Find out the hack sheets and an exhaustive quiz of various statutes of Labour Law viz. Employees State Insurance Act, ID Act, Minimum Wages Act & Trade Union Act.

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Labour Law quiz 

1.) Can a Judge of High Court be appointed as a presiding officer of Labour Court? 

A.) Yes, he can be 

B.) Chief Justice of High Court can appoint a Judge 

C.) Central Government power to appoint him 

D.) No, A judge cannot be appointed as a presiding officer. 

2.) What is the composition of a National Tribunal? 

A.) Three members appointed by the Central Government 

B.) Three members appointed by the Supreme Court of India 

C.) Single member appointed by the Central Government 

D.) Three member appointed by the State Government 

3.) What is the period of notice that needs to be given to the employer for going on to strike? 

A.) 15 Days 

B.) 30 Days 

C.) 45 Day 

D.) 60 Days 

4.) When does a strike become illegal according to act? 

A.) When it is commenced before the notice period 

B.) When it is contravention of court order under sub section of Section 10 

C.) Both 1 and 2 

D.) None of the above 

5.) When is a workmen not entitled to compensation? 

A.) When he does not present himself to work at establishment during normal working hours at least once a day 

B.) When he accepts other alternative employment in the same establishment 

C.) If the work of the employer is more than satisfying 

D.) A workmen is always entitled to compensation 

6.) Can a person be jailed for committing unfair labour practices? 

A.) He can only be fined 

B.) He can be jailed for a period of 6 month 

C.) A person cannot be jailed 

D.) A person can be fined and also be imprisoned for a period of 6 month 

7.) “Average Pay” means? 

A.) In case of daily paid workman, twelve full working days 

B.) In case of monthly paid workman, in the three complete calendar 

C.) In case of weekly paid workman, in the four complete works weeks 

D.) All the above 

8.) Does the trade union act apply to state of Jammu and Kashmir? 

A.) No, the act doesn’t apply of J&K 

B.) The act applies to whole of India 

C.) J&K has its own legislation 

D.) J&K can adopt the Central Law 

9.) What is the minimum member required to apply for registration of Trade Union? 

A.) 5 members 

B.) 7 members 

C.) 9 members 

D.) 11 members 

10.) What is the status of Registered Trade Union? 

A.) An Unregistered company 

B.) Does not have a legal status 

C.) Body Corporate 

D.) Act is silent on it 

11.) Can trade union claim immunity from civil suits for tortuous liability? 

A.) Suit is maintainable under any circumstances 

B.) Suit is not maintainable since the act provides for immunity 

C.) Suit is not maintainable only when the tortious act is done in contemplation of a trade dispute which is beyond the knowledge of the agent of trade union 

D.) None of the above 

12.) Can an agreement between the members of a trade union, not to work under certain conditions, be in contravention of Section 27 of the Contract Act (since it imposes restraints on employment)? 

A.) Such agreements are void 

B.) Such agreements are voidable 

C.) Such agreements cannot be entered 

D.) Such agreement are valid 

13.) Can a 16 year old be member of a Trade Union? 

A.) Anyone above the age of 15 year can be a member of Trade Union 

B.) The minimum age is 18 years to be a member of Trade Union 

C.) There is no age prescribed to be a member of a Trade Union 

D.) The minimum age is 21 years to be a member of Trade Union 

14.) Who has the power to distribute funds of trade union in case of dissolution of the trade union? 

A.) The trade union itself 

B.) The state government 

C.) The registrar 

D.) The Labour court 

15.) Can a second class judicial magistrate take cognizance of matter under trade union act? 

A.) Yes, he can 

B.) Only a First class Judicial Magistrate can a take cognizance 

C.) Only a Labour Court can take cognizance 

D.) Any court can take Cognizance 

16.) What is the minimum requisite for being eligible for bonus? 

A.) He has worked for at least 20 days in an accounting year 

B.) He has worked for at least 45 days in an accounting year 

C.) He has worked for at least 60 days in an accounting year 

D.) He has worked for at least 30 days in an accounting year 

17.) Does bonus have to be paid in cash only? 

A.) Yes, the bonus has to be paid in cash 

B.) Bonus can be paid in kind 

C.) Establishment can issue a negotiable instrument 

D.) A Bonus can be paid in any manner 

18.) Does the Payment of Bonus Act apply to “Seamen”? 

A.) The Act applies to every class of employees 

B.) The Act applies to every industry 

C.) The Act does not apply to Seamen 

D.) None of the above 

19.) What is the time limit for a person to approach the government when his bonus is due? 

A.) 2 Year 

B.) 3 Months 

C.) 6 Months 

D.) 1 Year 

20.) Does “wages” in the Maternity Benefit Act include incentive bonus? 

A.) No, bonus is excluded from wages 

B.) Bonus is not part of wages 

C.) Incentive bonus comes within the scope of wages 

D.) None of the above 

21.) If a woman dies before the delivery of the child, is she still entitled to maternity benefits? 

A.) Yes, the person nominated by the woman will get the benefit 

B.) There will be no benefit after the woman dies 

C.) The benefit ceases to exist after the woman dies 

D.) All the above 

22.) Can a woman be dismissed from office during pregnancy while she has duly served notice to the employer? 

A.) Yes the employer has the power to dismiss such woman 

B.) The employer need not pay bonus to such woman 

C.) The employer has power to dismiss a woman while she is pregnant when notice is not served. 

D.) No, the employer’s act would be illegal if he dismisses such a woman 

23.) Does the Employees Provident Funds and Miscellaneous Provisions Act apply to state of Jammu and Kashmir? 

A.) Yes, it does 

B.) J& K can adopt such law from Centre 

C.) No, The act does not apply to J&K 

D.) J&K has its own act 

24.) A dispute regarding the applicability of the Employees’ Provident Funds and Miscellaneous Provisions Act, or the amounts due to an employee under the act is determined in the first instance by? 

A.) Central Provident Fund Commissioner or Additional Central Provident Fund Commissioner 

B.) Deputy Provident Fund Commissioner or any Regional Provident Fund Commissioner 

C.) Any Assistant Provident Fund Commissioner 

D.) Any of the above Employees’ Provident Fund Appellate Tribunal 

25.) Who has the power to form an “Executive Committee” under the Employees Provident Funds and Miscellaneous Provisions Act? 

A.) The Central Government 

B.) The State government 

C.) The High Court of the State 

D.) The Labour Court 

26.) Can an employee claim insurance under the employees’ state insurance act when the work is carried outside India? 

A.) No, the act has got no extra territorial applicability 

B.) Yes, the employee can claim insurance when he is injured in course of his employment 

C.) Yes, the employee can claim insurance even when he is not injured in course of his employment 

D.) None of the above 

27.) The power of Standing Committee as mentioned under Employees State Insurance Act does not include? 

A.) The Committee has the power to arrest a person 

B.) The committee has the power to administer the affairs of the corporation 

C.) The Committee has the power to submit cases to corporation 

D.) All the above 

28.) Who has the power to frame a scheme under the Employees State Insurance Act? 

A.) The State Government 

B.) The Board 

C.) The Standing Committee 

D.) The Central Government 

29.) Can a Company be liable under the Employees’ State Insurance Act? 

A.) No, only the director can be responsible for offence 

B.) No, the company is immune from prosecution 

C.) Yes, the Company can be held liable for the offence under the act 

D.) None of the above 

Answer Key

1.) D 2.) C 3.) A 4.) C 5.) A 6.) D 7.) D 8.) B 9.) B 10.) C 11.) C 12.) D 13.) A 14.) C 15.) B 16.) B 17.) A 18.) C 19.) D 20.) C 21.) A 22.) D 23.) C 24.) D 25.) A 26.) A 27.) A 28.) D 29.) C 

Employee State Insurance Act

Industrial Disputes Act

Minimum Wages Act

Trade Union Act

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

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This article is written by Vineet Kumar S, pursuing a Diploma in Entrepreneurship Administration and Business Laws from LawSikho.com. Here he discusses “Industrial Licensing Policy for Defence Sector in India”.

Historical Perspective

Historically, Indian defence industries can be divided into the pre-90 era and post-90 era. During the independence in 1947, the majority of the defence infrastructure and equipment in India was inherited from British colonial Ruler. India’s Journey had started since then to nurture and expand its defence industrial base mainly focused on capability development for supporting armed forces. The revised Industrial Policy Resolution of 1956 reserved the arms and ammunition industry with the public sector, which resulted in the establishment of DPSUs (Defence Public Sector Undertaking), OFB (Ordinance Factory Board) and DRDO (Defence Research and Development Organization). Conflict with China in 1962, war with Pakistan in 1965 & 1971, embargo by the United States of America and defence ties with the Soviet Union were major events took place in the history of Indian defence industry till 1980. India began a renewed effort to galvanize domestic defence industry in 1980 by investing largely into DRDO and development of indigenous missile systems & technologies. It can be said that the dominant economic development models adopted by government pre-90 era gave prominence to the public sector, keeping away the private sector from arms manufacturing. With limited available resources and technical know-how, a substantial portion of defence equipment was being imported and the system was to enter into Government to Government agreements. India’s requirement of indigenous production for advance equipment was met by licensed production and setting up of dedicated infrastructure to suit the production processes of the source country.  Although this strengthened the Indian public sector production base, yet technology transfer was limited in scope and did not extend to build and develop design capabilities.

The economic crisis of 1990-91 prompted India to liberalize the economy and opening of industries for private participation.  Post -90, the major evolution in Indian Defence started since 1992 by introducing Procedure for Defence Procurement Procedure, which later revised as ‘Defence Procurement Management Structures and Systems’ in 2001 post Kargil war based on the Group of Minister’s recommendation on reforming the National Security System. For the first time in 2001, Defence Sector was opened to 100% Indian private sector participation, with Foreign Direct Investment (FDI) up to 26%, both subject to licensing.  

Evolution of Industrial License for Defence

Manufacturing in the defense sector is regulated through industrial licensing under the Industries (Development and Regulation) Act, 1951 and Arms Act 1959 / Arm Rules 2016. Prior to 2001, manufacturing in the defense sector was limited to only public sector companies. Further, vide notification no.  SO 477 (E), Entry No. 13 of Schedule II of 25 July 191, list of compulsory licensing items was published by the Department of Defense Production, MoD. However, in 2001, the Government decided to allow 100% participation of the Indian private sector in defence manufacturing subject to licensing and amended the list vide Notification No. S.O.11(E) on 3 January 2002 with the change in segment related to  ‘arms and ammunition and allied items of defence equipment; parts and accessories thereof’. Since then, the number of clarifications has been issued in this regard for ease of doing business.

In April 2013, the government decided to adopt the Wassenaar Arrangement Munitions List (WAML) as the ‘Defence Items List’ for licensing purposes under the Industries Development and Regulation (IDR) Act, 1951 as an interim measure. In October 2013, Interim List was reviewed by a committee constituted by MoD/Department of Defence Production (DDP). The ‘List of Defence Items’ was finalised by the MoD in 2014 and promulgated by DIPP, MoC&I vide Press Note No 3 (2014 Series) dated June 26, 2014. Items not included in the list were not subjected to Industrial licensing.

Present Regulatory Environment

The Ministry of Home Affairs (MHA) vide Notification S.O. 1636 (E) dated 19.05.2017 clarified that Small Arms and Ammunition (up to 12.7 mm caliber) would be licensed under the Arms Act, 1959 / Arms Rules, 2016 for which MHA would be the licensing authority. For the item viz. Tanks and other armored fighting vehicles, defense aircraft, spacecraft, all types of warships, arms and ammunition and allied items of defense equipment other than small arms shall be licensed under the Arms Act, 1959 / Arms Rules, 2016 for which DIPP will be Licensing Authority. The rest of the items which are not mentioned in the above MHA notification but mentioned in Press Note No. 3 of 2014, will be covered under DIPP under Industries (Development and Regulation) Act, 1951.

The MHA vide notification dated 01.11.2018 notified the Arms Rules 2016 (Third Amendment), wherein it has notified that Firearms (small arms and ammunition and allied items of caliber up to 12.7 mm) and their parts are only licensable under Arms Act, 1959 / Arms Rules 2016. Further, MHA vide notification dated 14.12.2018 in supersession of their earlier notification S.O. 1636 (E) dated 19.05.2017 had revised the schedule of items required under delegated powers to the Secretary (DIPP) under the Arms Act / Arms Rules, according to which “Tanks and other armored fighting vehicles” and “Arms and ammunitions and allied items of defence equipment; other than small arms of caliber 12.7 mm and above ” are only licensable under the Arms Act, 1959 / Arms Rules 2016.

Other defense items viz. “Defense aircraft” and “all types of warships” have now been removed from the Arms Rules 2016 due to non-coverage under the said rules; and the same has been notified by DIPP along with Press Note 1 (2019 series) dated 01.01.2019 along with other licensable defense items under I(D & R) Act, 1951. The list of defense items which now fall under the I(D & R) Act 1951 can be seen under the said press note.

Procedure for Grant of Industrial License

All applications for grant of licenses for the manufacture of small arms (up to 12.7 mm caliber) can be made directly to in Form A-6 along with security clearances pro-forma manually to Under Secretary (Arms Section), Ministry of Home Affairs. All applications for the grant of licenses for the manufacture of arms and ammunition (caliber above 12.7 mm) configured for defense purposes viz. Tanks and other armored fighting vehicles, defense aircraft, spacecraft, all types of warships, arms and ammunition and allied items of defence equipment other than small arms as listed in the schedule of MHA notification dated 19.05.2017 can be made in  Form A-6 to the Industrial License Section, Department of Industrial Policy and Promotion (DIPP). Applications for the rest of the items which are not covered in MHA notification dated 19.05.2017, but are listed under Press Note No. 3 of the 2014 series are to be made online on ebiz portal of DIPP.

Click Above

On receipt of the applications, the DIPP shares it with the Ministry of Defense (MoD), where a standing committee on private sector participation in defense production examines the IL applications with all due diligence and sends its comments back to the DIPP. DIPP also sends IL applications to the Ministry of Home Affairs (MHA) and the respective state governments for comments. Upon receipt of comments, the proposals are discussed in the DIPP Licensing Committee. The Licensing Committee takes into account security clearance from Ministry of Home Affairs and views of the Ministry of Defense. A decision is taken to grant or reject Industrial License in consultation with all stakeholders. License fees range from a minimum of Rs. 5000 / – to a maximum of Rs. 50,000 / – to be paid, which is to be paid at the time of grant of license.

Validity of Industrial License & Reissue

The license granted by MHA under Arms Rules, 2016 and by DIPP delegated power under the Arms Act, 1959 for manufacturing shall now be valid for the life-time. Vide Press Note 10 of the 2015 series; the validity of existing and future Industrial licenses for defence sector has been revised from 7 years (extendable up to 10 years) to 15 years (extendable up to 18 years). If IL has already expired, a new application is required. Defense industrial license is not required for those items which have dual uses except those items which are mentioned in Press Note 3 of 2014 series dated 26/06/2014.

Compliance Requirement

License holders are required to follow the security architecture under the Safety Manual for Licensed Defense Industries based on the respective item categorization. Companies are subjected to an external security audit by intelligence agencies once in two years and a cybersecurity audit every year by CERTIN. The Security Manual for Licensed Defense Industries available at the website of Department of Defense Production (www.ddpmod.nic.in). Upon commencement of production, the licensee is required to report the commencement in accordance with the terms of the IL. The licensee will be required to submit the progress of manufacture on a bi-annual basis on half-yearly return form as per the terms of the license (available at www.ddpmod.gov.in).

Industrial licence is also required for the upgrade of licensable defence items. Maintenance, Repair and Overhaul (MRO) activities in defence sector are treated as services and not subjected to the industrial licence under IDR Act unless it involves manufacturing of any components/sub-assemblies which are licensable. ‘Consolidated FDI Policy’ of Jun 2016 (Press Note 5) allow FDI in Defence Industry are also subjected to Industrial license under the IDR Act 1951 and Arms Act, 1959. 

Conclusion

Continuous reforms since the beginning of 2001, boosted the motivation of the private sector in Indian defence industry. The pie of defense business by private companies is increasing year on year. Policies and procedures for ‘Make in India – Defence’ ‘FDI for defence sector’ ‘ Export facilitation for defence items’ ‘Promotion of MSMEs in Defence’ ‘SEZ & State specific Defence policies’  & ‘Defence offset’ are further supporting India’s dream of self-reliance. Issuance of a large number of industrial licenses in the last 18 years is an indicator of the role that the private industry is going to play in the next two decades.

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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In this article, Shruti Goel, pursuing B.L.S LLB from Government Law College, Mumbai discusses on the co-operative banking system in India.

Introduction

The recent Punjab and Maharashtra Co-operative Bank’s (PMC Bank) crisis has created chaos among thousands of its depositors. PMC Bank is a multi-state scheduled urban cooperative bank with its operations in Gujarat, Maharashtra, Goa, Karnataka, Andhra Pradesh, Madhya Pradesh and New Delhi. With a network of 137 branches, it ranks among the top 10 cooperative banks in the country. Recently, due to some under-disclosed bad loans above the ceiling limit, the RBI has imposed lending restrictions on PMCB, at Rs 10,000 per customer for six months. The bank has also been brought under Directives which means it will be directly overseen by the RBI for this period. So to understand this scam and its intricacies we are going first to discuss what are cooperative banks, why are they needed and what reforms are needed to help prevent such scams and to gain depositor’s trust back.

History of Cooperative Banks in India

The genesis of the cooperative movement and its implementation in a modern technical sense can be traced after the Industrial Revolution in England during the period of 18th and 19th century. The idea of Hermann Schulze and Friedrich Wilhelm Raiffeisen during the economic meltdown to provide easy credit to small businesses and poor sections of the society took shape as cooperative banks of today across the world. 

Pre-independence period (prior to 1947)

British India replicated this model and based on the recommendations of Sir Frederick Nicholson (1899) and Sir Edward Law (1901), the Co-operative Credit Societies Act, 1904 was passed. It tried to deal with the problems of rural indebtedness and consequent conditions of farmers in the country. The Act promoted the establishment of credit cooperative societies which led to the formation of first urban co-operative credit society, registered on October 1904 at Kanjeepuram now in Tamil Nadu State. It marked the beginning of the institutionalization of the Cooperative Banking system in India. But there were certain defects in the Act which restricted the reach of the expected benefits of cooperatives. The Act only permitted the registration of credit societies, and there was no provision for the protection of non-credit societies or federal societies. These shortcomings were recognised by the Government and to remedy it; more comprehensive legislation was introduced, known as the Cooperative Societies Act of 1912. It recognized the formation and organisation of non-credit societies and the central co-operative federations.

In 1919, after the end of the first world war under the Treaty of Versailles,1919, the Montague Chelmsford Reforms were introduced in India under which Cooperation becomes a transferred subject which was to be administered by the States. The need for separate acts for effective implementation and to widen the reach of the cooperative banks was felt by the States. The Bombay Provincial Government was the first to pass its own act which was known as Bombay Provincial Cooperative Societies Act, 1925. Other state governments like Madras, Bengal, Bihar and Punjab followed the Bombay Act and passed their own legislation in the following years.

In 1942, the British Government enacted the Multi-Unit Cooperative Societies Act, 1942, the ambit of which covered societies whose operations are extended to more than one state. The Act provided for the regulation of affairs of such society by the provisions of cooperative societies act of the state where the principal business of the society is located.

Post-independence period (after 1947)

After independence, the movement of cooperative societies maintained its pace even after facing several hardships during that phase and continued to be part of the economic development of the country. The First Five Year Plan recognised the importance of cooperatives in the implementation of development plans, particularly targeting the farmers and weaker section of the society. In 1954, Government of India appointed a committee called All India Rural Credit Survey Committee to remedy the problem of rural credit and other financial issues of the rural community. It recommended a well defined institutional framework for cooperative organizations, particularly for meeting the needs of rural India. The recommendations of the committee were recognised and were put into effect under the Second Five Year Plan. The Second Five Year Plan recommended expanding the scope of cooperative activities to other fields with special emphasis on the warehousing sector. The Third Five Year Plan emphasised on training personnel for the cooperative sector and to increase the reach of the cooperative movement. The Fourth Five Year Plan recommended the consolidation of a cooperative system for effective functioning. The Fifth Five Year Plan recommended the establishment of Farmers Service Societies. The Sixth Five Year Plan developed a point programme for a cooperative society to bring economic development and for expanding the scope of cooperative societies. The Seventh Five Year Plan also focussed on expansion and growth of the scope of cooperative societies so as to achieve greater employment and decrease poverty in the country.

What are cooperative banks?

A co-operative bank is a financial entity which belongs to its members, who are at the same time the owners and the customers of their bank. It is often established by people belonging to the same local or professional community having a common interest. It is formed to promote the upliftment of financially weaker sections of the society and to protect them from the clutches of money lenders who provide loans at an unreasonably high-interest rate to the needy. The co-operative structure is designed on the principles of cooperation, mutual help, democratic decision making and open membership. It follows the principle of ‘one shareholder, one vote’ and ‘no profit, no loss’.

Cooperatives Banks are registered under the Cooperative Societies Act, 1912. These are regulated by the Reserve Bank of India and National Bank for Agriculture and Rural Development (NABARD) under the Banking Regulation Act, 1949 and Banking Laws (Application to Cooperative Societies) Act, 1965.

Cooperative banks differ from commercial banks on the grounds of organisation, governance, interest rates, the scope of functioning, objectives and values.

Characteristics of Cooperative Bank

Some of the main features or characteristics of cooperative banks are:

Customer-owned entities

The members of cooperative banks are both the owners and the customers of the bank. Thus, the aim of the cooperative bank is not to maximize profits but to provide the best possible services to its members. Some of the cooperative banks also admit non-members so as to provide them with banking services.

Democratic member control

Cooperative banks are owned and controlled by members, who democratically elect the board of directors. The basic principle of co-operatives “one man one vote” is followed, irrespective of the number of shares held by a member, which ensures that no member enjoys any arbitrary power over other members.

Profit allocation

A specified portion of the profits are transferred to Statutory Reserve and other reserves, and then a fair rate of interest is paid on the capital subscribed by the members. A part of this profit can also be distributed to the co-operative members, with legal and statutory limitations in most cases.

Inclusion of rural masses

It plays a significant role in the financial inclusion of unbanked rural masses.

Functions of Cooperative Banks

• It provides financial assistance to people with small means and protects them from the latches of money lenders providing loans and other services at a higher rate at the expense of the needy.
• It supervises and guides affiliated societies.
• Rural financing- It provides financing to rural sectors like cattle farming, crop farming, hatching, etc. at comparatively lower rates.
• Urban financing- it provides financing for small scale industries, personal finance, home finance, etc.
• It mobilises funds from its members and provides interest on the invested capital.

