPleaders.

This article is written by Pearl Narang, a student at Chandigarh University, Mohali. In this article, she has discussed and covered various important aspects of the Memorandum Of Association.

Introduction

A company is formed when a number of people come together for achieving a specific purpose. This purpose is usually commercial in nature. Companies are generally formed to earn profit from business activities. To incorporate a company, an application has to be filed with the Registrar of Companies (ROC). This application is required to be submitted with a number of documents. One of the fundamental documents that are required to be submitted with the application for incorporation is the Memorandum of Association.

Definition of Memorandum of Association

Section 2(56) of the Companies Act, 2013 defines Memorandum of Association. It states that a “memorandum” means two things:

• Memorandum of Association as originally framed;

Memorandum as originally framed refers to the memorandum as it was during the incorporation of the company. 

• Memorandum as altered from time to time;

This means that all the alterations that are made in the memorandum from time to time will also be a part of Memorandum of Association. 

The section also states that the alterations must be made in pursuance of any previous company law or the present Act. 

In addition to this, according to Section 399 of the Companies Act, 2013, any person can inspect any document filed with the Registrar in pursuance of the provisions of the Act. Hence, any person who wants to deal with the company can know about the company through the Memorandum of Association.

Meaning of Memorandum of Association

Memorandum of Association is a legal document which describes the purpose for which the company is formed. It defines the powers of the company and the conditions under which it operates. It is a document that contains all the rules and regulations that govern a company’s relations with the outside world. 

It is mandatory for every company to have a Memorandum of Association which defines the scope of its operations. Once prepared, the company cannot operate beyond the scope of the document. If the company goes beyond the scope, then the action will be considered ultra vires and hence will be void. 

It is a foundation on which the company is made. The entire structure of the company is detailed in the Memorandum of Association. 

The memorandum is a public document. Thus, if a person wants to enter into any contracts with the company, all he has to do is pay the required fees to the Registrar of Companies and obtain the Memorandum of Association. Through the Memorandum of Association he will get all the details of the company. It is the duty of the person who indulges in any transactions with the company to know about its memorandum. 

Object of registering a Memorandum of Association or MOA

Memorandum of Association is an essential document that contains all the details of the company. It governs the relationship between the company and its stakeholders. Section 3 of the Companies Act, 2013 describes the importance of memorandum by stating that, for registering a company, 

1. In case of a public company, seven or more people are required;
2. In case of a private company, two or more people are required;
3. In case of a one person company, only one person is required.

In all the above cases, the concerned people should first subscribe to a memorandum before registering the company with Registrar. 

Thus, Memorandum of Association is essential for registration of a company. Section 7(1)(a) of the Act states that for incorporation of a company, Memorandum of Association and Articles of Association of the company should be duly signed by the subscribers and filed with the Registrar. In addition to this, a memorandum has other objects as well. These are,

1. It allows the shareholders to know about the company before buying it shares. This helps the shareholders determine how much capital will they invest in the company. 
2. It provides information to all the stakeholders who are willing to associate with the company in any way. 

Format of Memorandum of Association

Section 4(5) of the Companies Act states that a memorandum should be in any form as given in Tables A, B, C, D, and E of Schedule 1. The Tables are of different kinds because of different kinds of companies. 

Table A – It is applicable to a company limited by shares.

Table B – It is applicable to a company limited by guarantee and not having a share capital.

Table C – It is applicable to a company limited by guarantee and having a share capital.

Table D – It is applicable to an unlimited company not having a share capital.

Table E – It is applicable to an unlimited company having a share capital. 

The memorandum should be printed, numbered and divided into paragraphs. It should also be signed by the subscribers of the company.

Sample of Memorandum of a Company Limited by Shares

XYZ Private Limited, a company, situated in Punjab, is engaged in the business of manufacturing security devices. It wants to register with the Registrar of Companies. For registration, the company has to first subscribe to a memorandum. 

The Memorandum of Association of XYZ Private Limited will look like this: 

(Since XYZ Private Limited is a company limited by shares, the form given in Table A will be applicable to it.)