Objectives of Cooperative Banks

• To provide rural financing and micro-financing.
• To remove the dominance of money lenders and middleman.
• To provide credit services to agriculturalists and weaker sections of the society at comparatively lower rates.
• To provide financial support and personal financial services to small scale industries, housing financial assistance, etc.
• To provide basic banking services to its members.
• To promote the overall development of rural areas.

Structure of Cooperative Banks in India

The co-operative banking structure in India is divided into Short term structure and Long-term structure.

Short term structure has three levels

• A State Co-operative Bank works at the apex level (i.e. works at the state level). 
• The Central Co-operative Bank works at the Intermediate Level (i.e. works at district level).
• Primary Co-operative Credit Societies at a base level (i.e. works at village level).

Long term structure has two levels

• State Co-operative Agriculture and Rural Development Banks (SCARDBs) at the apex level.
• Primary Co-operative Agriculture and Rural Development Banks (PCARDBs) at the district level or block level.

Types of Cooperative Banks in India

The co-operative banking structure in India is divided into the following 5 categories:

1. Primary Co-operative Credit Society

• The Primary Co-operative Credit Society is an association of borrowers and non-borrowers residing in a particular locality. 
• The funds of the society are derived from the share capital and deposits of members and loans from central co-operative banks.
• Borrowing constitutes the most important element of their working capital.
• The borrowing powers of the members as well as of the society are fixed but may differ from state to state.
• The loans are given to members for the purchase of cattle, fodder, fertilizers and pesticides.

2. Central Co-operative Banks

• These are the federations of primary credit societies in a district and are of two types:

1. Those having a membership of primary societies only.
2. Those are having a membership of societies as well as individuals.

• The funds of the bank consist of share capital, deposits, loans and overdrafts from state co-operative banks and joint stocks.
• These banks provide finance to member societies within the limits of the borrowing capacity of societies. 
• They also conduct all the business of a joint-stock bank. 

3. State Co-operative Banks

• The state co-operative bank is a federation of central co-operative bank and acts as a watchdog of the co-operative banking structure in the state.
• It procures funds from share capital, deposits, loans and overdrafts from the Reserve Bank of India.
• The state co-operative banks lend money to central co-operative banks and primary societies and not directly to the farmers.

4. Land Development Banks

• These are organized in 3 tiers, namely; state, central, and primary level with the objective to meet the long term credit requirements of the farmers for developmental purposes.
• National Bank for Agriculture and Rural Development (NABARD) supervises Land development banks.
• The sources of funds for these banks are the debentures subscribed by both Central and State government as these banks do not accept deposits from the general public.

5. Urban Co-operative Banks

• It refers to primary cooperative banks located in urban and semi-urban areas.
• Earlier the scope of these banks was restricted, which now has been considerably widened.
• They provide funds and services to small borrowers and small business.

Cooperative banks in India fund rural are as under:

• Agriculture
• Livestock
• Milk
• Nursery
• Personal finance

Cooperative banks in India finance urban areas by virtue of:

• Self-employment
• Industries
• Small-scale units
• Home finance
• Consumer finance
• Personal finance

Importance of Cooperative Banks

• It has an extensive branch network all over the country, making credit easily available even to rural areas. It accounts for 67 per cent of total rural credit.
• It is an integral source for credit to agriculturalists.
• It confirms to the requirements of democratic planning and economic progress.
• It provides support to small and marginal farmers for buying inputs, storage and marketing assistance.

Advantages of Cooperative Banks

Easy to form

Registration and legal requirements are comparatively easy compared to traditional banks. It takes a group of ten adults to form a cooperative bank. It needs a base capital of 25 lakhs only as compared to 100 crores of Small Finance Banks.

Alternative credit source

One of the objectives of the cooperative system is to provide easy accessibility to the rural section of the country so as to protect them from the clutches of greedy money lenders. These money lenders exploit the needy by providing credit facilities at higher rates and by manipulating their accounts. It acts as an effective alternative to this traditional money lending system.

Cheap credit

It provides cheap credit to rural masses. It provides a high-interest rate to members for their investments and low lending interest rate. This also protects the rural masses from the exorbitant interest rate at which money lender provides credit, thus breaking their monopoly.

 Encouragement of savings and investments

It has encouraged the habit of thrift among the masses. Instead of hoarding money or spending unnecessarily, masses tend to invest and save their money.

Advancement in farming

Cooperative societies provide credit to agriculturalists at cheaper rates to buy inputs, warehousing facilities, marketing assistance and other facilities. These banks often provide assistance for buying cheap products and services and help them by introducing them to modern technology and better farming methods to improve their output.

Case of Punjab and Maharashtra Cooperative Bank (PMC Bank)

• The PMC Bank had Rs 11,617 crore in deposits as on March 31, 2019. It had violated Reserve Bank of India (RBI) norms by lending heavily to one client-real-estate firm Housing Development and Infrastructure Limited (HDIL), which itself is facing bankruptcy proceedings. PMC Bank has extended 73 per cent of their assets to HDIL.
• The former chiefs of the bank and the promoters of HDIL have been booked for cheating, and lookout notices have also been issued against them.
• The PMC Bank crisis shows how the watchdogs -the bank’s auditors, the RBI and the government were lousy in doing their jobs and taking responsibility.
• An action was taken by RBI under sub-section (1) of Section 35A of the Banking Regulation Act,1949 read with Section 56 of the Act which deals with the power of RBI to give directions.
• PMC Bank cannot grant or renew any loans or advances or to make any investments or accept any new deposits without the prior approval of RBI for the next six months.

Problems faced in the Indian Cooperative Banking System

Small capital base

Cooperative banks have a small capital base as it can start with a capital base of 25 lakhs, making it difficult for them to account a portion of such capital as their working capital and raising working capital has been a major hurdle for almost all cooperative banks.

Political interference

Politicians use them to increase their vote bank and usually get their representatives elected over the board of directors in order to gain undue advantages like sanctioning of loans which later gets written off.

RBI Supervision

The supervision of RBI is not as stringent on cooperative banks as compared to commercial banks. RBI inspects the books of these banks only once a year.

Dual control

Cooperative banks are controlled under the dual system, i.e. by RBI and by their respective State government which poses a problem in coordination and management.

Professional management and technological advancement

Cooperative banks are often reluctant to adopt new technologies like computerised data management. Professional management in the banks is often missing due to lack of training of personnel because of lack of funds.

Dependence of finance

Cooperative banks depend heavily on RBI, NABARD and the government for refinancing facilities. It depends on the government for capital rather than on its members.

Overdue loans

Overdue loans of cooperative banks are increasing yearly, restricting the recycling of funds which in turn affects the lending and borrowing capacity of the bank.

Measures to be taken

PMC Bank is not the first case of failure of the cooperative banking system in India. The Madhavpura Cooperative Bank scam in 2001-02 was a clear signal to bring certain changes in the regulatory and supervisory structure of cooperative banks. But no heed was given at that time. Since then, urban cooperative banks are failing with alarming regularity. Their numbers fell from 1,926 in 2004 to 1,551 in 2018, as per RBI data. These issues need to be addressed and remedied if the Government wants the public to place their trust in the country’s banking system.

In 2015, an RBI panel under R. Gandhi, a former deputy governor at the Central bank, had proposed several governance reforms for the cooperative banking sector, some of which are as follows:

• Greater control and supervision of RBI upon the cooperative banks.
• These banks and other financial institutions should be professionally managed, which means that the board of directors should be delegated power similar to those delegated under commercial banks. Board of directors should be able to conduct an independent assessment and supervise the bank’s functioning. They should be able to question the shareholder’s representation.
• The committee also recommended certain changes in Banking Regulation Act,1949, so as to increase the ambit of power of RBI to wind up and liquidate banks without involving other regulators under the cooperative societies’ laws.
• Conversion of UCBs into small finance banks by RBI should be allowed subject to fulfilment of certain conditions.
• Creation of umbrella organisation for supervising and coordinating the activities of all cooperatives. Such an organisation should be over and above the board of directors and should be reporting directly to RBI so as to bring it under better control.

Conclusion

Cooperative banks play an integral part in the implementation of development plans and are important for the effective functioning of the banking system in India. India is termed as an underbanked country, and after so many scams, it is need of the hour to take necessary measures to remedy the lucane and to boost the confidence and trust of the public in the banking system. 

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 Cooperative Banking System in India appeared first on iPleaders.

This article has been written by Siddharth Pareek, Student at National Law University, Jodhpur, 2^nd Year, BA. L.L.B (Hons.).

Introduction

The most fundamental requirement in today’s world for people, especially women, to live with dignity is the existence of legal rights. These rights are the backbone of a human being and belong to them because of their very existence. The very purpose of having certain human rights is to get protection against the ill elements of society. The umbrella of human rights protects women’s interests globally. The basic fact behind is that “all men are born and remain free and equal in their rights[1].” The human rights basically are philosophy of egalitarian social relations expressed in law through contracts between states and people, as individuals and as social groups. States pledge to maintain indivisible, universal and interdependent standards agreed by the international community, articulated in the human rights instruments. 

The United Nations and Rights of Women

For centuries past, women all over the world have not only been denied full justice, social, economic and political but also as a ‘weaker sex’ they have been abused and exploited. The UN General Assembly[2] recognized that ‘gender-based violence, torture, sexual abuse, sexual slavery and exploitation, international trafficking in women and children, forced prostitution and sexual harassment; as well as violence against women and girls resulting from cultural prejudice, racism and racial discrimination, etc. are incompatible with dignity and worth of human person.’ In India, the principles of human rights were embedded in Indian ethos since the Vedic age. The “Vedas” and the “Arthashastras” have concepts like equality of rights of men and women and just and equal treatment of humans in the society.

“Due to the non-stopping efforts of the International Women’s Rights movement, the violence against women received the attention it deserved[3].” The moral, humanitarian, economic and political imperatives are clear. Taking cognizance of this repression all over, the United Nations passed various instruments with a focus on women’s emancipation and with the object of enhancing the dignity of women all over the world. The standards set out universally by the United Nations’ Charter[4], and elaborated through the International Bill of Rights[5] that includes the International Covenant on Economic, Social and Cultural Rights, together with its sister Covenant International Covenant on Civil and Political Rights[6], and Universal Declaration of Human Rights[7], along with the Convention on the Elimination of all forms of Discrimination Against Women[8] and Convention on the Rights of Child[9] should be honored. Gender justice, a facet of social justice is a composite concept. The term ‘Gender equality’[10] refers that women and men should be treated alike and it stands for the wiping out of male domination and focuses on protection of the legal rights of women. 

Violation Of Women’s Rights: “The Indian Corner”

The primary reason for the exploitation of women is violence against them. Its 21^st century and even now the social ills against women take place quite often in different parts of India and around the world. At the international level, a significant number of declarations, conventions and treaties have been adopted in the field of human rights and protection of women. The international community has reacted to these agreements and documents positively. But still, we come across scandalous violations of human rights often. 

India, the world’s largest democracy, having an independent and extremely vibrant press also frequently suffers from incidents relating to gross violation of women’s rights. Going back to a few decades, during the UN Decade for Women (1976-1985), women from diverse cultural, geographical, religious, racial and class backgrounds initiated and organized to improve the status of women globally. There were different conferences held at different places to spread awareness about the ills and problems that women faced globally. These conferences were critical and primary venues at which different women came and stand together to help and support their community and bridge differences to create a global movement. The concept and the term ‘women’s human rights’ does not point only to the theoretical approaches and stands that women have used to recreate the concepts of human rights, agendas and different programs. Also, the idea of rights of women is directly related to and has an immense impact as a tool for political activism since it’s a revolutionary notion. 

According to the Thomson Reuters 2018 Survey[11] on the ‘World’s Most Dangerous Countries for Women’, India lies at the top. This survey measures problems like sexual and non-sexual violence, the status of healthcare, numbers of human trafficking, discrimination, etc. This shows our countries inability to protect the rights of our women and how vulnerable they are. It not only stops there, furthermore according to the National Crime Records Bureau[12], there were 338,954 incidents of crimes happened against women in 2016. Out of these, there were a total of 38,947 rape crimes. The major crimes and problems faced by the women in the society are categorized further on.

Sexual Harassment & Rape and Burden of Proof

The offence of sexual harassment and rape is considered to be one of the cruelest and heinous crimes. But it’s disheartening that such offences against women are still widespread and prevalent. Section 375 of the Indian Penal Code deals with the offence of rape. No person has the right to transgress or encroach a women’s body. Much more than physical agony, rape creates a mental turmoil. “It is a crime against basic human right and it also violates of victim’s most cherished of fundamental human rights, namely the right to life contained in article 21. To many feminists and psychiatrists, rape is less a sexual offence than an act of aggression aimed at degrading and humiliating women[13].” It destroys the physical integrity of a woman. 

Sexual harassment can be in various forms. It is something, which compels a person to join in unwanted sexual contact or attention. Exhibitionism (exposing sexual parts in public) and Voyeurism (gaining pleasure by watching others private sexual acts) are some examples of sexual harassment without physical contact. The distinguishing factor between rape and sexual intercourse is consent[14]. However, it is extremely difficult to prove the presence or absence of consent in a rape offence. A man is said to commit the offence of rape[15] when he has sexual intercourse with a woman, without her consent and against her will or when the consent has been obtained by putting that person under threat of death or hurt. If the victim in a rape offence submits that her body was put under threat of danger or fear, then the same would never amount to consent. It has been laid down[16] that there is a rule or prudence requiring corroboration of the victims in a case of rape. A woman is just a victim of a carnal desire. In cases of rape, corroboration need not be searched for by the judge if, in the particular circumstances of the cases before him, he is satisfied that it is safe to rely on the evidence of the victim.

Moreover, for proving guilt in sexual harassment or an offence of rape a woman is on the safer side since she is not required to prove that there was any sort of resistance on her part while the commission of the act. Under the India Evidence Act,[17] there is a compulsory statutory presumption, which requires the courts to believe that consent is absent in such cases. This section was included in furtherance and aftermath of the infamous Mathura rape case[18] in which the court acquitted the accused because there were no signs or marks of resistance, which were visible on the body of the accused. Also, to protect the women at the workplace and in the light of the absence of legislation, the Supreme Court formulated a set of legal framework and guidelines.[19] If the victim alleges that there was an absence of consent, then the burden of proof lies on the accused to prove his innocence. It would be inhumane and disastrous if we try to shift this burden of proof on the victim since this would put them in an extremely uncomfortable and vulnerable situation and it might even deter them from filing the complaint in the first place. Therefore, we need more safeguards to protect the women and the victims from primary and secondary victimization.

Assault and Criminal Force against Women

Section 354 of the Indian Penal Code criminalizes assault or criminal force to women. The use of criminal force against women means assaulting a woman with intent to outrage her modesty. Such cases happen frequently and every day but only a small fraction of them are reported. The Supreme Court while deciding the case of State of Punjab v. Major Singh[20] pointed out that an offence, which does amount to rape, may come under the ambit of section 354 of the I.P.C. 

In the case of People’s Union Democratic Rights v. Police Commissioner, Delhi, Police Headquarters[21] the Supreme Court charged the accused under Section 354 I.P.C. where the accused stripped a woman bare and thrashed her. Though she was awarded compensation the actual loss that she suffered is not recoverable since the damage was done. We need strong preventive measures rather than merely providing some sort of compensation to the victims.

In the case of Rupen Deo Bajaj v. Kanwar Pal Singh Gill[22], the Supreme Court stated that any offence under this section should not be treated trivially since it’s a grave offence transgressing and outraging the modesty of a woman. Right to privacy and personal liberty are sacrosanct rights of any individual, therefore any action, which affects the modesty of a woman, or put her into an uncomfortable situation should be made an offence and the accused should be properly dealt with. 

Honour Killing and Women

The expression ‘honour killing’ is in itself falsified. It is used to cover the cold-blooded murders done by the members of the family if any member has brought shame and dishonour to the family. It is often perceived as a ritualistic form of murder. In the majority of the cases, females are the victims of honour killings when they do anything, which the family considers are immoral or impure. It is also called as customary killing in which another member justifies the killing of a member of the family. 

The perceived dishonour can be because of various reasons. There are several actions, which are strongly linked to honour-based violence; some of them are as follows:

• Pre-marital pregnancy
• Infidelity
• Asking for custody of children after divorce
• Falling victim to rape
• Loss of virginity outside marriage
• Having unapproved relationships
• Refusing an arranged marriage
• Asking for divorce
• Leaving the family or marital home without permission
• Causing scandal or gossip in the community

In India, honour killings have been reported in various northern regions (primarily in the states of Punjab, Uttar Pradesh, Haryana, Rajasthan and Bihar) as a result of persons acting against their family’s will. Also, the erroneous concept of ‘Khap Panchayat’s is a serious concern since it is against the law of the land. The only legally constituted body to account such issues is the Judiciary and any such non-judicial body should be scrapped. It is very obvious that the country needs stringent legislations to tackle this heinous crime as thousands of people in India have become victim to this social ill and have died.

Domestic Violence

Domestic Violence is an expansive term but one of the very astonishing features is that economic, emotional, mental and verbal abuses have been considered to be constituents of domestic violence. In some countries like the U.S.A., the above-mentioned elements are not considered to be in the ambit of so-called domestic violence. The first set of international norms in the area of protection of women from violence was the UN Declaration on the Elimination of Violence against Women[23], which focused on the security of women from certain forms of violence. Both the terms ‘legislation’ and ‘violence’ are extremely controversial.

When we talk about Indian society, violence in home or violence behind closed doors even today in many areas isn’t considered as unacceptable behaviour. This “practice” is deeply rooted in Indian society. However, after the recent development in legislation to domestic violence has helped women in the society to raise their voices and fight against the violent patriarchal society. But so far if we talk about the efficacy of such legislation, it is limited and somewhat have a dubious benefit to women. “The statistical literature on domestic violence in India to date has focused on the sub-national scales such as studies over a few villages in a sub district or slum areas in metropolitan cities [24].” The approach of domestic violence is complex. “Across the subcontinent there exist a wide variety of cultural norms and practices relating to domestic violence. The over-arching regional pattern is of more patriarchal and traditional states in the North such as Uttar Pradesh and Punjab, and relatively more egalitarian and educated states in South, such as Kerala and Tamil Nadu.”[25] There have various social and non-social factors been emerged which have helped the women to change their outlook towards the society on one hand and have changed societies perception towards them on the other. Phenomena like industrialization, globalization, and migration have given a ‘positive push’ to the women in the society and have enabled them to work away from home and become self-sufficient. Thus, we can see that the structural inequalities present in society have begun to dilute. A penal provision like Section 498A[26] and The Protection of Women from Domestic Violence Act, 2005 is the major legal framework in India to protect women from Domestic Violence. 

The contemporary legal framework

The International Perspective

The progress towards the constitution of women’s legal rights can be categorized into 3 stages.

The first stage witnessed the development of international convention that focused on the specific rights of women. 

The Second stage witnessed the emergence of Universal Declaration of Human Rights[27], International Covenant on Economic, social and Cultural Rights[28], European Convention for the Protection of Human Rights[29] etc. were developed.

Finally, the third stage witnessed the development of important conventions like Convention on Elimination of Discrimination of All Forms of Discrimination Against Women[30] and various laws, practices and policies to bring in a genuine change in the society.

Convention on Elimination of Discrimination of All Forms of Discrimination Against Women (CEDAW) – It lays down comprehensive rights for women and also the additional measures for the protection of the women’s rights in the international arena. This convention imposes obligations on the Governments of various countries to take comprehensive actions to combat violence against women and to carry out efforts for the safety of women. “CEDAW is a truly significant statement of Women’s rights, which supersedes and particularizes the applicability of other instruments of international law to women. Its comprehensiveness touches every aspect of women’s lives, in the political, social, economic, legal, health and family spheres.”[31]

The National Perspective

“As a reaction to the male-dominated patriarchal structural and culture of our society and politics and the chauvinistic role of men, women of our time have become vocal and home started amplifying their equal rights to that of men. So, ours is a women’s era in as much as there is an increased consciousness about women rights.”[32] India, today has a set of stringent legislations like – 

• The Immoral Traffic (Prevention) Act, 1956
• The Criminal Law (Amendment) Act, 2013
• The Commission of Sati (Prevention) Act, 1987 (3 of 1988)
• The Dowry Prohibition Act, 1961 (28 of 1961) (Amended in 1986)
• Protection of Women from Domestic Violence Act, 2005
• The Sexual Harassment of Women at Workplace (PREVENTION, PROHIBITION and REDRESSAL) Act, 2013
• The Indecent Representation of Women (Prohibition) Act, 1986

But still we need a lot more stringent and comprehensive women-specific legislation to protect the rights of women and spreading an air of deterrence against crimes against women in the society. “To make population policies fully supportive of women’s rights, countries must modify restrictive national laws, enforce laws that ensure women’s rights and reassess policies of non-ratification of international treaties that bear on women and reproductive rights.”[33]

Sine India ratified the CEDAW, which imposes a positive obligation to take appropriate steps to take appropriate steps to prevent discriminations of all forms against women besides taking steps to protect the honor and dignity of women. In Madhu Kishwar v. State of Bihar[34], the Supreme Court observed that CEDAW is an integral scheme of Fundamental Rights and Directive Principles of the Indian Constitution. “The Government had ushered in the new millennium by declaring the year 2001 as ‘Women’s Empowerment Year’ to focus on a vision ‘where women are equal partners like men’. The objective of Government policy in India has been to bring about development, advancement and empowerment of women in the country through active participation of all stakeholders.”[35]

Conclusion

The present social system cannot be called as a full-fledged prosperous system because we have not reached the stage where we can bring men and women at parity. India, the world’s largest democracy, having an independent and extremely vibrant press frequently suffers from incidents relating gross violation of women’s rights like Rape and Sexual Harassment, Cruelty and Dowry Death, Domestic Violence, Honour killing and suppression of their liberty.

But we have come a long way and have been fighting to bring a genuine change through effective legislations and social participation. Due phenomena like globalization, industrialization and migration, we can see the transformation in the ideologies of people in the society and the change in the outlook of people towards women with a positive difference. We still have a long way to go but with constant productive efforts, we will surely be able to achieve the status of a society in which women are self-sufficient and safe.

Endnotes

[1] France: Declaration of the Right of Man and the Citizen, 26 August 1789

[2] “Women 2000: Gender Equality, Development and Peace for the 21^st Century” The UN General Assembly 23^rd Special Edition.

[3] Radhika Coomaraswamy and Nimanthi Perera Rajasingham, “Constellations of Violence: Feminist Interventions in South Asia”, Women Unlimited, 2008

[4] United Nations, Charter of The United Nations, 24 October 1945, 1 UNTS XVI

[5] Newman, ‘The International Bill of Rights: Does it exist?’ in Cassese, A., Current Problems of International Law, (ed.) at 107-16

[6] UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171.

[7] UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A(III).