The Companies Act, 2013

Company Limited by Shares

Memorandum of Association

Of

XYZ Private Limited 

1. The name of the company is XYZ Private Limited. (Name Clause)
2. The registered office of the company will be situated in the state of Punjab. (Registered Office Clause)

3. The object for which the company is established are (Object Clause):
(a) The objects to be pursued by the company on its incorporation are:

1. To carry on business of manufacturing, converting, altering, designing, producing security systems. 
2. To trade, buy, sell or act as agents to import or export all security related devices.
3. To carry on the business and act as buyers, sellers, traders, agents and dealers for obtaining the above objects. 

(b) Matters which are necessary for the furtherance of the objects specified in clause 3A are:

1.  To manufacture and deal in packaging materials, boxes, grading, branding, weighting, and marketing for all kinds of security devices and other electronic components associated with it. 
2. To draw, make, accept, endorse, discount, execute, issue, negotiate, assign and otherwise deal with cheques, drafts, bills of exchange, promissory notes, hundies, debentures, bonds, bills of lading, railway receipts, warrants and all other negotiable or transferable instruments. 
3.  To amalgamate with any other company or companies.
4. To acquire or merge with any other company.
5. To start a joint venture with any other company.
6. To distribute any of the property of the Company amongst the members in specie or kind subject to the provisions of the Companies Act in the event of winding up. 
7.  To apply for, tender, purchase, or otherwise acquire any contracts, subcontracts licences and concessions for or in relation to the objects or business herein mentioned or any of them, and to undertake, execute, carry out, dispose of or otherwise turn to account the same.

• The liability of the member(s) is limited and this liability is limited to the amount unpaid, if any, on the shares held by them. (Liability Clause)

• The share capital of the company is 70,00,000 rupees, divided into 2000 shares of 3500 rupees each. (Capital Clause)
• We, the several persons, whose names and addresses are subscribed, are desirous of being formed into a company in pursuance of this memorandum of association, and we respectively agree to take the number of shares in the capital of the company set against our respective names:

________________

Total shares taken: 1400 

7. I, whose name and address are given below, am desirous of forming a company in pursuance of this memorandum of association and agree to take all the shares in the capital of the company (Applicable in case of one person company):

8. Shri/Smt_____________, son/daughter of ____________, resident of_____________ aged____________ years shall be the nominee in the event of death of the sole member (Applicable in case of one person company)

Dated____________ the day of________________

Content of Memorandum of Association

Section 4 of the Companies Act, 2013 states the contents of the memorandum. It details all the essential information that the memorandum should contain. 

Name Clause

The first clause states the name of the company. Any name can be chosen for the company. But there are certain conditions that need to be complied with. 

Section 4(1)(a) states: 

1. If a company is a public company, then the word ‘Limited’ should be there in the name. Example, “Robotics”, a public company, its registered name will be “Robotics Limited”.
2. If a company is a private company, then ‘Private Limited’ should be there in the name. “Secure”a private company, its registered name will be “Secure Private Limited”.
3. This condition is not applicable to Section 8 companies.

What are Section 8 companies? 

Section 8 Company is named after Section 8 of the Companies Act,2013. It describes companies which are established to promote commerce, art, sports, education, research, social welfare, religion etc. Section 8 companies are similar to Trust and Societies but they have a better recognition and legal standing than Trust and Societies. 

What kind of names are not allowed? 

The name stated in the memorandum shall not be, 

1. Identical to the name of another company;
2. Too nearly resembling the name of an existing company. 

According to Rule 8 of the Company (Incorporation) Rules,2014.

• If a company adds ‘Limited’, ‘Private Limited’, ‘LLP’, ‘Company’, ‘Corporation’, ‘Corp’, ‘inc’ and any other kind of designation to its name to differentiate it from the name of the other company, the name would still not be accepted. 

Illustration:Precious Technology Limited is same as Precious Technology Company. 

• If plural or singular forms are added to differentiate between names.
  Illustrations: Greentech Solution is same as GreenTech Solutions.

Colors Technology is same as Color Technology. 

• If type, and case of letters, or punctuation marks are added. 

Illustration: Wework is same as We.work. 

• Different tenses are used in names.

Illustration: Ascend Solution is same as Ascended Solutions. 

• If there is an intentional spelling mistake in the name or phonetic changes in the name.

Illustrations: Greentech is same as Greentek. 

DQ is same as DeeQew. 

• Internet related designations are used like .org, .com, etc.

Illustration: Greentech Solution Ltd. is same as Greentech Solutions.com Ltd.