[8] UN General Assembly, Convention on the Elimination of All Forms of Discrimination Against Women, 18 December 1979, United Nations, Treaty Series, vol. 1249, p. 13.

[9]  UN General Assembly, Convention on the Rights of the Child, 20 November 1989, United Nations, Treaty Series, vol. 1577, p. 3.

[10] B.K. Ghatak, Dr. Ambedkar’s Thought, APH Publishing Corporation, 1997 at p. 121.

[11] Thomson Reuters 2018 Survey, The World’s Most Dangerous Countries for Women .

[Link – https://poll2018.trust.org/].

[12] National Crime Records Bureau, Crime in India Survey, 2016 

[Link-http://ncrb.gov.in/StatPublications/CII/CII2016/pdfs/NEWPDFs/Crime%20in%20India%20-%202016%20Complete%20PDF%20291117.pdf].

[13] Bodhisattawa Gautam v. Subhra Chakraborty, (1996) 1 SCC 490.

[14] Tukaram v. State of Maharashtra, AIR 1979 SC 185.

[15]  S. 375, The Indian Penal Code, 1860.

[16] State of Maharashtra v. M.N. Mardikar, (1991) 1 SCC 57.

[17] S. 114, The Indian Evidence Act, 1872 .

[18] supra, 14.

[19] Vishakha v. State of Rajasthan, (1997) 6 SCC 214

[20] State of Punjab v. Major Singh, AIR 1967 SC 63.

[21] People’s Union Democratic Rights v. Police Commissioner, Delhi, Police Headquarters, (1989) 4 SCC 730

[22] Rupen Deo Bajaj v. Kanwar Pal Singh Gill, (2005) 6 SCC 161.

[23] Declaration on the Elimination of Violence against Women, A/RES/48/104, 20 December 1993

[24] Hackett, Michelle T. “Domestic Violence against Women: Statistical Analysis of Crimes across India.” Journal of Comparative Family Studies, vol. 42, no. 2, 2011, pp. 267–288. 

[Link – JSTOR, www.jstor.org/stable/41604436].

[25] id

[26] S. 498A, The Indian Penal Code, 1860.

[27] supra, 7

[28] UN General Assembly, International Covenant on Economic, Social and Cultural rights, 16 December, 1966, United Nations, Treaty Series, Vol. 993, p. 3.

[29] Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950.

[30] Supra, 8.

[31] Tinker, Catherine. “Human Rights for Women: The U. N. Convention on the Elimination of All Forms of Discrimination against Women.” Human Rights Quarterly, vol. 3, no. 2, 1981, pp. 32–43. 

[Link – JSTOR, www.jstor.org/stable/761855]

[32]  Das, Jogendra Kr. “Reflections on Human Rights and the position of Indian Women”, The Indian Journal of Political Science, vol. 64, no. 3/4, 2003, pp. 203–220. 

[Link – JSTOR, www.jstor.org/stable/41855782].

[33] Pine, Rachel N. “The Legal Approach: Women’s Rights as Human Rights.” Harvard International Review, vol. 16, no. 4, 1994, pp. 26–77. 

[Link – JSTOR, www.jstor.org/stable/42760499].

[34] Madhu Kishwar v. State of Bihar, 1996 AIR 1864

[35] Ojha, Purnima. “Women’s Issues in India: Role and Importance of Media”, The Indian Journal of Political Science, vol. 72, no. 1, 2011, pp. 87–102.

[Link – JSTOR, www.jstor.org/stable/42761809]

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 Dynamics Of Transgression Of Women’s Human Rights: The Contemporary Legal Framework In India appeared first on iPleaders.

This article has been written by Rahul Ranjan.

Introduction

“The quality of a nation’s civilization can be largely measured by the methods it uses in the enforcement of its criminal law.”[1]

-P. Venkatrama Reddi

From the time immemorial to the current scenario, if one is asked about the golden era for a wife under the institution of marriage, where she was held above the male counterpart or even as equals, there would be no answers. Women were wholly-owned subsidiaries and not independent beings or things, to be particular. Marriage, according to Gordon B. Hinckley (an American religious leader), in its truest sense, is a partnership of equals, with neither partner exercising dominion over the other, but, rather, with each, encouraging and assisting the other in whatever responsibilities and aspirations he or she might have.[2] However in this Indian country, where goddesses are worshipped, male prove their masculinity and masochism by forcing their wife to non-consensual sex, which is no less than rape; but done within the iron tag of marriage.

This act itself is not the worst part of the deprivation of women in Indian society but foregoing the person engaging in this heinous act is for sure the one. Access to justice in its widest sense can be understood as a right to legal remedy against any act which is in any way an infringement to the principles of law. However, in this country, marital rape is not against the Indian law; which eventually licenses a husband to rape his wife without any fear of criminal action by the state. This is a part of Indian Justice System which has been inaccessible to the Indian wives and there is a dire need of a set of regulations concerning the same. Law cannot afford to remain static. Law should be interpreted in such a manner to encompass the new problems that arise with varying situations and the scenario of the society[3]. With ever-increasing literacy rate and ease of access to connect to the world, women have slowly started to know about their rights and the violation of the same. This is the time when the Legislature and the Judiciary needs to join hands and take a step towards making this inaccessible part of the justice available to those victimized ladies who never ever have got any chance to speak for themselves against a kind of crime which is sufficient to leave a mark on their soul for a lifetime. Nevertheless, it is the time when whole India should stand on a common consensus that without criminalizing marital rape, there stands no chance of women empowerment and gender equality. 

Marriage, marital rape and Indian society

According to the general definition, Marriage is a state of being united to a person of the opposite sex as a husband or a wife in a consensual and contractual relationship recognized by law[4]. The legal status, condition, or relationship that results from a contract by which one man and one woman, who have the capacity to enter into such an agreement, mutually promise to live together in the relationship of husband and wife in law for life, or until the legal termination of the relationship.[5] Marriage in Indian society is basically an amalgamation of two people of the opposite sex, who get together to perform marital and religious duties and to take the kin ahead. In Indian society, it had been a general notion that man is made to support and run the family and woman to look after the family working under the guidance of the husband. This preconceived notion is still prevalent in the society and ultimately has given an upper hand to the male members, which is a basic reason for deprivation of women in various forms; being silent against marital rape is one among them. 

Marital rape is non-consensual sex between spouses which is the vehicle to accomplish the desired result, such as to overwhelm, overpower, embarrass, and humiliate another person. Marital rape refers to unwanted intercourse by a man with his wife obtained by force, threat of force, or physical violence, or when she is unable to give consent. It is a non- consensual act of violent perversion by a husband against the wife where she is abused physically and sexually. As Oxford living dictionary describes marital rape, it simply and in very plain language means, “rape committed by a person to whom the victim is married”. 

This definition given by the Oxford dictionary leaves no stones unturned regarding the marital rape being a rape, which happens behind those closed doors in the name of a sacred institution of marriage; still, Indian legislature is sitting quietly on this matter, taking credit for making laws for women safety and talking about women empowerment. Nevertheless, this conservative Indian society, which has compelled a woman to think that she is not only a second class citizen but also a second class gender, is one of the biggest reasons for this high tolerance level of women. Once asked by the Delhi High Court on the issue of criminalizing marital rape, the Center replied that criminalizing it may hamper and destabilize the institution of marriage, and will become an easy tool for harassment of husbands.[6] This makes it evident that the thinking or the mentality and the approach needed to bring a change in the society is clearly lacking, both in the part of the victims and the rest of the society. People are not ready to accept that marital rape is to a rape and fear that it may hamper the position of men as against women. 

Marital rape is too rape

The ancient patriarchs who came together to write their early covenants had used the rape of a woman to forge their male power- how then could they see rape as a crime of man against a woman?[7] Before commenting on the fact that marital rape is no less than a rape, let us first understand what a rape means according to Penal Law of India. 

To make out the offence of rape defined under Section 375 of the Indian Penal Code, rape must either be 

1. against her will, or 
2. Without her consent. 

The courts have clarified that these are two separate tracks to proving rape: ‘against her will’ means the woman has resisted and there was opposition while ‘without her consent’ would comprehend an act of reason accompanied by deliberation[8].

This gives us a clear picture of the instances which can come under the definition of rape and should be punished under Section 376 of IPC. Wherever there is a lack of will or consent by the female partner under any kind of sexual intimacy, it will be called rape and thus calls for punishment. However, the wedlock is considered as the dead-end of a woman’s consent and will. Marriage, as per an Indian’s context tends to mean surrendering yourself whenever the husband asks for any sort of sexual favours. As per ancient historians such as Manu and Yajnavalkaya, marriage in Hindu religion is a religious institution which is pious and sacramental in nature, and is essential to perform various religious duties. A man’s life is incomplete without marriage, and he completes himself by taking up a woman as his better half.[9] The most basic function of marriage was to perform religious duties and both the counterparts were placed on equal footing. It was said that God resides in those homes, where females are respected. Manu was of the view that a wife is a divine institution given by Gods and one should think that she has been obtained his (Husband’s) choice. 

However, there has been a paradigm shift in the true essence of marriage in recent days. It is becoming more of a sex-based institution from a religious-based institution with a predominance of men. The situation of women is still deteriorating in Indian society and the elite class is still silent on the topic concerning the infringement of basic right of a woman. 

Sir Mathew Hale, Chief Justice in England, during the 1600s in his treatise Historia Placitorum Coronae or The History of the Pleas of the Crown wrote, “The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract, the wife hath given herself in kind unto the husband, whom she cannot retract.”[10]

This statement was made during the 1600s but is still prevalent today, at least in case of India. There has been a lot of hue and cry for gender equality but nothing much has been done for a woman getting into the role of a wife. Most recently a Special Fast Track Court in New Delhi has ruled that intercourse between husband and wife, even if forcible, is not rape and no culpability can be fastened upon the accused[11].   Inside the definition of marital rape, the right of a woman to bodily integrity and to decline to have sexual intercourse with her husband has been statutorily taken away and non-consensual sexual intercourse with her husband is not an offence under the IPC.

The following are the three kinds of marital rape[12], generally prevalent in society;

• Battering rape: In this type of marital rape, women experience both physical and sexual violence in the relationship and in many ways.  
• Force only rape: In this type of marital rape, husbands use only that amount of force, as it is necessary to coerce their wives. 
• Obsessive rape: In obsessive rape, assaults involve brutal torture and/or perverse sexual acts and are most commonly violent in form. 

Looking into the definitions we can easily find out that each and every definition consists of words like force, assaults, physical violence, and each characterizes the absence of intention. Provided with these many clues, any layman can say that these words when connected with sex are no less than rape. When it is too clear and transparent that the wife is subjected to force in order to surrender herself and give up on her will and consent than there should be no problem with those sitting on helm enacting a law which makes this forced intercourse, taking away the bodily autonomy from a woman and abridging her will and consent, a punishable offence.

It is said that “A good husband makes a good wife”[13], but we Indians have taken it a bit differently, making it ‘a good wife is the one who satisfies her husband all the times he wanted, and then call it as his love’ and a good husband is someone who can show his masculinity over his own better-half. The biggest irony in the law of India is that there are laws against stalking[14], voyeurism[15], post-marital harassment regarding dowry but the same law books don’t channelizes marital rape as a crime. These law books talks about modesty[16] of a women and imprison who either assaults or uses criminal force or by word, gesture or act intended to insult the women and outrage her modesty, but there is no talking done on the topic where a woman’s actual modesty, her self-respect and her autonomy over own body vanishes. She just becomes a sex toy for her husband, who comes home and rapes her, releasing all his frustration on his wife by way of domestic violence and physical torture which in itself encloses marital rape. Rape is defined by Section 375 of IPC, however the definitions given are self-contradictory, in which on one side from clauses one to six either talks about will or consent of women, there is no reference of the aforementioned words when it comes to sexual intercourse between spouses where female partner is not below fifteen years and is called as an exception. If we go by the basic definition of rape and consider the case of marital rape at the same time, there lies no scope of sidelining the latter from the ambit of the former. In cases of marital rape, no one but the woman, the victim knows whether it was a rape or not, and thus it is necessary to get this offence registered as rape.

Need for criminalisation

Sexual autonomy i.e. right to engage oneself in a physical relationship with another is a basic human right and also comes under right to privacy, which is a fundamental right[17]. Thus there shall be some punishment when one’s right has been violated.  Non-criminalization of marital rape leads to violation of Article 14 (right to equality) and Article 21 (right to life) of the Indian Constitution. It also breaches Article 19(1)(a) (right to freedom of speech and expression) and Article 15 (right to no discrimination on the ground of gender) of the Constitution of India. In State of Maharashtra v. Madhkar Narayan[18] Supreme Court held that every woman was entitled to sexual privacy and it was not open to for any and every person to violate her privacy as an when he wished or pleased. There is no implied consent to sexual relations upon whims and fancies of the husband. The right to sexual intercourse is not a husband’s inherent right in the marriage, for such a right defeats the very concept of equality and human dignity. 

This voice against marital rape is not a totally new phenomenon, but it has resided in India for a greater amount of time, though under different names. There was a lot of hues and cry over the death of Phulmonee Dassee after being raped by her husband, which ultimately was a case of marital rape (Though the husband was not convicted of rape and only for causing grievous hurt by act endangering life or personal safety of others)[19]. The widespread outrage that followed led to then Viceroy, Lord Lansdowne, presenting the Age of Consent Bill, that raised the age in the exception clause to 12 years. Thereafter a revision, to 15 years, took place back in 1949, in response to agitations by women groups against early pregnancies.[20] In the almost 70 years since, the rape law marital exemption in Section 375 has remained untouched, only to a recent change made via a case-law[21], which held that husband having sex with his wife aged between 15 and 18 years would constitute as rape and not an exception. Definitions of marriage kept changing with time, but there were no changes made as to the criminalization of marital rape. 

Lord Keith, speaking for the Court, declared, “Marriage is in modern times regarded as a partnership of equals and no longer one in which the wife must be the subservient chattel of the husband.”[22] In this case law it was observed that the husband could be charged as a principal offender in the rape of his wife; however, the decision has never been followed in India.

Nevertheless, if marital rape is a rape behind the doors under the name of marriage, there must be some laws relating to the same which might safeguard not only the rights of a woman but also to protect the sanctity of marriage. Marital rape is so destructive because it betrays the fundamental basis of the marital relationship and questions every understanding one has not only for partner and marriage but to herself also.[23] So what all is needed is some laws against it, and greater than that is a voice against this practice. No crime shall go unreported and marital rape is no less than a crime. It is believed that women in India are 40% more likely to experience rape from their husband than by a stranger.[24] According to a 2018 National Family Health Survey, more than 80 per cent of married women who have experienced sexual violence named their current spouse as the perpetrator. In a 2014 survey of more than 9,200 men across seven Indian states, one-third admitted to having forced a sexual act on their wives[25]. Nevertheless, marital rape is illegal in 18 American States, 3 Australian States, New Zealand, Canada, Israel, France, Sweden, Denmark, Norway, the Soviet Union, Poland and Czechoslovakia.[26] It has been made illegal by many other countries (around 52 countries have explicitly made it a criminal act).

Being raped by a known person such as any of family members is much more traumatic and harsh as compared to strangers. According to the United Nations Population Fund, 75% of married women in India are subjected to marital rape[27]. This speaks the pathetic condition an Indian woman suffers from. The only remedy the victimized women are left with is Section 498A of the Indian Penal Code which talks about cruelty on a woman by husband and relative and Section 354 dealing with sexual harassment. In worse cases, she can opt for Domestic Violence Legislations. A woman has always been treated as a marginalized class; however recent developments have shown that there is a scope of their upliftment. 

In a report submitted by Justice Verma Committee[28] it was categorically stated that the exception to marital rape should be removed. In one of the recent landmark judgment of Independent Thought v. Union of India and Anr[29]., Supreme Court of India passed a judgment regarding marital rape, where it was held that husband having sex with his wife aged between 15 and 18 years would constitute as rape and not an exception. However, this judgment came only for a particular age group and not for the victims as a whole. It was clearly argued by the Petitioner that it has no concern with wives whose age is above eighteen. However when we look up to the case of Sakshi v. Union of India[30], it was argued by the NGO that where a husband causes some physical injury to his wife, he is punishable under the appropriate offence and the fact that he is the husband of the victim is not an extenuating circumstance recognized by law. Therefore, there is no reason why a concession should be made in the matter of an offence of rape/sexual assault only because the wife happens to be above any particular age.

One of the most interesting views on spousal rape has recently been made by Justice J.B. Pardiwala, who while listening to the case of Nimeshbhai Bharatbhai Desai v. State Of Gujarat[31] showed utter dismay to the limitations of the penal law. He was of the view that the total statutory abolition of the marital rape is the first necessary step in teaching societies that dehumanised treatment of women will not be tolerated and that the marital rape is not a husband’s privilege, but rather a violent act and an injustice that must be criminalized. He advocated for equal rights to women irrespective of their marital status and observed that the only way to remove the destructive attitudes that promote marital rape is to criminalize it. 

These statements have indeed come as a great support for Indian women, but it is the only who can get the people at helm change their attitude and force them to make a change in law also. A lot has to be done in order to get those denied rights to Indian women and they only are needed to be the pioneers.

SUGGESTIONS AND CONCLUSION

As per Susan B. Anthony, an American women’s rights activist, “The day will come when men will recognize woman as his peer, not only at the fireside but in councils of the nation. Then, and not until then, will there be the perfect comradeship, the ideal union between the sexes that shall result in the highest development of the race.”[32]  

The most basic thing needed to be done is to teach both men and women that they are equal to each other and none is superior to another. A moral, as well as legal support, is needed for women to get to that position where they deserve to be in. They shall be taught of raising voice against the atrocities happening over them, and marital rape is one such atrocity. Marital rape is a rape, so why two yardsticks to measure a single crime with the same effect to the victim? Indian law book on one side gives punishment to those strangers who rapes a girl but acquits or punishes for different pity offences (when compared to rape), the same person when he is married to the victim. The wife’s body is unqualifiedly her own and she is not bound to yield her body until she feels that she can do so with the full tide of willingness and affection. However in Indian society, a woman is taught that after marriage, it is the husband who owns her; she is treated not as a human being, but as a thing, an object which has been handed over to the sole proprietorship of the husband by her family. She is never allowed to walk out of marriage by society just because she was being raped by her husband on a daily basis after the marriage.

In the case of Petitions filed before the Delhi High Court seeking criminalisation of marital rape, one of the three petitioners, an individual who herself was a victim of marital rape, said that she was advised by her own family members to ignore the fact that her husband raped her and not to speak against it; moreover she was threatened by her own brother of being secluded from her family if she walks out of the marriage. However, she did and the family severed all ties with her.[33] This is what a case of marital rape does; it destroys the whole of the family and the person who gets punishment is the victim herself. The actual accused roams freely. The grass-root problem of this big issue is that it has been accepted that marriage is unchallengeable and is of godly nature, and a female counterpart is an object, who is obliged to worship the husband’s every whim and fancy irrespective of its nature. However, it is not the true definition of marriage. It is supposed to thrive in mutual respect and trust, both being placed on an equal footing and neither high nor low, neither the dominant nor the oppressed. 

Thus the need of the hour is to criminalize this evil present in the society. Enough of talking, raising voice against it, uniting as women leaving behind the identity of mother or sister and a strict law is all that needed to curb out marital rape. It is the women who will have to come forward joining hands with each other and fight for their rights. Forced marital sex should be brought within the ambit of rape under Section 375 of IPC. A marital or other relationship between the perpetrator and the victim should not be taken as a valid defence nor should it be regarded as a mitigating factor justifying a lower sentence of rape. Nevertheless, society needs to discuss this problem and they need to teach and support their daughters to raise a voice when she feels suppressed. There must be enough awareness so that neither poverty nor illiteracy becomes an obstacle in the path of criminalizing this anti-ethical practice. 

Endnotes

[1] State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600

[2] K. D. Baddett, Doctrinal Insights to the Book of Mormon, 21 (1^st Vol., 2007)

[3] Kailash Chand v. Dharam Pass, (2005) 5 SCC 375; M.C. Mehta v. Union of India, (1987) 1 SCC 395; C.I.T. v. Minal Rameshchandra, 1987 167 ITR 507 Guj.

[4] D.L. Pope, Who’s Changing the Meaning? (2017).

[5] Tej Kumar Siwakoti, Social, Political, and Economic aspects of Sikkim during pre and post merger Period, 157 (1^st ed., 2017).

[6] Soibam Rocky Singh, Criminalising marital rape ‘may destabilise institution of marriage’: Centre tells Delhi HC, Hindustan Times (29/08/2017), available at https://www.hindustantimes.com/india-news/criminalising-marital-rape-may-destabilise-institution-of-marriage-centre-tells-delhi-hc/story-gmt8sh4eAAoc2w2kvOSHkJ.html., last seen on 05/07/2019

[7] Susan Brown miller, Against Our Will: Men, Women and Rape, 18 (1993).

[8] State of UP v. Chottey Lal, (2011) 2 SCC 550

[9] Paras Diwan, Peeyushi Diwan & Shailendra Jain, Dr. Paras Diwan on Hindu Law, 547 (2nd ed., 2005)

[10] Paul Finkelman, The Encyclopedia of American Civil Liberties: A – F, 961 (1^st Vol., 2006).

[11] State v. Vikash, SC No.1/14 (Special Fast Track Court, Dwarka Courts, New Delhi, 07/05/2014)

[12] D.K. Gosselin., Heavy Hands – An Introduction to the Crimes of Domestic Violence, (1st ed., 2000)

[13] Robby Sherwin, A good husband, Counter Punch, available at https://www.counterpunch.org/2015/09/14/a-good-husband-makes-a-good-wife-how-the-supremes-saved-marriage-and-didnt-even-know-it/, last seen on 21/10/19

[14] S. 354D, Indian Penal Code, 1860.

[15] S. 354C, Indian Penal Code, 1860.

[16] S.509 and S. 354, Indian Penal Code, 1860

[17] K.S. Puttaswamy v. Union of India, AIR 2017 SC 4161

[18] AIR 1991 SC 207

[19] Queen Empress v. Haree Mohan Mythee, (1890) 18 Cal 49

[20] Shalini Nair, Meet Anam- One of the three petitioners seeking criminalisation of marital rape, The Indian Express (17/09/2017), available at https://indianexpress.com/article/india/meet-anam-marital-rape-survivor-criminal-offence-delhi-high-court-4847094/, last seen on 04/11/2019

[21] Independent Thought v. Union of India, AIR 2017 SC 4904.

[22] R. v R. [1991] UKHL 12

[23] Meghna Baveja, Marital Rapes: A crime less acknowleged, The Viewspaper, available at http://theviewspaper.net/marital-rapes-a-crime-less-acknowledged/, last seen on 04/10/2019.

[24] Sonal Singh, Dear Supreme Court, Here’s Why Marital Rape Should Be Criminalised, The Better India, available at https://www.thebetterindia.com/123017/supreme-court-criminalise-marital-rape-laws-india/, last seen on 05/10/19.

[25] Dominique Mosbergen, Marital Rape Is Not A Crime In India. But One High Court Judge Is Pushing For Change, HUFFPOST, available at https://www.huffingtonpost.in/2018/04/05/marital-rape-is-not-a-crime-in-india-but-one-high-court-judge-is-pushing-for-change_a_23404061/, last seen on 05/10/19

[26] S. Shankar Mishra, Marital Rape is Not a Rape?, Just In Print, available at  http://justinprint.in/marital-rape-not-rape/, last seen on 05/10/2019.

[27] Press Trust of India, Marriage sacred in India, so marital rape cannot be applied: Centre, The Indian Express (30/04/2015), available at https://indianexpress.com/article/india/india-others/concept-of-marital-rape-cannot-be-applied-in-india-govt/, last seen on 06/10/19

[28] Notification No. SO (3003)E, Government of India, Report of the Committee on Amendments to Criminal Law, available at http://www.prsindia.org/uploads/media/Justice%20verma%20committee/js%20verma%20committe%

20report.pdf, last seen on 06/10/2019

[29] AIR 2017 SC 4904.

[30] AIR 2004 SC 3566

[31] R/Criminal Misc. Application Nos. 26957, 24342 of 2017 and R/Special Criminal Application No. 7083 of 2017 (The High Court of Gujarat, 02/04/2018)

[32] Lynnette D. Madsen , Successful Women Ceramic and Glass Scientists and Engineers: 100 Inspirational Profiles, 546 (2016).

[33] Supra 20.

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 Criminalizing Marital Rape- An Inaccessible Part Of Indian Justice System appeared first on iPleaders.

This article is written by Shubhangi Sharma, a 5th-year student of BA LLB in Lloyd Law College, Greater Noida. The article discusses Geographic Indication law in India.

What is Geographic Indication?

A geographical indication is a sign used on products that has a specific geographic origin and includes the qualities or reputation of that origin. A geographical indication is given mainly to agricultural, natural, manufactured, handicraft arising from a certain geographical area. Geographical indications (G.I.) are one of the forms of IPR which identifies a good as originating in the respective territory of the country, or a region or locality in that particular territory, where a given quality, reputation or other characteristic related to good is essentially attributable to its geographical origin. 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 to the origin of a particular 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;
• 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.

G.I. is a kind of sign used for goods that have a specific geographical origin and possess qualities or a reputation that are due to that particular place of origin. Basmati rice and Darjeeling tea are examples of G.I. from India. Article 22 of the TRIPS Agreements define a geographical indication as “signs that originate in a member or identify a good location in an area or locality where a given quality, reputation, or speciality is assigned to its geographical location Is given Is essentially acceptable”.

As a result, India was implemented in 1999 when the TRIPS Agreement was incorporated as a member state of the Sui-Genis law for the protection of geographical Indication. The object of the Geographical Indicators Goods (Registration and Protection) Act, 1999, has three folds:

• By specific laws governing the geographical Indication of goods in the country, which can adequately protect the interests of the producers of such goods,
• To exclude unauthorized persons from misuse of geographical signals and protect consumers from fraud, and
• Promoting Indian geographical bearing goods in the export market.

A registered geographic sign prohibits in any way the use of a geographical insignia which indicates in the designation or representation of goods that such goods originate in a geographic area. For example, Basmati rice and Darjeeling tea are examples of G.I. from India. The connection between the goods and place becomes so much recognized that any reference to the place reminds those specific goods being produced there and vice-versa.  Some of the Examples of Indian geographical indications which are registered in India are:

• Basmati rice
• Darjeeling tea
• Banaras Brocades and Sarees
• Coorg orange
• Phulkari 
• Kolhapuri chappals
• Kangivaram sarees
• Agra Petha

History of Geographical Indication

Governments are protecting trade names and trademarks used in context to food products identified from a particular region, which until the late nineteenth century, laws were used or passed against inaccurate trade descriptions, which Usually protect against suggestions that have a certain origin, quality, of the product. , or association when it does not. In such cases, the competitive freedom that arises from the grant of a monopoly of use on a geographic indication is justified by governments for consumer protection benefits or producer protection benefits.

One of the first G.I. systems used in France since the early part of the twentieth century is known as the Appellate d’Orgine Controloli (AOC). Items which meet geographic origin and quality standards can be approved with a stamp of government that serves as the official certification of the product’s origin and standards to the consumer. Examples of products that have such ‘appellation of origin’ include Gruyère cheese (from Switzerland) and several French wines.

Among the major developing economies, India has a quick and efficient G I tagging mechanism.

Geographical indications have been associated strongly with the concept of Terrero and as a unit with Europe, where there is an existence of a tradition of linking certain food products with particular regions and its origin. India has put in place a Sui Generis system of legislation for G.I. security as well as G.I. protection in particular. “Sui Generis” can be termed as of its own kind and which involves laws which are recognized nationally. The laws relating to the preservation of G.I.s in India are the ‘Geographical Indications (Registration and Protection) Act, 1999’ (G.I. Act), and the ‘Geographical Indications (Registration and Protection of Goods) Rules, 2002 (G.I. Rules). India enacted its G.I. law for the country to enforce national intellectual property laws in compliance with India’s obligations under TRIPS. Under the G.I. Act, under the G.I. Act, since 15 September 2003, the Central Government has established a Geographical Indication Registry in Chennai, with the jurisdiction of Pan-India, where rights holders can register their G.I.

What role does WIPO play in protecting G.I?

The Uruguay Round of GATT negotiations began in 1986, at the same time as India’s development policy-making process was in a watershed. As a paradigm shift in its policy by the time India launched its large-scale economic reform package in 1991, the Uruguay Round of negotiations were going well, paving the way for Margakesh in 1994 and world trade. Organization established. The NDA remained cautious and somewhat dysfunctional player during the early years of the Uruguay Round of negotiations, given its longstanding legacy of growth strategy and inward protectionist trade policy.

However, in Doha, India wanted to patronize other products beyond wine and spirits under the Doha Geographical Indication (G.I.).Many countries wanted this high level of security to be seen as a negotiation for other products, as they see a higher level of security to improve their products by separating their products from their competitors more effectively and They are “belittling” other countries. Conditions. Some others opposed the move, and the debate includes the question of whether the Doha Declaration provides a mandate for negotiations. Those opposing the expansion argue that the current (Article 22) level of protection is sufficient. They warn that providing augmented security will be a burden and disrupt existing legitimate marketing practices. India, along with a host of other similar countries, pressed ‘expand the scope of Article 23’ to cover all categories of goods. However, countries such as the United States, Australia, New Zealand, Canada, Argentina, Chile, Guatemala and Uruguay are strongly opposed to any ‘expansion’. The ‘expansion’ issue formed an integral part of the Doha Work Program (2001). However, as a result of the wide divergence of views among members of the World Trade Organization, there has not been much progress in negotiations, and implementation remains an ‘outstanding implementation issue’.

Need for Geographical indications

Given its commercial potential, G.I.’s legal protection assumes great importance. Without proper legal protection, competitors who have no legitimate authority over the G.I. can ride free on its reputation. Such unfair trade practices lead to loss of revenue for G.I. right holders and also confuse consumers. Furthermore, such practices may ultimately disrupt the goodwill and reputation associated with a geographical indication.

What is a “generic” geographical indication?

If a geographical term is used as a designation of a type of product rather than an indication of the place of origin of that product, the term does not serve as a geographical indication. Where a certain country has occurred at a certain time, that country may feel that consumers have understood a geographical term that once stood for the origin of the product.

Benefits of Geographical Indications

The organizations or companies who register their geographical indications enjoy various advantages from the registration, including:

1. Registered geographical indications have the exclusive right to access or use G.I.’s products during the business.
2. AuthorizedAuthorized users enjoy the right to sue for infringement.
3. It provides legal protection to geographical signs in India.
4. Prevents unauthorized use of registered geographical indications by others.
5. It provides legal protection to Indian geographical signals which in turn promotes exports.
6. It promotes the economic prosperity of producers of goods produced in a geographical area.
7. A registered owner can also approach for legal protection in other WTO member countries.
8. It provides legal protection to the respective goods in domestic as well as in international markets.

What are the subject matters which are not registrable under geographical Indication?

For getting registration, the indications should fall within the purview of Section 2(1) of Geographical Indication Act, 1999. When this happens, it must also meet the provisions of Section 9, which prohibits the registration of a geographical indication.

• The use of which would cause confusion or confusion; or
• The use of which shall be contrary to the time of enactment of any law; or
• Which includes or is libellous or indecent matter; or
• Which is likely to involve or cause force injury at any time; Religious sensitivity of any class or class of citizens of India; or
• Which would otherwise be destroyed for protection in a court; or
• Those determined to indicate common names or objects and, therefore, to be preserved in their country of origin or which are not in use in that country; or
• However, this is actually true as the area or locality in which the goods originate but misrepresents the individuals that the goods originate in another area, region or locality as the case may be. 

Rights granted to the holders

• Right to sue: The exclusive rights have been granted to the person who is protected under geographical indication act and, therefore, can be inherited, gifted, sold, licensed, entrusted or mortgaged. The holder of geographical Indication has a type of property that he can use subject to certain conditions and take legal action against a person who uses his invention without his consent. Does and can receive compensation against real property.
• The right to grant license others: The holder has the right to transfer a license or grant license or enter into any other arrangement for consideration regarding their product. A license or assignment must be given in writing and registered with the Registrar of geographic indications, for it to be valid and legitimate. 
• Right to exploit: Authorize user exclusive right to use geographic Indication with respect to geographic goods for which the geographic Indication is registered.
• Right to get reliefs: Registered Proprietors and authorized Users or Users have the Rights to obtain relief in relation to the violation of such geographical Indication.

Who can apply for geographical indication registration?

Any person, manufacturer, organization or authority established by or under the law may apply for the registration of Geographical Indication of their product.

1.  The respective Applicant should represent the interest of producers.
2.  The Application should be in the prescribed form in writing, which mentions each and every detail about the product.
3. The Application should be addressed to the Registrar of Geographical Indicators along with the prescribed fee for the registration of the product.

Whom to apply? 

The Application must be submitted to the Registrar under the Act, the Controller of Patents, Designs and Trademarks who are appointed under sub-section (1) of section 3 of the Trademarks Act 1999 shall be the Registrar of Geographical Indications. He shall be assisted by the respective number of the officer, which are appointed by the central government as they may think fit. 

A full modern patent office and the country’s first geographical indication (G.I.) registry in Chennai which is really a good step in this field. The Registry will further supplement this by meeting the requirements outlined in the Act. Every application should be filed in Office Registry of Geographical Indication within the territorial boundaries of the country or region or locality in the country where the geographical indications is situated. 

Whom to consider an authorized user?

The authorized user is:

• The manufacturer of the goods can apply for registration as an authorized user.
• It must be in relation to a registered geographical indication.
• He should apply in writing with the prescribed fee.

Whom to consider as the registered proprietor of a geographical indication?

The registered proprietors of Geographical Indications are:

• A person, manufacturer, organization or association established under law or legislation may be a registered owner.
• Their name must be entered in the Register of Geographical Indicators as there are registered owners for the Geographical Indication.

Registration process of Geographical Indications

Step 1: Application filing

Please check if the Indication falls within the definition of Section 2(1)(e) of Gl Act.

The association of individuals or producers or any association or authority should represent the interest of the producers of the goods concerned and file an affidavit as to how the Applicant claims to represent their respective interests.

• Applications must be made in triplicate.
• The Application must be signed by the Applicant or his agent and must be accompanied by a description of the case.
• Describe the special features and how those standards are maintained.
• Three certified copies of GI-related field maps.
• Description of the inspection structure if there is an area for regulating the use of G.I.
• Provide details of all applicants with the address. If there are a large number of manufacturers, then collective reference applications for all producers of goods and G.I. should be made. If registered, it should be indicated accordingly in the register. The Application must be sent in a respective address in India.

Step 2 and 3: Preliminary Examination and Examination

• The examiner will check the Application for any deficiencies.
• The Applicant should take measures in this regard within one month of communication.
• The content of the case description is evaluated by an advisory group of experts who will master the subject.
• Furnished will ascertain the correctness of the description.
• After that, an examination report will be issued.

Step 4: Show cause notice

• If the Registrar has any objection to the Application, he shall file such objection.
• Applicant must reply within two months or apply for a hearing.
• The decision will be duly communicated. If the Applicant wants to appeal, he can request it within a month.
• The RegistrarRegistrar also has the right to withdraw an application, if it is mistakenly accepted, after giving it on the occasion of a hearing.

Step 5: Publication in Geographical Indication Journal

Every Application, within three months of acceptance, will be published in the Geographical Indications Journal.

Step 6: Resist Registration

• Any person opposing the G.I. application, published in the journal, can file a notice of protest within three months (another month upon request which is to be filed before three months).
• The RegistrarRegistrar will provide a copy of the notice to the Applicant.
• Within two months, the Applicant will send a copy of the counter statement.
• If he does not do so, he is believed to have dropped his Application. Where a counter-claim has been filed, the RegistrarRegistrar will serve a copy on the person giving notice of the protest.
• Thereafter, both parties will lead their respective evidence through affidavits and supporting documents.
• After this, the date of hearing of the case will be fixed.

Step 7: Registration of Application

• Where an application for G.I. has been accepted, the RegistrarRegistrar will register the Geographical Indication. If the date of filing the Application after being registered will be considered as the date of registration.
• The RegistrarRegistrar will issue a certificate to the Applicant with the seal of the Geographical Indicators Registry.

Step 8: Renewal of Application

A registered G.I. will be valid for 10 years and can be renewed on payment of a renewal fee.

Step 9: Additional Security for Notified Goods

An application can be made to the RegistrarRegistrar for respective goods which are notified by the Central Government for additional protection for the registration of geographical Indication in Form GI-9, there will be three copies of the case details and three copies of issued notification.

The Application will be made jointly by the registered owner of Geographical Indication in India and jointly by all the producers of Geographical Indication.

Step 10: Appeal

Any person who is aggrieved by an order or decision which may prefer an appeal to the Intellectual Property Appellate Board (IPAB) within three months. 

Infringement of geographical Indication

A registered geographical indication is violated by a person who is not a registered proprietor or authorized user, uses such a sign on the goods or suggests that such goods originate in another geographic area, which confuses someone other than the actual place of goods public. A geographical indication of the trademark also infringes upon any use that constitutes an act of “unfair competition”, detailed explanation of 1 and 2 of Section 2(b). This provision seeks to give effect to Article 22(2)(b) of the TRIPS Agreement, which requires members to “provide legal means for interested parties to prevent any use that the Article 10bis of the Paris Convention (1967). A geographical indication is also violated by a person who is not a registered proprietor or authorized user, who uses another geographical indication for the goods, which is actually true as to region, or locality from where the goods originated and publicly misrepresentation that goods originate in a region, or a locality to which such registered geographical indicators belong.

Article 22 (4) of the TRIPS Agreement states that the preservation of the geographical Indication of a trademark must be enforced even if the G.I. “is truly true as to the area, region, or locality in which the goods are in another territory” is generated “.

Remedies for infringement of Geographical Indications

Remedies relating to infringement of geographical indications are similar to remedies related to trademark infringement. Similarly, under the (Indian) Geographical Indicators Goods (Registration and Protection) Act, 1999, falsification of a geographical indication. Remedies which are available for conservation of geographical indications may be broadly classified into two categories:

(i) Civil remedies

• Injunction

Injunctions include temporary injunction and permanent injunction. An injunction is granted for the protection of violations of related items, documents or other evidence in respect of the subject of the suit. An injunction is granted for restricting the defendant from disposing of or dealing with his products which may adversely affect plaintiffs’ ability to recover damages, costs or other pecuniary remedies which may be finally awarded to the plaintiff as compensation of damage. The aforesaid remedy of injunction is more effective and can prevent greater harm to the plaintiff. Or other peculiar remedies that may eventually be given to the plaintiff.

•  Damages 

The remedy of damages or account of profits in the form of compensatory damages is available to prevent infringers from infringement. Damages (other than nominal losses) or accounts of profits may be ruled out Where the defendant satisfied the court that he was unaware and there was no reasonable basis for that Assuming that the plaintiff’s geographical Indication was registered when he was engaged in using it; And when he became aware of the existence and nature of the geographical Indication, he stopped using it.

•  Delivery of the infringing labels and indications containing products

It is in the court’s discretion to order the infringer to deliver up infringing labels and indications for destroying.by taking relevant circumstances into consideration the court may or may not order for such remedy. All the mentioned remedies are also available for the action of passing off. The actions of Passing off are initiated against the infringement of unregistered geographical indications.

(ii) Criminal Treatment.

Criminal remedies are more effective as compared to civil remedies because the former can be disposed of quickly. Pendency of civil suits does not justify a stay of the criminal proceedings which involve the same question. Since criminal proceedings directly attacking the violator’s honour and social status In some cases he comes forward for the Settlement of the matter out of court to save their reputation. Chapter VIII of the Act deals with offences and punishment for such crimes. The Act has penal provisions for violation of various provisions related to Geographical indications which are discussed below:

• Falsifying and incorrectly applying geographical indications to the goods.
• Selling goods to which false geographical indications apply.
• Misrepresentation of a geographical indication in registered form.
• Improperly describes a place of geographically connected business indication Registry.
• Falsification of entries in the register.

The punishment granted for the infringement offences varies from six months to three years imprisonment and a fine of not less than rupees fifty thousand but may extend to rupees two lakh. However, the court for adequate and special reasons in writing may grant lesser punishment. 

Cases

Banganapalle Mango

‘King of Fruits’ means mangoes from Banganapalle received G.I. tag in the year 2017. The government-fixed logo features a yellow-coloured shiny fruit around which the tagline says “Banglapple Mango from Andhra Pradesh,” showing farmers with images of a man and a woman. From now on anyone has to apply to become the first authorized user to sell or produce and this will require a No Objection Certificate (NOC) from the Commissioner of Horticulture Development Agency, Government of Andhra Pradesh, Department of Horticulture.

The fruit is also known by many types of sages such as Beneshan, Banahan, Benishan, Chapati, Safeda, Banganapalli, Banginapalli, Banganapalle, etc. The main attraction of the fruit is that it can maintain its quality in cold storage for three months. Documents submitted to the Registry stated that ‘the prominent feature of Banganapel mangoes is that they have very light spots on their skin, stones are diagonal in shape and have very thin seeds, which have sparse and soft fibres. 

The government also called the original centre of Kurnool district, which includes Nandyal Mandal in Banganapalle, Penam and Telangana and Khammam, Mahbubnagar, Rangareddy, Medak, Adilabad districts. According to an affidavit furnished in 2011, the then Commissioner of Andhra Pradesh, Rani Kumudini said that about 7,68,250 families were involved in the production of Banganapalle mangoes. An estimated 24.35 lakh metric tons of mangoes were grown every year in Andhra Pradesh, and around 5,500 tons of Banganpal mangoes were exported annually to countries like the U.S., U.K., Japan and the Gulf countries.

Banglar Rasogolla v. Odisha Rasagola

In November 2017, the West Bengal State Food Processing and Horticulture Development Corporation Limited registered G.I. as Ras Banglar Rasogola. It was reported that Bengal won the dormant war between Odisha and Bengal, which would own the famous dessert. The legal battle for G.I. registration started when objections to G.I. registration were lodged, and it was said that this famous dessert originated at Jagannath temple in Puri, Odisha. An application to remove the registration of G.I. status was filed on February 2018. Meanwhile, G.I. Registry in July notified that Odisha registered G.I. as ‘Odisha Rasgola’, after which several reports were released. Odisha did not give up in the race but won one. It is very important to note that the G.I. The registry has not registered the word all Rasogola / Rasgola ‘. It has prefixed two words specifically for G.I. tag, one is ‘Banglar’, and the other is ‘Odisha’. To say that ‘rasogola / rasgola’ is a general term, which any person can use in his trade and business. Thus, as far as the law is concerned, neither of the two states has got a monopoly on the word ‘Rasogola / Rasola’. Therefore, it is free to sell sweets to anyone in the trade as Rasgulla / Rasgola or any other synonym. What is prohibited is the use of the words “Odisha rasgola” and “Benglar rosogola” by anyone other than authorized users ‘under the law.

Conclusion

From the above case, we can conclude that a registered G.I. tag prohibits the holder from using the registered mark of G.I. or its name in any product which is similar to or misleading the registered product. It is possible. It may not be the same as a registered product, but it may have a registered name. Since the adoption of the TRIPS Agreement, there has been increased awareness of the need for adequate protection of geographic signals for all products. In addition, the negotiations by the World Trade Organization in the field of industrial and agricultural products demonstrate the increasing importance of increasing the level of conservation of geographical signals for wines and spirits for all products. Nations have to understand the fact that protection for G.I.s is best provided under national laws because it is not the provisions of the treaty but the actual national laws that provide protection in relation to G.I.s. Such protection is an invaluable marketing tool and an added value for exports because it increases the likelihood of market access for such goods. The G.I. tag is an essential component for creating and maintaining abstracts and originality of the product of certain essentials and characteristics. India is not far behind to legally pursue this aspect of intellectual property.

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 Rishi Khemani & Zeb Hasan, Fourth-year student of School of Law (SOL) University of Petroleum & Energy Studies, Dehradun.

Introduction

The principles of humanity require that all humans be treated humanely. It is our shared humanity that both inspires and requires us to help others. It is the primary responsibility of each and every state to protect its people. Human lives should be saved and their sufferings alleviated with dignity and respect.^[1]  The principle of humanity requires its adherents ‘to prevent and alleviate human suffering wherever it may be found. Its purpose is to protect life and health and to ensure respect for humankind.^[2] There are serious violations of human rights and this can be due to gross violation of human rights, civil war, internal strife, war with another state or country etc. Some of the times, the situation is so bad that people have to leave their homes along with the families and they have to move into another state in order to get proper survival.^[3] This is the way they became refugees in that state.

The recent developments and the events taken place in Africa, the Middle East, the Balkans and the further challenges which they pose to the interpretation of the international law and the obligation of the states in order to protect the people leaving in their territory, which has given rise to large no. of concerns, For example, the international community of states and civil society organizations, and in particular the United Nations (UN), was severely criticized for inaction in the face of the atrocities that took place during the 1994 genocide in Rwanda^[4]. In today’s era the problems of the Refugees is of international character as it involves the two or more states in a way that people flee from one country to another or one state to another. The purpose of this paper is to throw light upon working of these international agencies, the reasons of their current failure and possible solutions that can be looked into.