Exception: The name will not be disregarded if the existing company by a board of resolution allows it. 

• Change in order of combination of words. 

Illustration: Shah Builders and Contractors is same as Shah Contractors and Builders. 

Exception: The name will not be disregarded if the existing company by a board of resolution allows it. 

• Addition of a definite or indefinite article. 

Illustration: Greentech Solutions Ltd is same as The Greentech Solutions Ltd.

Exception: The name will not be disregarded if the existing company by a board of resolution allows it. 

• Slight variation in spelling of two names, including a grammatical variation. 

Illustration: Colours TV Channel is same as Colors TV Channel. 

• Translation of a name, from one language to another. 

Illustration: Om Electricity Corporation is same as Om Vidyut Nigam. 

• Addition of the name of a place to the name. 

Illustration: Greentech Solutions Ltd. Is same as Greentech Mumbai Solutions Ltd. 

Exception: The name will not be disregarded if the existing company by a board of resolution allows it. 

• Addition, deletion or modification of numericals in the name. 

Illustration: Greentech Solutions Ltd. Is same as 5 Greentech Solutions Ltd.

Exception: The name will not be disregarded if the existing company by a board of resolution allows it. 

In addition to this, an undesirable name will also not be allowed to be chosen. 

Undesirable names are those names which in the opinion of the Central Government are:

1. Prohibited under the Provisions of Section 3 of Emblems and Names (Prevention and Improper Use) Act, 1950.
2. Names which resemble each other, which are chosen to deceive. 
3. The name includes a registered trademark. 
4. The name includes any word or words which are offensive to a section of people. 
5. Name which is identical to or too nearly resembles the name of an existing Limited Liability Partnership. 

Furthermore, statutory names such as the UN, Red Cross, World Bank, Amnesty International etc. are also not allowed to be chosen. 

Names which in any way indicate that the company is working for the government are also not allowed. 

Reservation of a Name

Section 4(5)(i) of the Act states that for formation of the Company, the Registrar on receiving the required documents can reserve a name for 20 days. If the application is made by an existing company, then once the application is accepted, the name will be reserved for 60 days from the date of application. The company should get incorporated with the reserved name in these 60 days. 

If after making the reservation of a name, it is found that some wrong information is given. Then two cases arise. 

1. In case the company has not been incorporated. In this case, the Registrar can cancel the reservation of the name and impose a fine of Rupees 1,00,000.
2. In case the company has been incorporated. In this case, after hearing the reasons of the company, the Registrar has 3 options. These are,

• On being satisfied, he can give 3 months time to the company to change the name by passing an ordinary resolution. 
• He can strike off the name from the Register of Companies. 
• He can file a petition of winding up of the company. 

Rule 8 and 9 of the Company (Incorporation) Rules, 2014 state that the application for reservation of name under section 4(4) should be filed on Form INC – 1.

Registered Office Clause

The Registered Office of a company determines its nationality and jurisdiction of courts. It is a place of residence and is used for the purpose of all communications with the company. 

Section 12 of the Companies Act, 2013 talks about Registered Office of the company. 

Before incorporation of the company, it is sufficient to mention only the name of the state where the company is located. But after incorporation, the company has to specify the exact location of the registered office. The company has to then get the location verified as well, within 30 days of incorporation. 

It is mandatory for every company to fix its name and address of its registered office on the outside of every office in which the business of the company takes place. If the company is a one-person company, then “One-person Company” should be written in brackets below the affixed name of the company. 

Change in place of Registered Office should be notified to the Registrar within the prescribed time period. 

Object Clause

Section 4(c) of the Act, details the object clause.The Object Clause is the most important clause of Memorandum of Association. It states the purpose for which the company is formed. The object clause contains both, the main objects and matters which are necessary for achieving the stated objects also known as incidental or ancillary objects. The stated objects must be well defined and lawful according to Section 6(b) of the Companies Act, 2013. 

By limiting the scope of powers of the company. The object clause provides protection to:

Shareholders – The object clause clearly states what operations will the company perform. This helps the shareholders know their investment in the company will be used for what purpose. 

Creditors – It ensures the creditors that capital is not at risk and the company is working within the limits as stated in the clause. 

Public Interest – The object clause limits the number of matters the company can deal with thus, prohibiting diversification of activities of the company. 

Doctrine of Ultra Vires

If the company operates beyond the scope of the powers stated in the object clause, then the action of the company will be ultra vires and thus void. 

Consequences of Ultra Vires

1. Liability of Directors: The directors of the company have a duty to ensure that company’s capital is used for the right purpose only. If the capital is diverted for another purpose not stated in the memorandum, then the directors will be held personally liable. 
2. Ultra Vires Borrowing by the Company: If a bank lends to the company for the purpose not stated in the object clause, then the borrowing would be Ultra Vires and the bank will not be able to recover the amount. 
3. Ultra Vires Lending by the Company: If the company lends money for an ultra vires purpose, then the lending would be ultra vires. 
4. Void ab initio – Ultra Vires acts of the company are considered void from the beginning. 
5. Injunction – Any member of the company can use the remedy of injunction to prevent the company from doing ultra vires acts. 

Liability Clause

The Liability Clause provides legal protection to the shareholders by protecting them from being held personally liable for the loss of the company. 

There are two kinds of limited liabilities: 

Limited By Shares – Section 2(22) of the Companies Act, 2013 defines a company limited by shares. In a company limited by shares, the shareholders only have to pay the price of the shares they have subscribed to. If for some reason they have not paid the full amount for the shares and the company winds up then their liability will only be limited to the unpaid amount. 

Limited By Guarantee – It is defined in Section 2(21) of the Companies Act, 2013.A company limited by guarantee has members instead of shareholders. These members undertake to contribute to the assets of the company at the time of winding up. The members give guarantee of a fixed amount that they will be liable for. 

Non-profit Organizations and other charities usually have a structure of companies limited by guarantee. 

Capital Clause

It states the total amount of share capital in the company and how it is divided into shares. The way the amount of capital is divided into what kind of shares. The shares can be equity shares or preference shares. 

Illustration: The share capital of the company is 80,00,000 rupees, divided into 3000 shares of 4000 rupees each.

Subscription Clause

The Subscription Clause states who are signing the memorandum. Each subscriber must state the number of shares he is subscribing to. The subscribers have to sign the memorandum in the presence of two witnesses. Each subscriber must subscribe to at least one share. 

Association Clause

In this clause, the subscribers to the memorandum make a declaration that they want to associate themselves to the company and form an association. 

Memorandum of Association for One-Person-Company

A one-person company is called so because it can be formed by one person. The minimum capital required to form a one-person company is 1,00,000 Rupees. 

It is a new concept which has been introduced to promote entrepreneurship. All the laws which are applicable on private companies will be applicable on one-person company. 

Section 2(62) of the Companies Act, 2013 defines one-person company. 

A one-person company is a separate legal entity from its owner. It is mandatory for the company to be converted into a private limited company in case its annual turnover crosses the 2 Crore mark. 

In case of one-person-company, in addition to all the other clauses, the Memorandum of Association contains a clause called the Nomination Clause. This clause mentions the name of an individual who will become the member in case the subscriber dies or becomes incapacitated. The nominee must be an Indian citizen and resident of India i. e. he must have been living in India for at least 182 days in the preceding year. A minor cannot be a nominee. 

The individual whose name is mentioned should give his consent in written form and it is required to be filed with the Registrar of Companies at the time of incorporation. 

If the nominee wants to withdraw, he shall give it in writing and the owner of the company will have to nominate a new person within 15 days. 

What’s the use of Memorandum of Association?

1. It defines the scope & powers of a company, beyond which the company cannot operate. 
2. It regulates company’s relation with the outside world. 
3. It is used in the registration process, without it the company cannot be incorporated. 
4. It helps anyone who wants to enter into a contractual relationship with the company to gain knowledge about the company. 
5. It is also called the charter of the Company, as it contains all the details of the company, its members and their liabilities. 

Subscription of Memorandum of Association

Subscribers are the first shareholders of the company. They are the people who agreed to come together and form the company. The name of each subscriber along with their particulars are mentioned in the memorandum. 

Different kinds of companies require different number of subscribers for incorporation. 

1. Private Company: In case of a private company, the minimum number of subscribers required are 2.
2. Public Company: In case of a public company, 7 or more subscribers are required. 
3. One-Person-Company: In case of one-person-company, only one person is required. 

Who can Subscribe?