Statistics as per the Statistical Yearbook of UNHCR:

UNHCR Convention1951

The UNHCR convention is the right as well as status based which is pinned by the no. of fundamental principles. The convention was drawn up in the parallel with the creation of the UNHCR. This convention lays down the basic minimum needs for the protection of the refugees. The rights include the primary education, access to the courts and other basic needs. The core principle of this convention is non-refoulement i.e. the refugees shall not return to the country where there is a serious threat to his/her life or he/she may expose to the persecution. It is encompassed in Article 21 of the Constitution, so long as the presence of the refugee is not prejudicial to the law and order and security of India. All member nations of the United Nation including our country are expected to respect for international treaties and conventions concerning Humanitarian law.^[5] UNHCR serves as the ‘guardian’ of the 1951 convention and its 1967 Protocols.^[6]    In spite of the high amount of refugees problem, India has not signed the UNHCR convention of 1951 and it’s 1967 protocol but ratified the Universal Declaration of the Human Rights 1948 i.e. Article 14. In Louis Deraedt v. Union of India^[7] the Supreme Court of India held that even a foreigner has fundamental right but that is only confined to Article 21 for the life and liberty and does not include right to freely move throughout India and to reside and stay in any part of this country as mentioned in Article 19(1)(d) and (e) which is applicable only to the citizens of the country.         

UNHCR Protocol 1967    

The 1967 protocol of UNHCR provides the applicability of the 1951 convention. It is the type of the amendment as 1967 protocols removed the time limits and geographical limits which were the part of 1951 convention. In hand to hand refugees have also an obligation to abide by the laws of their respective country and the measures taken in order to maintain public order.

Current Situation

According to UNHCR, the Middle East and North Africa host a fifth of the world’s refugees, excluding the considerable and growing population of Palestinian refugees.^[8] In the past era, Israel has recognized as asylum seekers and the group of refugees as the gesture of the goodwill. The Protection of the Refugees is the key concept and main focus of the UNHRC, safeguarding and protecting the rights of the people which is engrained in the 1951 Refugee Convention.

UNHRC Standard for Selected Indicator: Legal Protection^[9]

In the year 2016, the number of people displaced has already surpassed sixty million- more than a number of people displaced by the end of World War II. Since the uprising movement in Syria in 2011, Syria has been the major reason for a spike in refugee. It has caused millions to flee their homes and settle in Europe.^[10]

With the disturbances caused by millions of displaced people, the world leaders, humanitarian organizations are left clueless. These specialized humanitarian organizations in their constitution have envisaged provisions for the protection of displaced persons; however, there is no mechanism to enforce it.^[11] However, the definition of protection here has been changed to just providing means of living; food, water, shelter etc. With the increasing number of displaced persons every day, the asylum systems are strained and states are tightening their borders.

Click Above

Statistics

Going by the statistical yearbook of United Nations High Commissioner for Refugees it is facing the highest levels of displacements on record. About 65.5 million people have been forced out of their home countries, amongst them are 22.5 million refugees, and half of them are below 18 years of age.^[12] Also, about 10 million people are stateless and have been denied nationality; such people have been deprived of basic human rights, such as Right to education, employment and healthcare.^[13] If the goal of humanitarian law is to provide for the need of people who are suffering due to natural calamities or manmade hardships then currently it is failing in achieving the ends of its goals.

Currently, the UN humanitarian agencies are on the verge of becoming bankrupt and are facing a hard time in meeting the basic needs of millions of people, due to the size of refugee crisis.

Where They Fail

The major and only job of humanitarian organizations is to provide for lifesaving assistance. Providing for life-saving assistance means providing for the basic needs of humans. But the pertinent question is how reasonable is it to expect one organization to do everything from providing means of lifesaving assistance to looking for asylums in different countries when the number of humans displaced/ finding refuge is a whopping 60 million? There is a huge gap between demand and resources. The international humanitarian system is overstretched and hence unable to respond adequately. The gap between this demand and its resources is complex in nature; it is a consequence of more conflicts, extremism, disaster and displacement. The traditional function of humanitarian aids is to provide lifesaving assistance- which means to reach the area of the problem, fix the immediate problem and leave. This is not to discourage the humanitarian organizations, but there is a need for making boundaries. They must not be judged for something they were not designed to do. 

REASONS FOR SUCH FAILURE

1. Protracted crisis
2. The humanitarian and development gap
3. Nations lack a separate emergency reserve fund 

Protracted Crisis

Protracted crisis are the current driver of humanitarian needs in the present era. It is very evident in the scale of time and resources spent in these situations as the proportion of ICRC’s global operations. Approximately two-thirds of ICRC’s fund has been spent in these protracted conflicts. Protracted crisis is a situation, in which a certain portion of the population is at risk of death, disease or livelihood breakdown. In 2013, 66% of the fund raised by humanitarian organizations went to the countries that had been under conflict for more than 8 years.^[14]

Protracted crisis has become a new norm of the new world with more than 40% ongoing food crisis it becomes excruciatingly hard for humanitarians and developing organizations to cope. As these crises persist, countries and communities need more effective and sustainable strategies to build their capacity against shocks and stressors.  Building resilience against shock requires innovative policies, a better understanding of structural causes, and efforts to reduce exposure to shock.  

The Humanitarian and Development Organisation Gap

The humanitarian organizations and development organizations have always been worked separately and evolved separately.^[15] Humanitarian organizations came into being as a result of emergency situations-human based or natural disasters; whereas the development world came into being due to colonialism, Pre-World War II and later changed according to the modern world. Their focus was technical assistance, health, education; the major focus was livelihood and assisting people to get out of poverty.

Conceived to address different situations, they also draw their funds from different resources. The main argument is that humanitarian organizations are not well designed for doing more than keeping people alive.^[16] This will not serve the purpose of bringing peace in the long run. We need to institutionalize the interface between the humanitarian and development sector. Partnership between the two organizations at field level and funding practice is crucial. The humanitarian sector needs to be included in development discussions in structured manner. A senior-level interaction of the humanitarian-development interface needs to be systematically put forward as appropriate at all levels. This can be achieved by inviting the United Nations Emergency Relief Coordinator to the World Bank’s Development Committee.

Nations Lack a Separate Emergency Reserve Fund

It is important for nations to realize the current need for investment in an emergency fund. Every nation needs to keep a reserve for disaster risk reduction. This way the risk will be reduced and the capacity to withstand disaster shock would improve.^[17] The Sendai Framework for disaster risk reduction 2015-2030 which was adopted at the United Nations World

Conference on Disaster Risk Reduction (DRR) re-affirmed the importance of resilience building and risk management. Implementation of the same would have direct benefits for reducing the humanitarian associated costs and needs: about 20 per cent of humanitarian financing requirements go into responding to recurring and sudden-onset natural disasters.

Even after the adoption of the aforementioned Framework by the UN, the investment into risk reduction is very low. For every US 100 dollar spent on development aid projects, only 40 per cent has gone into protecting the countries from succumbing to natural disasters. The statistics for the countries with the least capacity demonstrate the wasted opportunities: twelve out of a group of twenty-three low-income countries received less than 10 million dollars for DRR over twenty years while receiving 5.6 billion dollars in disaster response. This needs to change.^[18]

It has been proved In the 2011 triple disaster in Japan—which is the world’s most disaster prepared country— that nobody is immune from natural disasters and that even global leaders need to gear themselves up for receiving international assistance. It is a global responsibility to invest more in disaster risk reduction and to also manage risks before they become crises. Over time this will decrease the cost of disasters both in regard to human suffering and in responding to them.^[19]

The Government’s first responsibility is to take care of their own citizens when they fall prey to any disasters or other emergencies occurring in their countries. All governments need to have an emergency reserve fund and dedicate a Disaster Risk Reduction budget line for risk-reduction activities and to receive assistance when disasters hit.^[20] Humanitarian financing requirements would definitely shrink if more States took the responsibility to put in place a sustainable budget structure to fund the risk-reduction and preparedness activities, and a framework to enable and build the capacity of national responders.^[21]

Conclusion: Solution to Refugee Crisis

In his speech to United Nation General Assembly Ban Ki-Moon said – “The true measure of the success for the United Nations is not how much we promise but how much we deliver for those who need us most.”^[22] In the current scenario, where conflicts have been going on for more than a decade, it is impossible for the UN humanitarians to keep up with the promise. We are aware that certain actions depend on other global aspects as well, such as global will for transformation.^[23] It is not solely on the Humanitarian organizations to deliver the said object. Not under the current circumstances.^[24]

International organizations, government, civil sector, private society and individuals all have a role to play in this process via working together, to prepare and reduce human vulnerability to any natural or man-made disasters.^[25] Success will depend on a consensus of support for a cultural shift away from reactiveness and competition towards anticipation, research, transparency and collaboration. The depth of experience, the vision and skills are all available.

We need a collaboration of trust which is built upon a belief in our abilities and faith in a common mission to save lives and restore human dignity. More than anything we need the ‘political will’ to make this happen. World Humanitarian Summit provides for a once-in-a-generation opportunity to make investment to ensure that we have humanitarian aid systems that measure up to the challenges which this century will continue creating.

Endnotes

^[1] 1 MIRIAM BRADLEY, PROTECTION OF CIVILIANS IN WAR, 40-41 (1^st ed. 2016)

^[2] FUNDAMENTAL PRINCIPLES OF RED CROSS

^[3] V.K. Ahuja, Public International Law, p.335

^[4] http://www.unhcr.org/afr/487b619b0.pdf

^[5] Bharat B. Das, A Refugee Problem – Humanitarian Approach, 199 (1^st ed., 2005).

^[6] http://www.unhcr.org/1951-refugee-convention.html

^[7] Louis Deraedt v. Union of India AIR 1991 SC 1886

^[8] Article 1D of the 1951 Convention exclude persons who receive assistance from other UN bodies. It intentionally excludes the Palestinians who were displaced as a result of the 1948 war, and were under the auspices of the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA), an agency which was established prior to UNHCR. Palestinian refugees and their descendants are now estimated at 4.7 million (UNRWA 2009). Refugee Survey Quarterly has recently published a special issue which provides a detailed historical account of this multifaceted issue (RSQ 2009).

^[9] http://hdr.undp.org/sites/default/files/hdrp_2009_25.pdf

^[10] Figures at a glance, UNHRC, available at http://www.unhcr.org/figures-at-a-glance.html

^[11] Figures at a glance, UNHRC, available at http://www.unhcr.org/figures-at-a-glance.html

^[12] Figures at a glance, UNHRC, available at http://www.unhcr.org/figures-at-a-glance.html

^[13]Figures at a glance, UNHRC, available at http://www.unhcr.org/figures-at-a-glance.html

^[14] Global Humanitarian Assistance Rep. 2015, Devel. Initiatives, Bristol, 2015, p. 97

^[15] The humanitarian-development gap, International Committee of the Red Cross, available at https://www.icrc.org/eng/resources/documents/article/other/57jpt2.htm

^[16] http://www.unhcr.org/1951-refugee-convention.html

^[17] http://www.unhcr.org/excom/standcom/3ae68cf324/audit-follow-up-financial-management-programme-management.html

^[18] http://spanish.careemergencytoolkit.org/Assets/Files/cae7a393-d68f-46c6-bc08-cad16ba8dc61.pdf

^[19] http://reporting.unhcr.org/resources

^[20] http://www.unhcr.org/4e60a7339.pdf

^[21] http://www.unhcr.org/4e60a7339.pdf

^[22] http://spanish.careemergencytoolkit.org/Assets/Files/cae7a393-d68f-46c6-bc08-cad16ba8dc61.pdf

^[23]https://reliefweb.int/sites/reliefweb.int/files/resources/%5BHLP%20Report%5D%20Too%20important%20to%20fail%E2%80%94addressing%20the%20humanitarian%20financing%20gap.pdf

^[24] http://www.unhcr.org/55f2c7099.pdf

^[25] http://www.bundesheer.at/pdf_pool/publikationen/10_wg12_psm_130.pdf

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 Refugee Crisis: The Role of Humanitarian Organisations and Reasons for Failure 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 classification of cyber crimes, types of cyber criminals and introduction to cyber forensics.

Introduction

Cyber crimes can be various kinds and with the advancement in science and technology, new kinds of cyber threats are coming up every other day, however, attempts have been made to categorize them so that they can be dealt with accordingly. Along with this, cyber criminals can be of various kinds as well depending upon the kind of cyber crimes they commit. Further, cyber crimes have some kind of motivation behind them such as financial gain, some vendetta, ideological motivation etc. 

Classification of Cyber Crimes

The cyber crimes may be broadly classified into four groups. They are:

1. Crime against the Individuals: Crimes that are committed by the cyber criminals against an individual or a person. A few cyber crimes against individuals are:

• Harassment via electronic mails.
• Dissemination of obscene material.
• Cyber-stalking.
• Defamation.
• Indecent exposure.
• Cheating.
• Unauthorized control/access over computer system.
• Email spoofing.
• Fraud.

2. Crimes against Property: These types of crimes includes vandalism of computers, Intellectual (Copyright, patented, trademark etc) Property Crimes, Online threatening etc. Intellectual property crime includes: 

• Computer vandalism.
• Transmitting virus.
• Net-trespass.
• Unauthorized access / control over computer system.
• Internet thefts.
• Intellectual Property crimes- Software piracy, Copyright infringement, Trademark infringement.

3. Crime against Organization: Crimes done to threaten the international governments or any organization by using internet facilities. These cyber crimes are known as cybercrimes against Organization. These crimes are committed to spread terror among people. Cyber terrorism is referred as crimes against a government. Cybercrimes against Government includes cyber attack on the government website, military website or cyber terrorism etc.

• Unauthorized access / control over computer system.
• Cyber terrorism against the government organization.
• Possession of unauthorized information.
• Distribution of Pirate software.

4. Crime against Society: Those cybercrimes which affects the society interest at large are known as cyber crimes against society, which include:

• Child pornography.
• Indecent exposure of polluting the youth financial crimes.
• Sale of illegal articles.
• Trafficking.
• Forgery.
• Online gambling.

Distinction between Cyber Crime and Traditional Crime

1. Kind of Crime- Cyber crimes are quite different from traditional crimes as they are often harder to detect, investigate and prosecute and because of that cyber crimes cause greater damage to society than traditional crimes. Cyber crime also includes traditional crimes conducted through the internet or any other computer technology. For example; hate crimes, identity theft, terrorism, stalking and bullying are considered to be cyber crimes when traditional crimes are committed through the use of a computer and the internet. 
2. Perpetrator- Another difference is in the description of the perpetrators of both kinds of crimes. The hackers in cyber crime are professional thieves, educated hackers, organized criminal gangs, ideological hackers (hacktivists) etc. as compared to traditional crimes.
3. Evidence- The other difference between these two terms is based on the evidence of the offences. In the traditional crimes the criminals usually leave any proof of that crime like fingerprints or other physical proof. But in the cyber crimes cyber criminals commit their crimes through the internet and there are very less chances of leaving any physical proof.
4. Physical force- Further, these two terms can be differentiated on the basis of use of force. In traditional crimes many of the crimes like rape, murder, and burglary etc. involve the use of excessive physical force which leads to physical injury on the victim. But in cyber crimes, there is no requirement of any type of physical force because in this type of crimes the criminals only use the identities or accounts of other person using computer technologies.

Reasons for Commission of Cyber Crimes

Economically Motivated Cyber Crime

Money is a major motivator for many cyber criminals. Cyber criminals to engage in malware, phishing, identity theft and fraudulent money request attacks to make money fraudulently. Cyber criminals often use cryptocurrency for small transactions, or wire transfers for greater amounts. Businessweek estimates that cyber crimes targeting online banking accounts make nearly 700 million dollars per year globally and that is just one kind of cyber crime.

Personally Motivated Cyber Crime

Cyber criminals are often motivated due to personal emotions and vendettas and are essentially crimes of passion committed over the Internet. From an angry employee installing a virus on office computers or a stalker hacking into someone’s social media accounts are some personally motivated cyber crimes.

Ideologically Motivated Cyber Crime

Some cyber crimes are committed for believed ethical, ideological or moral reasons, as happened when financial companies like Visa, MasterCard and PayPal refused to let account and card holders to make contributions to the controversial non-profit WikiLeaks, a hacktivist group “Anonymous” sent a series of bot attacks on the financial companies’ servers.

Cyber Crimes due to Competition

Various cyber crimes are committed due to competition in industries and getting into a manufacturers system can be valuable, for IP, blackmail, competitive intelligence etc. These crimes are usually committed in industries with complex intellectual property at their core, for eg. technology, pharmaceuticals, general utilities etc.

Politically Motivated Cyber Crimes

Cybercrime is a growing tool used to achieve political ends. It is used to manipulate elections or distribute ransomware. Many companies like Facebook use personal information and data of its users and use this information to influence political views of people.

Cyber Criminals and their types

A cybercriminal is a person who conducts some form of illegal activity using computers or the Internet. These cyber criminals use their knowledge of computer, network and human behavior, and a variety of tools to commit cyber crimes. Cyber crimes can be of following types: 

• Hackers: Hackers explore others’ computer systems for various reasons depending upon their need. Hackers can be of three kinds:

• White hat hackers- A white hat hacker is an ethical hacker who opposes the abuse of computer systems and networks. A white hat generally focuses on securing IT systems.
• Black hat hackers- A black hat is a hacker who compromises or breaks into the security of a computer system or network without the permission of authorized party, typically with malicious intent.

• Grey hat hackers- A Grey Hat is a hacker who sometimes acts legally, sometimes illegally. They are a hybrid between white and black hat hackers. They usually do not hack for personal gain or for malicious intentions, but may or may not occasionally commit crimes.

1. Crackers: These individuals intentionally cause loss to satisfy some antisocial motives or sometimes just for fun. Many computer virus creators and distributors fall into this category. 
2. Pranksters: These individuals perpetrate tricks on others. They generally do not intend any particular or long-lasting harm. 
3. Career criminals: These individuals earn part or all of their income from crime. In some cases they conspire with others or work within organized gangs such as the Mafia. The greatest organized crime threat comes from groups in Russia, Italy, and Asia.
4. Cyber terrorists: There are many forms of cyber terrorism. Sometimes a hacker may break into a government website to steal information or to post a threat. It was found that around 25 Indian government websites were hacked till May 2019.
5. Cyber bulls: Name calling in chat rooms, posting fake profiles on websites, and sending mean or cruel emails or messages are some forms of cyberbullying and cyber bulls indulge in such activities.
6. Salami attackers: Those attacks are used for the commission of financial crimes. The key here is to make the alteration so insignificant that in a single case it would go completely unnoticed e.g. a bank employee inserts a program into bank‘s servers, which deducts a small amount from the account of every customer. 
7. Drops: These individuals convert the ‘virtual money’ or cryptocurrency into real cash. 
8. Kids: They are called so because of their tender age (most are under 18). They buy and resell the elementary building blocks of effective cyber-scams such as spam lists, proxies, credit card numbers, hacked hosts, scam pages etc.
9. Coders: They produce ready-to-use tools such as trojans, mailers, custom bots, viruses and other services and sell them to the cyber crime labour force.

Digital Forensics and Cyber Forensics

Digital forensics is a branch of forensic science which deals with recovery and investigation of digital or electronic data. This data can be from a computer system, mobile device, cloud service, and so on. Its various sub branches include computer forensics, network forensics, forensic data analysis, and mobile device forensics.

Cyber or computer forensics is the application of forensic science to collect, process, and interpret digital evidence to help in a criminal investigation and presenting digital evidence in a court of law. It is the branch of forensic science in which evidence is found in a computer or any other digital device and with increasing cybercrime, cyber forensics has now become crucial for public safety, national security, and law enforcement.

Cyber forensic techniques include:

1. Cross-driven analysis that correlates data from multiple hard drives.
2. Live analysis, which obtains data acquisitions before a PC is shut down.
3. Deleted file recovery.
4. Detecting data theft using Stochastic Forensics.
5. Concealing a file, message, image, or video within another file using Steganography.

Computer forensic investigations go through five major standard digital forensic phases:

1. Policy and procedure development, 
2. Assessment, 
3. Acquisition, 
4. Examination, and 
5. Reporting.

Five Standard Phases of Computer Forensic Investigation 

The listed five-step computer forensic investigation allows examiners to thoroughly investigate the assigned case.

1. Policy and Procedure Development

Law enforcement and government agencies are hiring experienced cyber security experts to draw proper guidelines, policies, and procedures to be followed during computer forensic investigation because data can be delicate and highly sensitive. 

2. Evidence Assessment

Evidence assessment is a critical part of digital forensics as it provides a clear understanding of the case details and includes examining hard drives, email accounts, social networking sites, and other digital archives for digital evidence linking someone to the crime. The investigators should also preserve the acquired evidence properly. 

3. Evidence Acquisition

During evidence acquisition, computer forensic investigators are subjected to follow the policies dedicated to preserving the integrity of potential evidence. This step should be completed carefully and legally as the documented evidence are crucial in the proceedings of a court case.

4. Evidence Examination

The analysis of digital evidence provides details like the date, time, and location where the data were created and downloaded. It also helps the investigators to find the connection between uploading of files from storage devices to a public network. 

5. Reporting

Lastly, investigators need to report the whole process of investigation and evidences acquired and examined to the authorities. This is needed to ensure that all the guidelines, policies, and procedures have been followed throughout; it also ensures the authenticity and integrity of the data retrieved for the evidential reasons. 

Conclusion

In conclusion it can be said that just like cyber crimes are very diverse, cyber criminals also belong to a broad spectrum with different motivations fueling them. Further, cyber crimes and traditional crimes may seem similar on the outside yet there are certain differences between the two, which separate one from another. To tackle these issues, cyber forensics is being actively used these days to deal with cyber crimes, investigate and collect digital evidence and catch cyber criminals. 

References

1. Chapter III: Meaning, Concept and Classification of Cyber Crime; Shodhganga; <https://shodhganga.inflibnet.ac.in/bitstream/10603/188293/11/11_cha%5bpter%203.pdf>
2. H Saini, Y.S. Rao and T.C. Panda: Cyber Crimes and their impacts: A Review; International Journal of Engineering Research and Applications (IJERA) ISSN: 2248-9622 ,Vol. 2, Issue 2,Mar-Apr 2012, pp.202-209 < www.ijera.com>
3. Cyber Criminals: Who They Are and Why They Do It; Vircom; Dated: 07.02.2018; Date of Access: 18.10.2019 < https://www.vircom.com/blog/cybercriminals-who-they-are-and-why-they-do-it/>
4. Sammons J, Cross M.: The Basics of Cyber Safety, 2017; Science Direct: Cybercriminals, Date of Access: 18.10.2019 < https://www.sciencedirect.com/topics/computer-science/cybercriminals>
5. Causes of Cyber Crime by Edward Mercer; itstillworks; Date of Access: 18.10.2019 < https://itstillworks.com/causes-cyber-crime-1846.html>
6. Introduction to Cyber Forensics; Cybrary; Dated: 23.06.2018; Date of Access: 19.10.2019 < https://www.cybrary.it/0p3n/introduction-to-computer-forensics/>
7. Cyberforensics; Technopedia; Date of Access: 19.10.2019 < https://www.techopedia.com/definition/2388/cyberforensics>
8. An Introduction To Computer Forensics And How To Become A Computer Hacking Forensic Investigator; EC Council Blog; Dated: 25.03.2019; Date of Access: 19.10.2019 <https://blog.eccouncil.org/an-introduction-to-computer-forensics-and-how-to-become-a-computer-hacking-forensic-investigator/>

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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Find out the Bar Council Sample Paper and a compilation of some Previous year Papers in this post which will help you to go through the diversity of Questions asked in the exam which will strengthen your concepts for the Bar Exam.

Preparation for any exam involves analysis of the syllabus, past years’ question paper analysis and then the creation of a preparation strategy. If you are preparing for the All India Bar Exam for the first time, this can be quite an overwhelming task, even if you have been a very bright student. The biggest challenge is in identifying the correct direction and sticking to the track. Most students who fail the exam are unable to cross this challenge.

Click Here

In the 20 hour strategy to prepare for AIBE, use the first hour to plan your practice strategy for the remaining 19 hours and your test-taking strategy in the examination hall. These modules will enable you to strategize your preparation – read about the changes to the AIBE, the strategy report, and types of questions, indicative syllabus and the guide to carry-in materials. Print out the indexes and quickly go through Past Years’ Question Papers to understand the types of questions. You don’t need to find out the answers at this stage.

BCI Model Test Paper(New Format)

AIBE IV Question Paper

AIBE V Question Paper

AIBE X Question Paper with Solutions

AIBE XI Question Paper with Solutions

AIBE XIII Question Paper with Solutions

To know about the general principles of contract for AIBE, please Click Here. 

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

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This article is written by Medha Tiwari, a student of Shri Ramswaroop Memorial University, Lucknow. This article is an effort to explain the concept of provisions related to transfer made to unborn persons in simpler terms.

Introduction

Section 5 of the Transfer of Property Act, 1882 defines the phrase “transfer of property”. The section provides that “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 one or more than one living persons; and “to transfer property” is to perform such act. Further provision to the section mentions that “living person” includes a company or association or body of individuals, whether incorporated or not, but nothing mentioned here shall affect any law which is operational in India relating to transfer of property to or by companies, associations or bodies of individuals.

Thus, bare reading of the above mentioned section helps us understand that the conveyance of the property must be from one living person to another living person. When it is said that both the individual must be living, it is implied that transfer by will does not come within the scope of section 5 as such transfers come into effect only after the death of the person who is executing the will. However an exception to this section is section 13 which facilitates the transfer of immovable property in favour of an unborn person.

The provisions of Transfer of Property Act, 1882 in general do not allow the transfer of property directly to an unborn person. Before discussing the concept further, let us understand the meaning of unborn person in reference to this act. A person who does not have any current existence but has a specific reference to one and who may be born in the future is considered to be an unborn child or person. Even though a child in mother’s womb is simply not a person in existence, but has been treated as a person under both Hindu Law and English Law. Therefore, it should be noted that the term ‘unborn’, refers not only to those, who might have been perceived but not yet born, that is a child in womb, but also includes those who are not even perceived. Whether they will be born at all or not is all possibility, but a transfer of property is admissible to be effected for their benefit. After understanding the meaning of the phrase “ unborn person”, now let us examine the concept enshrined under section 13 of the Transfer of Property Act, 1882.

Provision Under Transfer of Property Act, 1882 

Section 13 of the Transfer of Property Act, 1882 provides that when for the transfer of property, an interest therein is created for the benefit of an unborn person at the date of the transfer, a prior interest is to be created in respect of the same transfer and the interest created for the benefit of such person shall not take effect, unless it extends to the whole of the remaining interest of the person transferring the property in the property to be transferred.

Thus, in order to transfer a property for the benefit of an unborn person on the date of the transfer, it is imperative that the property must first be transferred by the mechanism of trusts in favour of some person living other than the inborn person on the date of transfer. In simpler terms, it can be said that the immovable property must vest in some living person between the date of the transfer and the coming into existence of the unborn person as the property cannot be transferred directly in favour of an unborn person.

In other words it can be said that the interest of the unborn person must in all cases be preceded by a prior interest. Moreover,when an interest is created in favour of an unborn person, such interest shall take effect only if it extends to the whole of the remaining interest of the person transferring the property in the property, thereby making it impossible to confer an estate for life on an unborn person. The interest in favour of the unborn person shall constitute all of the entire remaining interest in the estate. The underlying principle in section 13 is that a person disposing of property to another person shall not cause obstruction in the free disposition of that property in the hands of more than one generation. Section 13 does not apply restrictions on the successive interest being created in favour of several persons living at the time of operation of the transfer. What is provided as a restriction under section 13 of the Transfer of Property Act, 1882, is the grant of interest, limited by time or otherwise, to an unborn person.

Thus, it can be said that if the persons for whose benefit the transfer is to take effect are living, any number of successive life interests can be created in their favour. However, an important point to note here is that if the interest is to be created in favour of persons who have yet not taken birth, then in that case absolute interest must be granted to such unborn persons. 

Essential Elements of Section 13

The essential elements of section 13 have been discussed below. They are as follows:

1. No Direct Transfer 

A transfer cannot be directly made to an unborn person. Such a transfer can only be brought into existence by the mechanism of trusts. It is a cardinal principle of property law that every property will have an owner. Accordingly, if a transfer of property is made to an unborn person, it will lead to a scenario wherein the property will remain without an owner from the date of transfer of property till the date the unborn person comes into existence.

2. Prior Interest 

If the circumstances are such that there is no creation of trust, then in that case the estate must in some other person between the date of transfer and the date when the unborn person comes into existence.In simpler words we can say that the interest in favour of an unborn person must always be preceded by a prior interest created in favour of a living person. 

3. Absolute Interest 

The entire property must be transferred to the unborn person. The transfer to an unborn person must be absolute and there should be no further transfer from him to any other person.An interest which remains only for the lifetime cannot be conferred on an unborn person. Under the English law, an unborn person can be conferred an estate only for his lifetime. This concept of English law, however, is subject to a restriction known as the rule of double possibilities. This rule was recognised in the case of Whitby Mitchell. The rule states that life interest to an unborn person should not be transferred as doing so will give rise to existence of two possibilities. The first possibility will be the birth of the unborn person to whom the life estate was to be transferred and the second possibility will be the coming into existence of issues of that unborn persons. Thus, the transfer of property to an unborn person can be permitted only if the absolute interest is transferred and not just the life estate.

Illustration 

“A” owns a property. He transfers it to “B” in trust for him and his intended wife successively for their lives. After the death of the survivor, it is to be transferred to the eldest son of the intended marriage for his life, and after his death, it is to be transferred to A’s second son. The interest so created for the benefit of the eldest son does not take effect because it does not extend to the whole of A’s remaining interest in the property.

When an Unborn Person Acquires Vested Interest

The provisions of section 20 of the Transfer of Property Act, 1882 mention the concept that in what circumstances unborn person acquires vested interest. Unborn person may not be able to enjoy the possession of property as soon as he is born but he may, however, acquire a vested interest in the property since his birth. Where, on a transfer of immovable property interest is created for the benefit of an unborn person, he acquires upon his birth, a vested interest, although he may not be entitled to the enjoyment thereof immediately on his birth.The mentioned provision however may be waived off if the terms of the agreement mention a contrary clause.

The section lays down that an interest created for the benefit of an unborn person vests in that unborn person as soon as he is born. Such interest remains vested interest even though he may not be entitled to the enjoyment thereof immediately on his birth.

For example, if “A” transfers an estate to trustees for the benefit of A’s unborn son with a direction to accumulate the income of such estate for a period of ten years from the date of the birth of A’s son and then to hand over the funds to him. A’s unborn son acquires a vested interest upon his birth, although he is not entitled to take and enjoy the income of the property for a period of ten years. 

Views of the Apex Court in Reference to the Transfer to Unborn Person

The Supreme Court of India in various cases from time to time has interpreted the provisions of the Transfer of Property Act,1882 in respect of the transfer of property done for the benefit of unborn persons. In the famous case of Girjesh Dutt vs. Datadin, the Apex Court made important observations. Facts of the case enumerate that “A” made a gift of her properties to “B”, who was her nephew’s daughter. The gift made by A was made for the life of B and then to B’s daughter without power of alienation and if there was no heir of B, whether male or female, then to A’s nephew. B died without having any children. Thus considering the facts of the case, the court held that the gift in favour of unborn daughters was invalid under Section 13 as the gift was a limited interest and also subject to the prior interest in favour of B.

Another case related to this concept is of Raja Bajrang Bahadur Singh v. Thakurdin Bhakhtrey Kuer. In the instant case the Apex Court had observed that no interest can be created in favour of an unborn person but when the gift is made to a class or series of persons, some of whom are in existence and some are non existent, it does not fail completely, it is valid with respect to the persons who exist at the time of testator’s death and is invalid with respect to the rest.

Conclusion

Thus from the above discussion it is clear that the transfer of property can be executed in respect of unborn persons. Though, the transfer cannot be operated directly but it can be executed indirectly by the machinery of trusts. In other words, the interest in favour of the unborn person shall constitute the entire interest in that particular immovable property. The underlying fundamental principle enshrined under section 13 of the Transfer of Property Act is that a person disposing off property to another person shall not create hurdles for the free disposition of that property in the hands of one or more generations.

Thus, for the validity of a transfer in favour of an unborn person, it is important that the whole of the remaining interest of the person transferring the property should be conveyed to the unborn person. Moreover, as soon as the transfer of property comes into operation, the vested interest is also transferred to the unborn person. The transfer of immovable property to unborn persons can, thus take effect only according to the provisions discussed above. Else, the transfer will be declared as void.

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  Abhyuday Agarwal, COO,  LawSikho.

We see an increasing concern and a search for ‘work-life balance’ for lawyers, irrespective of whether they are corporate lawyers or litigators. Some in-house counsels are also facing a huge amount of work.

Law firms and companies are struggling to understand the implications of this on organizational productivity.   

Wouldn’t work-life balance reduce productivity owing to the reduction in total number of hours spent on work? 

Or would it enhance productivity because lawyers/ other employees will be more productive in less time? 

Would a short-term fall in productivity makeup in the end through higher retention rates and increased productivity as the output of lawyers/employees who have stayed longer at work is higher in the long term?   

Should law firms and companies ignore this discussion altogether and implement a culture of work-life balance for the greater good, or say, just to faceless criticism? 

These are important questions because the direction of our economy will be shaped by our answers to these questions. 

I believe that effective answers to these questions might be important for long-term growth. 

If we avoid facing them, that is actually an answer in the negative. 

Before we proceed to how a challenge about the absence of work-life balance needs to be dealt with, we need to understand our own need for work-life balance.

The concept of work-life balance is ‘elastic’  – for each individual, the division of work, relaxation, learning away from work varies. For the same person also, it varies depending on their immediate goals and stage of their career/ life. 

This is one of the reasons that companies can find it hard to arrive at uniform parameters for what a system to ensure work-life balance must provide.

Productivity Phases at Work  

A team member may have a ‘lean’ period of learning, uneventful activity, monotony, followed by an epiphanic discovery which changes everything, followed by a series of feverish activities and breakthroughs, which gradually translates into the lull of uneventful activity.

The cycle repeats.    

Law firms and companies have a choice on whether to allow individual members to follow their own journey on this path. 

On this path, a lawyer may spend time in office, but actual deliverables and productivity over different weeks may vary, depending on which phase you are going through. Every lawyer, irrespective of seniority, will go through this path. Partners and general counsels also experience this. 

The question is not about the number of hours clocked in at your desk, or the number of hours spent at home. You may relax or be distracted at your workstation in the office, or work on your computer.

If I take the psychological weight out of a deliverable, and throw the worry of failure out of the window, the colour of the task at hand completely alters. This is a continuous self-development journey in itself as an individual. 

Environmental factors have a role to play in this individual journey. If I have an environment of criticism and denouncement all around me (from peers, seniors and bosses), which can often happen in real life, I will find it very difficult to take the psychological weight out of an assignment. 

If, however, we bring in teamwork, a common purpose, and the element of learning by doing  (instead of failure and obedience), and you might start ‘naturally’ working for 20-40% longer.   

There are many team members at Lawsikho who have taken this approach while learning and while building teams. We are still working on this approach.  

However, we have seen that when we follow this, new ideas will strike people on their own, even when they are not at their desk (or machine) working.

There is a very natural inclination to one’s work. People start developing a new level of care, maturity, dedication and they grow personally as well.    

What is important is that law firms, companies and managers stay alive to this process of individual growth, and respect it. 

However, an organization cannot immediately incorporate this in its fabric. Lawyers who are leading or building teams will need to stay sensitive to this part of a team member’s journey.  

Implementation Roadblocks

In many companies, the founders, promoters, managing partners, or salaried partners who have risen through the ranks may not have gone through this journey. This is not the cultural environment they grew up in. Many have grown under pressure, criticism, competition and an environment of threat. Most human beings give in and burn out under such pressure, but they have grown in spite of such challenges. 

They survived through sheer strength of character, managed not to implode within. Kudos to them.

However, sometimes they tend to think that this is the only way to identify talent for the future. That is the point where we need to start a new inquiry.   

Requirements in the New Economy 

Today, lawyers (and employees in companies)  are demanding a different way to grow, one which is more meaningful, peaceful and supportive. Some people think this is a generational change, a new standard sought to be imposed by ‘millenials’. 

However, there could be an economic justification to this. As the structure of the economy alters, the old assembly-line or repetitive jobs are vanishing, new kinds of jobs are emerging. 

Job security is fast evaporating. One really needs to ‘think’, ‘plan’, execute, learn and improve, differently and continuously. Success at these jobs requires a different quantity and quality of work to be done to succeed. Read this article on how advance chess is the future of the legal profession. 

If one comes from a place of peace, mental safety and satisfaction, as opposed to an environment of passive threat, there is a space for creativity, time to think and for experimentation. These will be important virtues for the new economy.

We have seen that several senior people who have been successful under the old model of ‘put your head down and work till you succeed’ are unable to adapt to this new economy. This appears to be the case because they cannot handle uncertainty. They cannot come up with experiments. They always want a tried and tested method to succeed. Unfortunately, that is not available. They are not used to channelling their inner creativity and inventiveness when faced with uncertainty. 

Ingredients for Success in the New Economy

Success (combined with satisfaction) in this economy requires a different kind of mental effort and actions. It is new, and we are not trained and wired to be this way. Given the necessity of putting such kind of effort in the new economy, more and more people are devoting themselves to their passions and striving to create a living from it, as that is a more meaningful pursuit for them, and it requires a very similar kind of thinking and execution skills. 

In this environment, mental well-being, learning, personal and professional growth is critical for success, and for rest.

Full alertness, creativity and peace of mind produce better output than a system of pressure and constant policing, which may have worked for relatively more straitjacketed jobs.   

One cannot grow without taking care of oneself. Mental well-being is a necessity.

What does a new work-life balance look like?

Does mental well-being relate exclusively to spending time away from work (i.e. going on vacations), going home on time, or are there other aspects to it? 

Not exclusively. To nurture mental well-being, one is required to spend time on learning, growth, psychological development, connecting with friends, working out physically (the impact of exercise on mental focus is underestimated – a 10 minute workout can alter the direction of a bad day into one of unprecedented productivity), strengthening your mind, listening to music (your favourite music, sleep meditations, affirmations, etc.). 

It is essential that the ‘balance’ includes time and activities to learn and grow in a different direction and to expand one’s mind.

At the same time, I don’t think that there is a uniform concept of work-life balance applicable to all individuals. There may not be a standardized sense of balance or a one-size-fits-all structure. It varies from person to person.

Everyone has to figure a unique balance and set of activities for themselves and stay conscious of how this requirement is evolving for them. This is the primary responsibility of the individual. The organization is required to provide the individual space, structure and opportunities to do this.   

Such growth activities by lawyers need to be undertaken without mentally worrying about the next big project or deliverable. You don’t need an international vacation – you can allocate a few minutes, hours or a day to your growth, but in that time, there must be freedom from worry. It can also happen for a few brief moments (maybe half an hour) right in the middle of work.  

An organization needs to be alive to this.

Overlaps between spaces for work and rest

There will also be overlaps in the spaces of work and rest, which is why the traditional demarcation between being at work during office hours and outside office hours will start blurring. 

You might not be working on the next client deliverable, but learning more about the industry, and that might be play. 

At another level, you might be reading a book on love, friendships and how to grow your personal relationships, and then realise how you can implement some takeaways to improve personal and work relationships simultaneously.  

To include this in work culture, there will be flexibility in work timings, possibility of remote work, sabbaticals, periods of training, etc. There may be a moderate reduction in salary which is more than compensated by the space to grow, and high incentives for long-term results. 

Encouragement of long-term entrepreneurial initiatives in-house 

Imagine that a senior associate wants to develop a new kind of practice in 5 years for which he or she needs to undertake a different kind of learning. Maybe he or she needs to learn some new area of law, a foreign legal system develops a new kind of clientele, learn a lot of technology, a foreign language. The task could require a combination of the above. 

He or she needs to invest a bit to travel. Maybe he or she is willing to take a pay cut or partly invest in learning or travel. 

Rewards are uncertain. If the experiment works, the law firm could be a leader in a new kind of work. If it doesn’t, the law firm stays where it is.   

The organization can give him or her the room to grow and learn and maybe even invest. He or she may not get the increments that a partner gets, but the room to grow and learn can be provided. He or she will deviate from the standard partner track, but what if this effort turns out to be wildly successful? A disproportionate incentive needs to be allocated for success so that if he or she is successful, the rewards for him or her are a match for (or even exceed) the rewards of his or her peers, who would become partners by then.      

The practical challenge in implementation of such initiatives is what will happen to immediate deliverables. 

This continues to remain a chicken-and-egg scenario. Immediate deliverables continue to remain piled up, owing to which the opportunity for such a shift does not arise.  

Proposal for a model

I am proposing a three-step model here. Additional hiring to manage the workload, a moderate reduction in pay coupled with investment on training.

Over the period of one or two years, this can bear very fruitful results, in terms of reduction in attrition, increase in job satisfaction, balanced working hours and a highly motivated team.     

The reduction in pay should not adversely impact the workforce, when compared with the benefits in terms of work culture. People don’t value astronomical salaries at the cost of personal health and well-being, as they are unsustainable. If I earn 25% less today but I can work for 10 more years, I will earn more over the span of my career. If I earn 25% more today but cannot work for more than 2 years in this manner, I may earn less over the span of my working career.   

The role played by training in this model is crucial. While many big law firms pride themselves on their knowledge management efforts and the marquee names of celebrity lawyers who come to train their lawyers, when we talk to the lawyers who leave such firms, we find that there is enormous scope for improvement in training content and methods. Above all, a system for continuous learning and mentoring, especially for junior lawyers, is critical.

This is connected to one of the challenges faced by relatively senior lawyers, who may benefit from spending more time mentoring their teams, ensuring collective team output through constructive coaching and team building. Currently, there are several partner level individuals in big law firms who have not been able to retain people or build a large team, and that impacts the overall output, as they are left as a one-man army. 

Click Above

Often, the tendency is to take the burden to do the entire team’s work by themselves if the team fails, and to abandon all training initiatives as faith is lost when people make mistakes. 

Planning, training and delegation matrix

This actually stems from a combination of failures in planning, training and delegation. Any senior would say that solving this kind of problem falls outside their job description, and understandably so. 

How can you delegate to people who are not trained to do the work? No level of creativity and planning will fill that gap. 

It could be that we are struggling to transition to the new economy because one of the core elements to solve the planning-training-delegation matrix (i.e. training) is missing in the ecosystem. 

As we have realized through our own journey, the scope of training is incredibly vast and complex. Guest lectures, summer schools, exchange programs and credit courses are just insufficient to train lawyers to get real work done. Industry-academia collaboration is not about guest lectures or an additional credit course, or organizing a day-long conference on a new issue where you invite a managing partner from a big firm to share some insights. 

A lot more goes into systematic training. Drill-down on basics, exercises, practice, coaching, elevation to advanced problem-solving concepts, etc. We have about 40-people in our team (primarily remote, throughout the country), focussed full-time and exclusively on practical legal education, we have been working at this for 9 years (if you add up the age of the iPleaders blog) and yet we are far from done. In fact, the work has only begun. Read more about what Lawsikho is here. 

This is how we are planning to fill the gap and facilitate lawyers in their journey to transition toward the new economy.

Another possible area of development for senior people is around on client-development and cultivation of new practice areas.

It is likely that in these areas there will be some borrowing from other managerial and leadership-related disciplines and their customized application to legal work. As the ecosystem matures, we may see a collaborative effort and a range of arrangements between law firms, professional coaches, legal training companies and even psychotherapists. 

The First Step Forward 

What can you do to stop the cycle and take the plunge toward mental well-being? Does the past necessarily have to repeat itself, given that the future requires a different kind of lawyers altogether? 

Any person at any level in the organization can take the initiative to break this chain. Of course, if someone senior takes the initiative, the change may spread faster. However, do not underestimate your own impact. Start the wave and onboard one more person. Then, onboard one more person. 

It takes one person to stop the cycle. Take the time out to learn an area of legal practice so that you are more comfortable with deadlines owing to increased training. Read individual self-development books. Work out and meditate. You can work out thrice a week for 40 – 60 minutes in your own house at any time with this app. You don’t need to meditate in a cave, do a short audio-assisted meditation through an app.

Take the pressure out of deliverables. 

Ensure your learnings trickle to your team members. Let them be groomed in a different way.

Also, share victories in an inspiring way with peers and seniors, so that they are inspired to take it up. 

Let the movement grow.  See the wave spread to the ocean.  

If you have a team, or if you want to build a team in the future or if you want to create the space for yourself to operate from these new values, then you might consider imparting group-training to your team.

We understand that in-house training is not a full-time job of a practising lawyer, which is why we stay exclusively focussed to it.   

For those interested in learning further, here are the courses open for enrolment:

DIPLOMA

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

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

LIBRARY

Litigation Library by LawSikho

Corporate Law Library by LawSikho

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 Work-life Balance for Lawyers in the New Economy appeared first on iPleaders.

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

I had just received my 12th-grade results. I did quite well. Nothing earth-shattering, but good enough that I was honored as one of the top performers in my district. And still, I applied to about 5 colleges and got through none. 

I had written the NLSIU entrance, and I didn’t make it.

I had written NUJS entrance, and was on the waitlist, but didn’t go for it. I would have made the cut, but I didn’t feel prepared to go there because I knew my English was terrible. I should join a graduation course in English Literature to learn more English, I thought.