Rule 13 of the Companies (Incorporation) Rules, 2014 describes the provisions of subscribing to the memorandum. 

There are specific kinds of persons (natural or artificial) who can subscribe to the memorandum. These are:

1. Individuals – An individual or a group of individuals can subscribe to the memorandum. 
2. Foreign citizens and Non Resident Indians – Rule 13(5) of the Companies (Incorporation) Rules, states that for a foreign citizen to subscribe to a company in India, his signature, address and proof of identity will need to be notarized. 

The foreign national must have visited India and should have a Business Visa.

For a Non Resident Indian, the photograph, address and identity proof should be attested at the Embassy with a certified copy of a passport. There is no requirement of Business Visa. 

1. Minor – A minor can only be a subscriber through his guardian. 
2. Company incorporated under the Companies Act – The company can be a subscriber to the memorandum. The Director, officer or employee of the company or any other person authorized by the board of resolution. 
3. Company incorporated outside India – Foreign Company is defined in Section 2(42) of the act, it states that a foreign company is a company incorporated outside India. A company registered outside India can also subscribe to the memorandum by fulfilling the additional formalities. 
4. Society registered under the Societies Registration Act, 1860. 
5. Limited Liability Partnership – A partner of a limited liability partnership can sign the memorandum with the agreement of all the other partners. 
6. Body corporate incorporated under an Act of Parliament or State Legislature can also be a subscriber to the memorandum. 

Subscription to Memorandum of Association

Every subscriber should sign the memorandum in presence of at least one witness. The following particulars of the witness should also be mentioned. 

1. Name of the witness
2. Address 
3. Description 
4. Occupation 

If the signature is in any other language then, then an affidavit is required that declares that the signature is the actual signature of the person. 

According to Circular No. 8/15/8, dated 1-9-1958. The subscriber can also authorize another person to affix the signature by granting a power of attorney to the person. Department Circular No. 1/95, dated 16th February 1995 states that only one power of attorney is required. 

The person who is granted the power of attorney may be known as an agent. 

He should also state the following particulars in the memorandum:

1. Name of the agent
2. Address
3. Description 
4. Occupation 

Particulars to be Mentioned in Memorandum of Association

Rule 16 of the Companies (Incorporation) Rules, 2014 details the particulars that are to be mentioned in the memorandum. 

Every Subscriber’s following details should be mentioned. 

1. Name (includes last name and family name), a photograph should be affixed and scanned with the memorandum.
2. Father’s Name and Mother’s Name
3. Nationality 
4. Date of Birth 
5. Place of Birth
6. Qualifications 
7. Occupation 
8. Permanent Account Number
9. Permanent and Current Address
10. Contact Number
11. Fax Number (Optional) 
12. 2 Identity Proofs in which Permanent Account Number is mandatory.
13. Residential Proof (not older than 2 months) 
14. Proof of nationality, if subscriber is a foreign national 
15. If the subscriber is a current director or promoter, then his designation along with Name and Company Identity Number

If a body corporate is subscribing to the memorandum then the following particulars should be mentioned. 

1. Corporate identity number of the company or registration number of the body corporate.
2. Global location number, which is used to identify the location of the legal entity. (Optional)
3. The name of the body corporate.
4. The registered address of the business.
5. Email address.

In case the body corporate is a company, then a certified copy of Board resolution which authorizes the subscription to the memorandum. The particulars required in this case are, 

1. Number of shares to be subscribed by a body corporate. 
2. Name, designation and address of the authorized person.

In case the body corporate is a limited liability partnership. The particulars required are, 

1. A certified copy of the resolution. 
2. The number of shares that the firm is subscribing to. 
3. The name of the authorized partner. 

In case the body corporate is registered outside the country. The particulars required are, 

1. The copy of certificate of incorporation.
2. The address of the registered office.

Printing and Signing of Memorandum of Association

Section 7(1)(a) states that the memorandum should be duly signed by all the subscribers and should be in a manner prescribed by the Act. 

Rule 13 of the Company (Incorporation) Rules, 2014 describes the manner in which the memorandum should be signed. 