I was kind of nervous about studying in a law school in English as up to that point I studied in Bengali medium schools. I wanted a trial run or more time to prepare for studying law in English. I thought being on a waitlist was the sign that I needed that preparation.

I didn’t consider that writing any other law entrance was worth it. 

I had written 2 entrance tests for English departments, at Jadavpur University and Presidency College, Kolkata, and didn’t get through either. So I didn’t bother to apply anywhere else.

My parents initially thought I had things handled, but when they saw I am not taking admission in any college, they panicked. They asked me what’s the deal.

I said well, I am going to write the law entrances again next year, and I will make it. I need not take admission anywhere.

They were not convinced. They insisted that I must take admission in some college, even if just on paper. It would apparently help me to explain the drop year after my board’s exam better.

I didn’t understand why I must take admission in a college I wasn’t really interested in, but I trusted my parents and went for it. However, as I was late, admission to most colleges was closed by then. My mother took me to meet an old professor of hers, Prof. Sabuj Sen.

Sabuj Sen was a famous professor from Narasingha Dutta College, a hundred plus-year-old college in Howrah, my hometown. The college wasn’t known for the highest level of education, but it was the staple place where those who didn’t have stellar marks found a place anyway. 

So I was taken to meet Prof. Sabuj Sen. He looked at my mark sheet and appreciated it. Then he asked me, why do you want to study law? I said I heard people who graduate from top law schools earn 1 lakh per month. I also want to earn that much.

It was an honest answer. But Prof. Sen was disappointed. He was taken aback visibly. He asked me “what will you even do with 1 lakh per month?”

You see, I come from a society where the pursuit of knowledge, art, and good qualities was always prioritized over the pursuit of money.

Anyway, Mr. Sen helped me to secure admissions in that college, in the night section which I preferred. I attended the Shakespeare classes as well as the history of the English language for a while until the first-semester exam which I did not feel was worth writing. I prepared for law entrances and made it to NUJS next year as a 2nd topper in the merit list. 

Click Above

And that was that. I still wanted to earn 1 lakhs per month. It was the dream back in 2005, which came true sooner than I thought. I hit that mark several times while doing freelance work as a law student in the 4th and 5th year of law school. I was paying income tax by the time I was in 3rd year of law school itself!

When I joined a big law firm after college, the salary package was well beyond 14 lakhs per annum, and I had a side income too. It helped me to pay down my entire education loan in 5 months straight, pay a bit to my family which was building a house, live a pretty good life in South Bombay and save for 3 months rent and living expenses because I was going to quit at the 1 year mark to pursue my dreams of setting up the world’s greatest legal education company.

I will tell that story another time, but the point I am making is that it’s pretty awesome to make good money. It solves a lot of problems. I highly recommend it.

You do not really have to stop at 1 lakh. I think it’s a bare minimum. If you can get to 1 lakh, you can get to 2, and then you can get to 5. 

However, 1 lakh is an achievable, manageable target. If I could do it back in 2010, when the value of that money was at least double of what it is now (thank you inflation!), you can certainly do it in 2020. 

I hope you are familiar with the concept of inflation, right? India has about 5-10% inflation per year. That means if the price of something was 100 rupees last year, it probably costs something between 105-110 now, on an average. Whatever you could buy with 1 lakh back in 2010, you can buy only half of that, or even less, by now.

That means if you could charge INR 5,000 for drafting a certain contract in 2010, you can probably charge at least INR 10,000 or 12,000 for the same right now. Earning 1 lakh per month is becoming easier by the year!

So yeah, feel free to revise your target upwards of INR 1 lakh. It is more of a symbolic number. If you can get there, you can go further.

All the best.

If you take any of our diploma courses, and you do all the assignments and attend all the classes, I firmly believe that you can easily earn 1 lakh per month by the time you are done with the course. Hopefully, before you are done with the course. 

You see, we do not only teach amazing and marketable legal skills that clients and employers will be happy to pay for, but we also take weekly free classes, teaching you how to improve your profile, create a great personal and professional brand for yourself, and how to find clients.

Take the 1 lakh per month challenge if you are not already there. What kind of lawyer does not even earn 1 lakh per month?

Not you.

You are going to earn more than that. Let us help you with it.

Here are the courses in which we are currently taking enrollment:

DIPLOMA

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

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 Prevention of Sexual Harassment at the Workplace

Certificate Course in National Company Law Tribunal (NCLT) Litigation

LIBRARY

Litigation Library by LawSikho

Corporate Law Library by LawSikho

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 I Wanted to Earn 1 lakh appeared first on iPleaders.

So, today is the day! We are finally announcing the winner of our Blog Writing Competition of 4th week of September 2019 (From 23rd September 2019 To 29th September 2019) 

We’d like to say a big thanks to everyone for participating! It has been a great pleasure receiving your articles on a different legal topic, they were all amazing! 

And now we’d like to congratulate our top 5 contestants who become the undoubted winners. Their entries (see below) received marks ranging from 7 to 9 out of 10 based on the average marks given by the panel of our editors, the most of any entrant, and has been crowned the winners!

We also have winners who made the top 10. Their entries (see below) received marks ranging from 5 to 6 out of 10 based on the average marks given by the panel of editors, the most of any entrant, and has been crowned the winners!

Click here to see all of the contest entries.

Our panel of judges, which included editors of iPleaders blog and LawSikho team, choose the winning entry based on how well it exemplified the entry requirements.

Congratulations all the participants!

Regards,

Team LawSikho.

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 Blog Competition Winner Announcement – 4th week of September 2019 appeared first on iPleaders.

So today is the day! We are finally announcing the winner of our Blog Writing Competition of 1st week of October 2019 (From 30th September 2019 To 6th October 2019) 

We’d like to say a big thanks to everyone for participating! It has been a great pleasure receiving your articles on a different legal topic, they were all amazing! 

And now we’d like to congratulate our top 5 contestants who become the undoubted winners. Their entries (see below) received marks ranging from 7 to 9 out of 10 based on the average marks given by the panel of editors, the most of any entrant, and has been crowned the winners!

We also have winners who made the top 10. Their entries (see below) received marks ranging from 5 to 6 out of 10 based on the average marks given by the panel of editors, the most of any entrant, and has been crowned the winners!

Click here to see all of the contest entries.

Our panel of judges, which included editors of iPleaders blog and LawSikho team, choose the winning entry based on how well it exemplified the entry requirements.

Congratulations all the participants!

Regards,

Team LawSikho.

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 Blog Competition Winner Announcement – 1 week of October 2019 appeared first on iPleaders.

This article has been written by Jaimithra S[1]

Introduction

Suicide is referred to as the act of self-murdering or killing of oneself. It is an intentional act whereby the person ends his/her life to escape tragedies they face. While there can be many reasons which push someone to end their life, the underlying cause traces to stress. As per the reports of the World Health Organisation, nearly 8 million die due to suicide which is one person every 40 seconds.[2] According to the Accidental Deaths and Suicides in India report made by the National Crime Records Bureau, there were 130,000 suicides in India in 2015[3] and in 2012 the state of Tamil Nadu reported 12.5% suicides, the highest per cent followed by Maharashtra[4]. This article will focus on the legal facets of Suicide in India answering hypothetical issues that arise from decriminalization of attempted suicide.

Right to die

Section 309 of the Indian Penal Code declares that attempting suicide is a crime and the survivor is punished accordingly. The provision reads as, 

“Attempt to commit suicide: Whoever attempts to commit suicide and does any act towards the commission of such offence, shall be punished with simple imprisonment for a term which may extend to one year or with fine, or with both.”[5] 

The constitutional validity of this section was very much challenged on the ground that it violated the Right to life guaranteed under Article 21 of the Constitution of India which according to many included the Right of individuals to end their lives. Article 21 of the Constitution reads as,

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

The following are the landmark judgments regarding the question of law, Whether Section 309 of IPC is ultra-vires the Constitution?

In Maruti Shripti Dubal v. State of Maharashtra[6], the Bombay High Court ruled that section 309 is unconstitutional as it violates Article 21. The court observed that when the freedom to remain silent[7] exists concurrently with the freedom of speech and expression[8], there also exist a right to die concurrently with the right to life; the desire to die is not unnatural and so there exists a right to die. In 1987, the decision of Andhra Pradesh High Court in Chenna Jagadeeswar v. State of Andhra Pradesh[9] contradicted the aforesaid decision. The constitutional validity of Section 309 was challenged on the ground of violating Articles 14 and 21. It was held that the said section was not unconstitutional as it did not violate any of these articles. Abrogating this decision, the division bench of the Supreme Court while disposing of P Rathnam v. Union of India[10] held section 309 as unconstitutional and void for it violates Article 21. The court also observed that the provision is cruel and inhuman as it once again punishes a person who had already suffered agony and as a result of which that person attempted suicide. 

This proposition was overruled in Smt. Gian Kaur v. State of Punjab[11]. The Supreme Court held that right to life is a natural right while suicide is an unnatural extinction of life and therefore the latter is inconsistent with the former. Aspects which are in accord with and will add on to life with dignity can be read into Article 21 and not those which extinguishes it. The court thus upheld the constitutional validity of Section 309. However, as an exception to this, the Apex Court in Aruna Ramchandra Shanbaug v. Union of India & Ors[12] upheld the validity of Passive Euthanasia, Assisted suicide, whereby the life support of a terminally ill patient is removed or halted. So, as far as India is considered, right to life does not include the right to die but provides for “right to die with dignity” which is facilitated by Passive Euthanasia only in certain circumstances permitted with the leave of the Supreme Court. 

Decriminalization of suicide

India has retained and preserved many laws enacted during the British Raj even after independence in 1947. Section 309 is one such which was retained despite the fact that the British parliament itself decriminalized attempted suicide in 1961 through the Suicide Act. The Law Commission of India undertook to revise IPC along with other central acts and as a result of which it recommended repealing of section 309[13]. “We are, however, definitely of the view that the penal provision is harsh and unjustifiable and it should be repealed”[14]. It rather suggested a new Section which reads as “309. Whoever, by persistent acts of cruelty, drives a member of his family living with him to commit suicide shall be punished with imprisonment of either description of the term which may extend to three years, and may also be liable to fine”[15]. The Bill to repeal this was introduced in Rajya Sabha in 1972 but it failed to pass through Lok Sabha as the house was dissolved then, lapsing the bill. Later, the Law Commission in its 210^th report recommended that “Section 309 needs to be effaced from the statute book because the provision is inhuman, irrespective of whether it is constitutional or unconstitutional…… the offence of attempt to commit suicide under Section 309 needs to be omitted from the Indian Penal Code.”[16] It said, “Section 309 of the Indian Penal Code provides double punishment for a person who has already got fed up with his own life and desires to end it.”[17] 

At last, by the Mental Health Care Act 2017, which commenced in 2018, the scope of section 309 was limited without repealing it from IPC. The relevant provision reads as, “Notwithstanding anything contained in Section 309 of the Indian Penal Code any person who attempts to commit suicide shall be presumed, unless proved otherwise, to have severe stress and shall not be tried and punished under the said Code.”[18] India has now decriminalized the attempt to commit suicide and views the issue as one requiring treatment rather than punishment. The enactment of the act was not a cakewalk for the legislators as there was opposition to it. The reasons and arguments against decriminalisation are elaborated below.

Arguments against

As per the Constitution, the state is entrusted with the duty to promote and protect the lives of its people. In this accord, section 309 provided authority to the state to punish a person if he/she attempted to commit suicide. Life is a gift bestowed by nature and it shall not be taken away by man unnaturally. The state has a duty to prevent persons from terminating their lives. This argument does not hold good, as the Constitution and courts in various cases have stated that state shall not interfere into the personal lives of individuals. Their rights and freedoms, however, are not absolute. They are subjected to reasonable restrictions which are provided by the Constitution and its scope being elaborated by the courts. Retaining section 309 allows the state to intrude into an individual’s life and curtails their freedoms.

The argument advanced by few state governments was that section 309 was instrumental in convicting drug traffickers and suicide bombers who survived. This proposition is also absurd as there are separate laws to deal with these offenders like the Narcotic Drugs and Psychotropic Substances Act 1985 and Unlawful Activities (Prevention) Act 1967 respectively. Also, other provisions of IPC like Criminal Conspiracy[19], War against the state (waging or attempting or abetting)[20], Murder[21], Attempt to Murder[22] etc, are simultaneously invoked in cases involving terrorist activities.

Another argument raised against decriminalisation of attempt to suicide was that it would handicap the authorities in dealing with persons going on hunger strike or fasting until death. This kind of protest is mostly showcased by activists to press the government to accept their demands, which may not necessarily be legitimate. Whether the person actually wanted to suicide or not is irrelevant because the logic that the ultimate point of hunger strike being death proves that section 309 is of utmost use.

Addressing unaddressed issues

A new concept introduced, introduces new questions. Since punishing a person who attempted suicide served no purpose and to change the outlook of people on the subject, suicide was decriminalised. However, as stated before, it gave rise to many questions of which three interesting ones are discussed below.

Is the abetment of suicide an offence?

Attempt to suicide is no more a criminal offence and the survivor is kept out of punishment. Thus the scope of section 309 is limited to section 115 of the Mental Health Care Act. Now, the immediate question which arises is whether abetment of suicide is an offence or not? Attempting suicide is the result of severe mental stress and it is not the same in the case of abetment of suicide. The person who abets another person to commit suicide actually has an ill-intention and that cannot go unreported and unpunished. It is this ill-intention that creates intense stress or fear if the intention is materialised through threat. Abetment need not necessarily involve forcing someone to commit suicide but also aiding that person in that process. The IPC provision regarding this reads as,

“Abetment of suicide.—If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine”[23]. 

In Gurcharan Singh vs. State of Punjab[24], the Supreme Court held that to constitute abetment of suicide, the intention and involvement of the accused in aiding or instigating the commission of suicide is imperative. Too remote acts or omission to realise suicide does not attract section 306. “More active role which can be described as instigating or aiding the doing of a thing is required before a person can be said to be abetting the commission of an offence under Section 306 of IPC.”[25] It must be an active role rather than mere words spoken in a fit of anger. In Swamy Prahaladdas v. State of Madhya Pradesh & Anr[26], the Supreme Court held that the words “go and die” uttered by the accused during a quarrel prima facie do not amount to the instigation of the commission of suicide. Thus, abetment of suicide is still an offence and section 306 is still operative despite the decriminalization of suicide.

What if severe stress is not proved?

According to the Mental Health Care Act, it is presumed that the person who attempts to suicide is under severe stress unless it is proved otherwise. So, the survivor will be provided with treatment and rehabilitation, by the Central Government, to prevent recurrence of attempt to commit suicide[27]. What would be the scenario if severe stress or even stress is not proved? Since the enactment is silent about what has to be done when it is proved otherwise, the issue has to be addressed through logical reasoning. Generally, a person commits suicide to escape the tragedies of his/her life and this apparently proves stress. But there can also exist a situation where a person might have committed/attempted suicide for absurd reasons like to experience the near-death moment or to force someone to accept their love. Here, the person is not under any stress. It is fortunate that section 309 is still not repealed. When it is proved that the person had attempted suicide, not under severe stress, section 309 will be handy to deal with such cases. The person will be charged for the offence of the attempt of suicide and will be punished as per the provision. By this, section 309 of IPC is made operative to cure the lacuna without violating section 115 of 2017 Act.

Is suicide case still a medico-legal case?

This question arises mostly in the minds of young medical graduates. When the law had declared that the attempt of suicide is no more crime, should it still be considered a medico-legal case (MLC)? A medico-legal case is one where the attending doctor, after examining the patient, thinks that it has to be reported to the authorities for investigation and for fixing responsibility in accordance with the law. Suicide is indeed an MLC as it will be governed by section 309 for reasons stated in the previous question and the hospitals are duty-bound to provide Medico-Legal report to facilitate the investigation. This report will also aid the investigators to trace if there was abetment or harassment. Even if it is proved that there was stress which led the person to attempt suicide, it has to be reported so as to make available to that person the necessary treatment and counselling. In short, suicide is an MLC irrespective of whether it is crime or not.

Conclusion

To quote Phil Donahue, “Suicide is a permanent solution to a temporary problem”. Every person desires to lead a problem-free life but life is a mystery cycle surprise with what we least expect. When a person is exposed to a tragedy, he fails to analyse the surroundings and situation because of which he is not able to recognize ways to tackle the issue leading him to resort to committing suicide. Suicide is never a solution; even if it is one, it is neither desired nor encouraged. The World Health Organisation recognises suicide as a public health priority and it committed itself to work for the reduction of suicide rate globally. As far as India is concerned, suicide is now viewed as one which requires treatment more than punishment, which itself is a great start. With the direction set by law, it is the duty of every individual to act in ways which do not affect their lives and the peace of the society. 

Endnotes

[1] Jaimithra S, pursuing III year B.A.LLB(HONS) in School of Excellence in Law, The Tamil Nadu Dr.Ambedkar Law University, Chennai.

[2] Suicide Data, World Health Organization, available at https://www.who.int/mental_health/prevention/suicide/suicideprevent/en/,  last seen on 04/10/2019.

[3] Suicides in India- What data shows, livemint, available at https://www.livemint.com/Politics/YCw8vC0qZUzAYkWSEVXS9N/Suicides-in-India-What-data-shows.html, last seen on 05/10/2019

[4] Suicides in India, Wayback Machine, available at https://web.archive.org/web/20140513155939/http:/ncrb.nic.in/CD-ADSI-2012/suicides-11.pdf, last seen on 05/10/2019.

[5] S. 309, Indian Penal Code, 1960

[6] 1987 (1) BomCR 499, (1986) 88 BOMLR 589

[7] Art. 20(3), the Constitution of India

[8] Ibid, Art. 19(1)(a).

[9] AIR 1988 Cr.L.J. 549

[10] 1994 AIR 1844, 1994 SCC (3) 394

[11] 1996 AIR 946, 1996 SCC (2) 648

[12] (2011) 4 SCC 454

[13] 42^nd Law Commission Report,  The Indian Penal Code, 244 (1971), available at http://lawcommissionofindia.nic.in/1-50/Report42.pdf,  last seen on 07/10/2019.

[14] Ibid

[15]  Ibid,  p.245

[16] 210^th Law Commission Report, Humanization and Decriminalization of Attempt to Suicide, 39 (2008), available at http://lawcommissionofindia.nic.in/reports/report210.pdf,  last seen on 07/10/2019

[17] Ibid, p.38

[18] S. 115, Mental Health Care Act, 2017

[19] S. 120B, Indian Penal Code, 1860

[20] Ibid, S. 121.

[21] Ibid, S. 302

[22] Ibid, S. 307

[23] S. 306, Indian Penal Code, 1860

[24] (2017) 1 SCC 433

[25] Randhir Singh vs. State of Punjab,  (2004)13 SCC 129

[26] 1995 Supp SCC (3) 438.

[27] S. 115(2), Mental Health Care Act, 2017

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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Types of Legal Reasoning Questions

Once you have understood what legal reasoning is about and what it aims to test, it is important for you to understand the different types of legal reasoning questions that have come in previous exams.

All legal reasoning questions do not appear the same – some may be much more elaborate, while others basic, You need to be adequately prepared to tackle all the different types of questions.

In this chapter, different types of questions that were asked in previous years’ question papers are analyzed, As you go through this chapter, try to distinguish the different types of questions, You don’t need to worry about the correct answers of each question at this stage.

Type 1  

The classical legal reasoning question.

This question has a single principle with multiple options (usually four, but some of the older NLS papers have three options).

Let’s take an example:

• Principle: Mere promise without a proper follow-up does not create a binding legal obligation.

Saurav planned construction of a marriage hall and to make it available for the use of all sections of Society, at nominal rates. Gaurav, a rich philanthropist in the area, assured him financial help to the tune of Rs. 10,00,000, Relying on the assurance, Saurav raised a loan and constructed the marriage hall Gaurav did not pay the assured sum. Gaurav was not informed that Saurav had started the construction work, solely relying on his assurance.

1. Saurav can initiate legal action against Gaurav for breach of promise and succeed.
2. The one who extended the loan to Saurav, can legally proceed against Gaurav for recovery of the loan and succeed.
3. Any member, belonging to any Section of Society can initiate a public Interest Litigation against Gaurav and successfully recover the promised amount to Saurev.
4. No legal action against Gaurav will succeed.

(NLS, 2003) 

Or 

• Principle: A Person is entitled to protect his property by using lawful means.

Ramlal is growing valuable vegetables and fruits on his farm and he has fenced the farm to prevent the cattle from entering into it. In addition he has kept a ferocious dog to chase away intruding urchins and cattle. Some children were playing in a nearby playground and the ball slipped into the farm. A boy running after the ball came near the fence and shouted for the ball. But when there was no response, he managed to creep into the farm to get the ball. The dog which was surreptitiously waiting attacked the boy and badly mauled him. The boy’s parents filed a suit against Ramlal. 

1. Ramlal is not liable, since the fence and the dog are lawful means of protecting the property.
2. Ramlal is not liable for the boy trespassing and getting badly injured in that process.
3. Ramlal is liable, since an ordinary barking dog would have sufficed for the purpose.

(NLS, 2004)

Type 2

This is a variant of the classical legal reasoning question – the only difference is that there are multiple questions based on the same principle, Such questions can save you some time, since you are not required to spend time on reading and analyzing a new principle for every problem, However, they can also test your understanding of the principle in greater depth, by testing how you apply the principle to different fact situations.

Principle of Law

“If, as a result of carelessness, one injures another, he is legally liable to the injured victim for resulting damages, unless the victim’s own carelessness also contributed to causing the accident. However, if one becomes aware that another has, through his own fault, placed himself in peril of which he is unaware or from which he cannot extricate himself, and the one so aware can still avoid injury to the helpless victim through the exercise of reasonable care, the one so aware will be liable for injuries which he causes the helpless victim through failure to take advantage of this ultimate opportunity to save the victim from such injuries”.

• Chatterjee carelessly left a pole protruding across a public road. Mukherjee, riding a motorcycle, saw the pole but, since he was driving at a speed substantially above the posted limit, he collided with the pole and was injured.

In an action by Mukherjee against Chatterjee.

1. Mukherjee will win because if it had not been for Chatterjee’s carelessness, Mukherjee would not have been injured. 
2. Mukherjee will because Chatterjee had an opportunity to prevent the injury by putting up a warning. 
3. Mukherjee will lose because he was already breaking the law by driving too fast. 
4. Mukherjee will lose because if he had not been speeding, he would not have been injured.

• Dwivedi ignored a red light and drove his car onto the railway tracks as a train was approaching, The motor stalled and Dwivedi did not have sufficient time to get the car across the tracks. Trivedi, the railway engine drive, saw Dwivedi and could have stopped the train had he not been waving at a group of girls jogging along a road beside the track. They collided and Dwivedi was injured. In an action by Dwivedi against Trivedi. 