1. The Memorandum of Association should be signed by each subscriber to the memorandum. The subscriber shall mention his name, address, occupation and the number of shares he is subscribing to. The documents should be signed in the presence of at least one witness. The witness would also mention his name, address, and occupation. By signing the memorandum, the witness states that, “I witness to subscriber/subscriber(s)who has/have subscribed and signed in my presence (date and place to be given); further I have verified his or their Identity Details (ID) for their identification and satisfied myself of his/her/their identification particulars as filled in.”
2. If the person subscribing to the document is illiterate, he can either authorize an agent to sign the document through Power of Attorney or he can put his thumb impression on the column for signatures. The person’s name, address, occupation and the number of shares he is subscribing to should be written by a person who has been allowed to write for him. The person who is writing for the illiterate person should read and explain the contents of the document to an illiterate person. 
3. Where the person subscribing to the memorandum is an artificial person i. e. a body corporate the memorandum shall be signed by the employee, officer or any person authorized by the Board of Resolution. 
4. Where the person subscribing to the memorandum is a foreign national who does not reside in India but in a country, 

• in any part of the Commonwealth, his signatures and address on the memorandum and proof of identity shall be notarized by a Notary (Public) in that part of the Commonwealth.
• in a country which is a signatory to the Hague Apostille Convention, 1961, his signature and proof of identity and address on the memorandum shall be notarized before the Notary (Public) of the country of his origin and be duly approved in accordance with the said Hague Convention.
• in a country outside the Commonwealth and which is not a party to the Hague Apostille Convention, 1961, his signatures and address on the memorandum and proof of identity, shall be notarized before the Notary (Public) of such country and the certificate of the Notary (Public) shall be authenticated by a Diplomatic or Consular Officer empowered in this behalf under section 3 of the Diplomatic and Consular Officers (Oaths and Fees) Act, 1948 (40 of 1948).

Section 3 of the Diplomatic and Consular Officers states that, every Diplomat or any officer in a foreign country can perform the functions of a notary public. 

1. Where there is no Diplomatic or Consular officer by any of the officials mentioned in section 6 of the Commissioners of Oaths Act, 1889.
2. If the foreign national visited India and intended to incorporate a company, in such a case the incorporation shall be allowed if, he is having a valid Business Visa. 

Section 15 of the Companies Act, 2013 states that the memorandum should be in printed form. 

The Ministry of Corporate Affairs has clarified that a document printed in form laser printers will be considered valid provided it is legible and fulfills other requirements as well. 

The submission of xerox copies is not allowed. The xerox copies can be submitted to the members of the company. 

Alteration, Amendment & Change in Memorandum of Association under Companies Act, 2013.

The term “alter” or “alteration” is defined in Section 2(3) of the Act, as any additions, omissions or substitutions. A company can alter the memorandum only to the extent as permitted by the Act. According to Section 13, the company can alter the clauses in the memorandum by passing a special resolution.

A resolution is a formal decision taken in a meeting. There are two kinds of resolutions, ordinary and special. A special resolution is one which requires at least 2/3rd majority to be effective. The alteration to the clauses also require the approval of the Central Government in writing. 

The alteration of memorandum can happen for a variety of reasons.The alteration can made if, 

1. Enables the company to carry its business more effectively;
2. Helps to achieve the objectives;
3. Helps the company to amalgamate with another company;
4. Helps the company dispose off any undertaking.  

Alteration of Memorandum 

The alteration of various clauses of the memorandum have different procedures:

1. Alteration to the Name Clause: To alter the name of the company, a special resolution is required. After the resolution is passed, the copy is sent to the registrar. For changing the name, the application needs to be filed in Form INC- 24 with the prescribed fees. After the name is changed, a new certificate of incorporation is issued. 
2. Alteration to the Registered Office Clause: The application for changing the place for Registered Office of the company shall be filed with the Central Government in Form INC- 23 with the prescribed fees.

If the company is changing its Registered Office from one to another, then the approval of the Central Government is required. The Central Government is required to dispose off the matter within 60 days and should ensure that the change of place has the consent of all the stakeholders of the company. 

• Alteration to the Object Clause: To alter the object clause, a special resolution is required to be passed. The changes must be confirmed by the authority. The document which confirms the changes by authority with a printed copy of the altered memorandum should be filed with the Registrar. 

If the company is a public company, then the alteration should be published in the newspaper where the Registered Office of the company is located. The changes to the object clause must also mentioned on the company’s website. 

• Alteration to the Liability Clause: The Liability clause of the memorandum cannot be altered except with the written consent of all the members of the company. By altering the liability clause, the liability of the directors of the company can be made unlimited. In any case, the liability of the shareholders cannot be made unlimited. Changes in the liability clause can be made by passing a special a special resolution and sending a copy of the resolution to the Registrar of Companies. 

Alteration to the Capital Clause: The capital clause of a company can be altered by an ordinary resolution. 

The company can, 

1. Increase its authorised share capital;
2. Convert the shares into stock;
3. Consolidate and divide all of its shares;
4. Cancel the shares which have not been subscribed to;
5. Diminish the share capital of the shares cancelled. 

The altered Memorandum of Association should be submitted to the Registrar within 30 days of passing the resolution. 

Difference between Memorandum of Association and Articles of Association

While Memorandum of Association is a document that governs a company’s relationship with the outside world. The Articles of association governs a company’s internal affairs and management. The directors and all other officers of the company should perform the functions in accordance with the Articles of Association. The Articles of Association are subordinate to the memorandum. Thus, while framing the Articles of Association it is very important to keep in mind that the Articles do not, in any way contradict or exceed the scope of the memorandum. 

The Articles of Association form a contract, 

1. Between members of the company;
2. Between the company and its members. 

The Articles of Association are important for a company because, 

1. They bind the company with its members. 
2. They bind the members with each other. 
3. They are not concerned with the outside world, they only deal with the internal affairs of the company which are essential for the smooth functioning of the business. 

Content of the Articles of Association

There is no specific clause that the Articles should contain, they can be drafted as per the requirements of the company.The Articles may contain the following: 

1. Rights of shareholders.
2. Liabilities, duties and powers of the directors. 
3. Accounts and audits.
4. Minutes of meetings.
5. Rules regarding use of common seal.
6. Procedure for winding up of the company. 
7. Borrowing powers of the company. 
8. Procedure for transfer of shares.
9. Procedure for alteration of the share capital of the company. 
10. Manner in which notices are given for General Meetings. 
11. Minimum attendance for a General Meeting. 
12. State the agenda of Annual General Meetings. 
13. Procedure for maintaining the financial records of the company. 
14. Determine the Accounting period. 
15. Determine the procedure for passing a resolution. 

Both Memorandum of Association and Articles of Association are essential documents which describe the procedure for companies to deal with the outside world and manage its internal affairs. 

Conclusion 

Thus, Memorandum of Association is a fundamental document for the formation of a company. It is a charter of the company. Without memorandum, a company cannot be incorporated. The memorandum together with Articles of Association form the constitution of the company.

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

The post Memorandum of Association : Know everything about it appeared first on iPleaders.

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

The football coach with fangs

This was back in the year 1999. I was a 13-year-old student in the 7th grade when it happened. I used to play right wing in my class football team, in a school called Jagacha High School in Howrah, where I grew up. It was a semifinal in the inter-class football tournament. 

We were at 1-1, but we were playing a team much stronger than ours. We were barely holding on, trying to fight back the repeated waves of attacks from every angle, every side.

Towards the end of the match came a point when on an instinct I ran up the right flank and got a nice pass, alone, just outside the box. As I was running fast, I couldn’t control the ball well and took a shot outside the goal. A golden opportunity wasted. 

Our class teacher was standing right there. He started screaming at me. Never play football in your life again, he said. You are completely worthless. Stay at home.

I understand his passion for the game today, but back then, his behaviour destroyed me. Our team won in a penalty shoot-out, but I could not even show up for the final. I fell sick. 

You know we can fall genuinely, verifiably, medically sick whenever we want, right?

I never played right-wing or forward positions again. I played football later and played quite well, but the fear of missing another goal made me play in the defence always after that. I didn’t give up playing football though and eventually got quite good at it. I scored many goals even from the defence in school (a different one) and later while representing the university. 

This was a teacher who never coached me about anything, though he was the official football coach of our school. He never said a good word to me, or tell me how I could become a better player. He never said anything good about how we fought back against a much stronger team. However, when I made one mistake, he was right there to bare his fangs at me.

I was too young to realize back then, but these are the exact kind of people we do not want in our corners, but we end up with them often enough. I was not a bad student or a terrible footballer, this was a teacher who didn’t know the first thing about teaching or coaching.