1. Dwivedi will win because he could not get to safety in time. 
2. Dwivedi will win because Trivedi was operating the train in a careless manner.
3. Dwivedi will lose because Trivedi was relying on the warning signal. 
4. Dwivedi will lose because he did not obey the red signal.

(NLS, 1988)

Type 3  

Multiple Principles

There could be two, three or even four principles in such questions. These questions are often provided to unsettle students – while the principles themselves are not complicated, many students panic when they see so many principles for every problem, which interferes with their ability to think clearly and solve the problem. Let’s take some examples:

• Example 

Principle – 1: Mischief is an injury to property with the intention of causing wrongful loss to any person or public.

Principle- 2: The person to whom the loss is wrongfully caused by mischief need not be the owner of the property himself.

Facts:

A has leased his house to 8 for 5 years. After one year. A feels the need for the house and requests B to vacate the house, but B refuses. A in order to get B to vacate the house, causes fire to it, but B with the help of the neighbours quickly extinguishes the fire before it could really damage the property.

1. A is guilty of mischief. 
2. A cannot be guilty of causing mischief. 
3. A is not guilty of mischief as there was no damage. 

(NLS, 2000)

• Example (three principles) 

Principle – 1: No consideration – No contract

Principle – 2: Consideration is something done or abstinence by a party at the desire of another party

Principle-3: Consideration must have value in the eye of law.

Fact:

Innovative Education Trust manages a School named Bharat Vidyaniketan. Ashok, the parent of a student in the school suggested to the Trust that it could build a new library building for which he would bear a part of the cost. The school authority accepted the suggestion and started construction of the building. Ashok having suffered a loss in business, now refuses to pay the part he had offered earlier.

Which of the decisions you think is spproprisis?

1. Ashok is not liable topsy as the building was for the benefit of the school and he has nothing to do with it by way of enjoying any benefit.
2. He is liable to pay a Ashok’s child is a student in the same School.
3. Ashok is liable to pay because based upon his promise, the School authority started construction of the building. 

(NLS 2000)

Type 4 

Questions without principle

These questions are extremely rare, although in 1997 all the legal reasoning questions in the NLS entrance exam did not have a principle. Except for that question paper, there are approximately 7 – 8 questions in all the other years which did not have a principle.

How should you go about solving a legal reasoning question which does not have a principle? Attempting these questions requires you to use prior legal knowledge, However, familiarity with the most commonly asked principles and practicing other types of questions will usually equip you with the necessary knowledge of relevant legal principles, such questions are usually not framed on the basis of ‘new legal principles.

How should you prepare for these questions? It is impossible to learn all applicable principles of law (even for lawyers), and hence apart from practicing past years’ question papers, there is no other way to prepare for these questions efficiently, You will waste too much time if you start preparing for such questions. In case such a question comes in an exam, try to find the best possible answer using your existing knowledge. If you are not sure about an answer to such a question, mark the most appropriate option and move on to the next question.

• Example

A minor mortgaged her house and received the advance. The mortgagee files a suit against the minor to recover the money advanced by him. The minor mortgagor takes the plea that the suit is not maintainable as there was no valid contract, decide.

1. An agreement with minor is absolutely void.
2. It is voidable at the option of the parties. 
3. The minor is liable to return the money received by him as advance.

(NLS 1999)

• Example

A goes to grocery shop of B which he frequents quite often for his requirements. 

A: I want ten bags of old rice.

B: Here is the rice you are looking for.

A buys ten bags of rice from Band subsequently discovers that the rice supplied is not really old. A files a suit against B.

1. A will not succeed, because B did not promise him to supply old rice.
2. A will succeed, because 8 had agreed to supply the rice of A’s specifications.
3. A will not succeed, because A should have verified the quality of rice himself.

(NLS 1993)

Type 5 

Choose the most unacceptable’ option as the answer.

Sometimes, a question will require you to mark the least likely option, as the answer. Unlike other questions where you have to choose the correct outcome, in this question you have to follow the opposite process and select the wrong outcome.

• For example:

Principle: Uncertain agreements are not enforceable by law,

Fact: Allauddin is a dealer in all types of edible oils. Vimal buys from Allauddin mustard oil and coconut oil, On 6 June. Vimal sent a telegram asking Allauddin to send 100 tonnes of oil which was not supplied by Allauddin. Vimal filed a suit against Allaudin.

Probable reasons were given by Allauddin

1. Which oil is to be supplied was not mentioned though Vimal used to buy coconut oil in previous years in the month of May when this order also was placed.
2. The price of the oil to be supplied is unascertainable because he was supplied at price different from price charged from others in an earlier period.
3. Prices of all oils had risen considerably and it was not possible to supply at the quoted price.
4. The oil was to be bought by Vimal for the purpose of export which was later banned by the Government.

Which among the above will not be accepted?

1. A, B, C, D  
2. B, C, D  
3. C, D

(NLS 2000)

Type 6

Question containing one principle, which tests whether a situation under another legal rule is compatible with it. Unlike other situations which test your application of law to factual situations, this kind of question may require you to test whether a specific provision of law is inconsistent with an overarching rule.

• Under Indian constitution, everybody shall be equal before the law The Income Tax Act happens to provide that those whose annual income is up to Rs. 60,000/- shall pay 10% of their income as tax; and those whose annual income exceeds Rs. 60,000/- shall pay the tax at the rate of 20%. Those citizens whose annual income exceeds Rs. 60,000/- challenge the Legislation on the ground that it is a violation of the principle of equality before law. 

1. They will succeed, because the law discriminates against the people who earn more than Rs. 60.000/- per annum. 
2. They will not succeed, because the people who earn more than Rs. 60,000/- are not equal to the people who earn less than Rs. 60,000/-. 
3. They will not succeed, because this law enables the Government to equalise the incomes of all the people in the country. 

(NLS 1993)

The question below asks you to comment on whether a particular provision of the Income Tax Act is inconsistent with the Constitution, Note that it also requires you to know that the Constitution is superior to all other laws, and any law inconsistent with a principle laid down by the Constitution is invalid.

Type 7

 Critical reasoning-type questions (without principles), but with legal rules instead of assertions.

•  All contracts are agreements. All agreements are accepted offers. 

Which of the following derivation is correct?

1. All accepted offers are contracts.
2. All agreements are contracts.
3. All contracts are accepted offers.
4. None of the above.

(CLAT 2008)

•  No minor can enter into a contract of work. Working in a shop can be done only by a contract. 

Which of the following derivation is correct? 

1. A minor cannot working shop.
2. A shop cannot contract with a minor. 
3. There cannot be a contract to which minor is a party.
4. None of the above.

(CLAT 2008)

•  India is a principle State, and therefore, it will not attack other countries, 

1. Only a principled State will not attack other countries, 
2. No principled state will attack other countries, 
3. All who attack other States are not principled. 
4. Only unprincipled States will attack other states.

(NLS 1989)

•  He was convicted by the Court for theft.

1. All who commit theft will be convicted by court. 
2. All who are convicted by courts have committed theft. 
3. None, but who commit theft, will he convicted by courts. 
4. Most who commit theft will be convicted by courts, NLS 1383.

Type 8

Reading Comprehension type questions containing legal terms, and in other sections of the question paper. Sometimes, a question under the logical reasoning section may be based on a legal text – the question below (which was under the logical reasoning section) appears to test reading comprehension skills.

•  Contracts can either be written or oral agreements, But certain agreements such as conveyance of land in contradistinction to scale of goods must be in writing to be enforceable, When a judge refuses to rule in favor of a plaintiff in a suit brought on an oral contract when it is required to be in writing, he does not deny the existence of the contract. Rather, the court refuses to recognize the agreement since it was not properly formalized.

The argument above is primarily concerned with the distinction between 

1. Buyers are and sellers, 
2. Contract for sale of land and contract for sale of goods, 
3. Agreement and written record of agreement.

(NLS 1995)

Type 9

Questions with independent outcome and reason – these separate the outcome of the problem (e.g. whether someone is liable or not) and the reasons for the outcome. Choosing the correct option now takes three steps – first the correct outcome should be chosen, then the reason, and last, matching the outcome with the reason. This makes choosing the correct option more time consuming and difficulty, but there are ways to solve such questions more quickly.

•  Principles 

1. The owner of a land has absolute interest on the property including the contents over and under the property.
2. Water flowing below your land is not yours though you can use it. 
3. Any construction on your land belongs to you. 
4. All mineral resources below the land belongs to the State. 

Facts 

There is a subterranean water flow under Suresh’s land surface. Suresh constructed a huge reservoir and drew all subterranean water to the reservoir. As a result, the wells of all adjacent property owners have gone dry. They demanded that either Suresh must demolish the reservoir or share the reservoir water with them.

Proposed Decision 

1. Suresh need not demolish the reservoir. 
2. Suresh has to demolish the reservoir. 
3. Suresh has to share the water with his neighbours. 
4. The Government can take over the reservoir.

Possible Reasons

1. Water cannot be captured by one person for his personal use. 
2. The Government must ensure equitable distribution of water. 
3. Whatever is under Suresh’s land may be used by him. 
4. Suresh has to respect the rights of others regarding water.

Your decision with the reason

1. (a) (iii)
2. (b) (i)
3. (c) (iv)
4. (d) (ii)

Type 10

Multiple principles and single set of facts but with several sets of options (no independent question). This problem features multiple sets of options but it does not have an independent question for each set. You just have to choose the correct option based on the principle, for each set.

• Facts

Hanuman Stores sent certain items in horse carriage to a customer’s house, which happened to be by the side of a main road and nests School Zone, The driver of the carriage delivered the items to the customers and went inside the house to collect the receipt, leaving the carriage unattended on the road. Some naughty children of nearby school threw stones at the horses.

The horses ran in confusion and they were about to run over an old woman. A traffic police, at great risk to his life, Somehow seized the horses and stopped the carriage. He suffered serious personal injuries in the process, Me policeman seeks compensation from Hanuman Stores.

Principles:

1. Whoever is under a duty of care to another shall be liable for any injury to the latter directly resulting from the breach of that duty. 
2. Harm suffered voluntarily does not constitute legal injury.

Answers:

1. (a) Hanuman stores is not liable, because they do not owes duty of care to the old woman or policemen.

(b) Hanuman Stores is liable, because they owe a duty of care to all the users of the road.

(c) Both old woman and policeman could have taken reasonable care to protect themselves.

1. (a) Hanuman Stores is not liable because some naughty children scared away their horses.

(b) The School management ought to have taken care to discipline the children.

(c) The Hanuman stores is liable because the driver ought to have anticipated the naughty conduct on the part of the children.

1. (a) The policeman cannot succeed because he suffered injury voluntarily.

(b)The policeman can succeed, because for owed a duty of care to an old woman.

(c) The old woman was under duty to take care of herself.

(NLS 1983)

Type 11

Single fact situation with different principles for each question on the facts, There is one set of facts with multiple questions. Each question is based on a legal principle. You have to choose the correct legal conclusion.

Mrs. Anand went to Malazan Antique shop to buy a vase, Mahazan showed her a vase and told her that it was of the Gupta period. Actually is was older and much more valuable than Mahazan thought. He added, and believed’, that the vase was “absolutely unbreakable”, Mrs. Anand said she did not care whether the vase was of the Gupta period, she bought it.

Leaving the shop, she hailed a taxi driven by suresh, an employee of the Capital Taxi Company. Suresh had just completed his duties for the day. However, he offered to drive Mrs. Anand home for his usual fee. Capital Taxi company had a firm policy prohibiting its employees from carrying passengers while off duty.

Suresh carelessly drove and took a turn without signaling. The taxi rammed into a truck carrying gasoline, Mrs. Anand was thrown to the floor of the taxi and injured her back, The vase smashed.

Principle of Law – I

“Fraud consists of a misrepresentation of existing fact upon which the defendant intends that the plaintiffs will rely, and upon which the plaintiff justifiably relies to his detriment”

• In a suit for fraud brought by Mrs. Anand against Mahajan.

1. Mrs. Anand will win because the vase was smashed.
2. Mrs. Anand will win because the vase was not of the Gupta Period. 
3. Mrs. Anand will lose because Mahajan believed that the vase was unbreakable. 
4. Mrs. Anand will lose because she did not care whether the vase was unbreakable.

Principle of Law — II

“An employer is liable for injuries caused by the careless acts of an employee, committed in the course of his employment”.

• In a suit brought by Mrs, Anand against Capital Taxi company for injuries caused by the careless driving of Suresh.

1. Mrs. Anand will win because Suresh was Capital’s employee and his careless driving caused her injury.
2. Mrs, Anand will win because Suresh charged her the usual fee, even though lie was off duty.
3. Mrs. Anand will lose because suresh was off duty.
4. Mrs, Anand will lose because Capitol had a firm policy prohibiting its employees from carrying passengers while off duty.

(NLS 1988) 

Type 12

Multiple principals, with different scenarios of the same facts. This is an advanced problem type. You have to choose which of the principle apply, or how they collectively apply. You may have to make legal inferences based on the facts. The questions may also test you on different scenarios thrown into the same situation (i.e. variations of the same facts).

Rules

1. The fundamental right to freedom of a c the right to form an association as well as not join an association.
2. The fundamental right to freedom of association also includes the freedom to decide with whom to associate.
3. The fundamental right to freedom of association does not extend to the right to realize the objectives of forming the association.
4. Fundamental rights are applicable only to laws made by or administrative actions of the state and do not apply to actions of private persons.
5. Any law in contravention of fundamental rights is unconstitutional and therefore cannot bind any person.

Facts 

Gajodhar Pharmaceuticals, a private company, offered an employment contract of two years to Syed Monirul Alam, One of the clauses in the employment contract provided that Syed Monirul Alam must join Gajodhar Mazdoor Singh (SMS), one of the trade unions active in Gajodhar Pharmaceuticals,

• Decide which of the following propositions can be most reasonably inferred through the application of the stated legal rules to the facts of this case:

1. The employment contract offered to Monirul Alam to join GMS is legal as it does not restrict his freedom not to join any association. 
2. The condition requiring Monirul Alam to join GMS cannot bind him as it impinges on his freedom not to join any association.
3. Syed Monirul Alam cannot claim a fundamental right to freedom of association against Gajodhar Pharmaceuticals and therefore, the contract would bind him even though his freedom of association is restricted. 
4. The employment contract infringes syed Monirul Alam’s freedom to decide with whom to associate and thersfors is legally not enforceable.

• If Parliament enacts a law which requires every employee to join the largest trade union in their workplace mandating syed Monirul Alam to join GMs, then: 

1. Such a law would merely govern private action to which fundamental rights do not apply.
2. Such a law would not curtail any individual’s right to freedom of association,
3. Neither the employment contract, nor the law of the parliament would be enforceable as they would curtail the freedom of association.
4. The law of parliament would violate an individual’s freedom not to join any association and therefore be unconstitutional.

• If Parliament enacts is law that requires trade union to open its membership to all the employees, then:

1. Such a law would not infringe any fundamental right to freedom of association.
2. The law of the parliament would curtail an individual’s right not to join any association. 
3. Such a law would curtail the union member’s’ right to decide with whom they would like to associate.
4. Such a law would render the employment contract offered by Gajodhar Pharmaceuticals to Syed Monirul Alam unenforceable.

(CLAT 2011)

Type 13 

Ability to arrive at the most reasonable/just inference from a legal rule (requires application of the principle and exercise of some judgment)

Rule: When a State undertakes any measure, the effects of the measure must be the for all those who are affected by it.

Fact

100 mountaineers embarked on an extremely risky climbing expedition in Leh, Weather conditions worsened five days into the expedition and the mountaineers are trapped under heavy snow, The government received information of this tragedy only two weeks after the unfortunate incident and has only 24 hours in which to send rescue helicopters, Weather stations across the world confirm that this particular region of Leh will experience blizzards of unprecedented intensity for almost two weeks after this 24 hour window rendering any helicopter activity in the region impossible and certain death for anyone left behind. The government has only five rescue helicopters with a maximum capacity of 50 people (excluding pilots and requisite soldiers) and these helicopters can fly only once in 24 hours to such altitudes.

As the Air Force gets ready to send the helicopters, an emergency hearing is convened in the Supreme Court to challenge this measuress this would leave 50 people to die.

• Question – If you were the judge required to apply the Rule, you would decide that: 

1. As many lives must be saved as possible. 
2. If everyone cannot be rescued, then everyone must be left behind. 
3. A measure cannot be upheld at the cost of 50 lives.
4. It must be left to those who are trapped to decide if they want half amongst them to be saved and leave the rest to die.

Type 14 

Questions testing consistency of the options with several principles. These questions also test your application of multiple principles to different scenarios.

Rule A: When a State undertakes any measure, the effects of the measure must be the same for all those who are affected by it.

Rule B: When a State undertakes any measures, everyone affected must have an equal thern Esse benefit from it.

• As the government prepares to send in rescue helicopters, which option would be acceptable only under Rule B and not Rule A:

1. A lottery to choose the 50 survivors excluding those diagnosed with terminal illnesses from participating in the lottery.
2. A lottery to decide the 50 survivors with single parents of children below five years of age automatically qualifying to be rescued.
3. The 50 youngest people should be rescued. 
4. None of the above. 

• Choosing 50 survivors exclusively by a lottery would be:

1. Permissible under Rules A and B. 
2. Impermissible under Rule A and B. 
3. Permissible only under Rule B.
4. Permissible only under Rule A.

•  If the government decides that it will either save everyone or save none, it would be:

1. Permissible under rules A and B.
2. Impermissible under Rules A and B.
3. Permissible only under Rule A.
4. Permissible only under Rule B.

(CLAT 2011)

Type 15

Multiple principles with scenario-testing, which test your ability to draw legal inferences. These inferences are not limited to deciding whether a particular person will be liable or not, but could require you to conclude whether a particular facts can be established based on the legal principle. In this way, these questions skills which are similar to those which are tested by reading comprehension questions.

Problem 7 (For questions 182 to 185) 

Rules

1. A person is an employee of another if the mode and the manner in which he or she carries out his work is subject to control and supervision of the latter.
2. An employer is required to provide compensation to his or her employees for any injury caused by an accident arising in the course of employment. The words in the course of the employment mean in the course of the work which the employee is contracted to do and which is incidentally it.

Facts

Messers. Zafar Abidi and Co. (Company) manufactures bidis with the help of persons known as ‘pattadar’. The pattadars are supplied tobacco and leaves by the company and are required to roll them into bidis and bring the bidis back to the company. The pattadars are free to roll the bidis either in the factory or anywhere else they prefer. They are not bound to attend the factory for any fixed number of bidis. The Company verifies whether the bidis adhere to the specified instructions or not the pays the pattadars on the basis of the number of bidis that are found to be of the right quality. Aashish Mathew is one of the pattadars of the company. He was hit by a car just outside the precinct of the factory while he was heading to have lunch in a nearby food-stall, Aashish Mathew has applied for compensation from the company.

•  Which of the following statements can most plausibly be inferred from the application of the rules to the given facts:

1. Aashish Mathew is an employee of the Company because the latter exercises control over the manner in which Aashish Mathew carries out his work.
2. Aashish Mathew is not an employee but an independent contractor as he does not have a fixed salary.
3. Aashish Mathew is an employee because the company exercises control over the final quality of bidis.
4. Verification of the quality of bidis amounts to control over the product and not control over the mode and method of work and therefore, Aashish Mathew is not an employee of the company.

•  In case the pattadars were compulsorily required to work in the factory for a minimum number of hours every day, then it would be correct to state that:

1. The injury was not caused by an accident in the course of employment.
2. Aashish Mathew would not be an employee as the company would have still not exercised control over the manner of work.
3. The injury suffered by Aashish Mathew could not be held to be one caused by an accident.
4. Stipulations on place and hours of work relate to manner and mode of work and therefore, Aashish Mathew would be held to be an employee of the Company.

•  According to the facts and the rules specified, which of the following propositions is correct:

1. The Company is not liable to pay compensation as the injury to Aashish Mathew was not caused by an accident arising in the course of employment.
2. The company is liable to pay the compensation.
3. Since the injury did not arise in the course of employment, the Company would not be liable to pay the compensation even though Aashish Mathew is an employee of the company.
4. The company is liable to pay the compensation as Aashish Mathew is a contracted pattadar with the company.

Answer key – Types of Legal Reasoning Questions

Type 1 

1. (d)
2. (c)

Type 2 

1. (b)
2. (a)

Type 3

1. (a)
2. (c) 

Type 4

1. (a)
2. (b)

Type 5

1. (b)

Type 6

1. (c) 

Type 7

1. (c) 
2. (c)
3. (b)
4. (a)

Type 8

1. (c)

Type 9

1. (b)

Type 10

1. (II)

Type 11

1. (c) 
2. (d)

Type 12

1. (d)
2. (c)
3. (a)

Type 13

1.  (b)

Type 14

1. (d)
2. (b)
3. (d)

Type 15

1. (d)
2. (d)
3. (c)

How to answer legal reasoning questions with multiple principles

Question paper setters are interested in testing whether you possess the skills to be able to select, compare, and understand the relationship between different principles to arrive at a conclusion, In fact, this is the task of a judge when he decides a case – he has to choose, from multiple legal rules (the rules correspond to the principles in a legal reasoning problem), the ones that are applicable to a particular case. He may even have to combine multiple rules together to arrive at an outcome, Similarly, the task of a lawyer is to establish why a particular combination of legal rules (or a select few of them) should be applied to the case at hand, leading to a favourable outcome for the client.

Question paper setters Want to ascertain whether you possess such abilities, at least in an elementary form, Therefore, several legal reasoning problems nowadays feature multiple principles. When there are multiple principles in a problem, you have a more sophisticated task at hand – apart from dealing with each individual principle as explained earlier in this chapter, you will also need to evaluate the relationship between various principles.

Therefore, in this chapter we will examine the different kinds of relationships principles can have With one another, and how to solve such questions, from past years’ papers.

Relationship 1 – Where one principle is an explanation of the other

In this situation, the two principles should be essentially read together as one principle, Such a question is similar to a legal reasoning question with one principle only. Let’s take an example:

Facts:

The Consolidated Motors was a firm dealing with second hand cars, Suresh came to the office of the firm and offered to sell their cars, provided he would get 8% commission on cars sold by him. The Consolidated Motors agreed to the proposition, One day, Suresh took out a car for the purpose of demonstration to a prospective silent and in the course of demonstration; he knocked down Ramesh and injured him. Ramesh is seeking legal remedy. The main issue is whether Suresh is an agent of Consolidated Motors.

Principles:

1. A Principal shall be liable for all the acts of his agent done in the course of employment.
2. A shall be considered as an agent of 5, provided that:

1. B remunerates A and  
2. 5 has direction and control over what A is doing.

Answers:

1. Suresh is the agent of Consolidated Motors, because he gets remuneration by way of commission.
2. Suresh is not the agent of Consolidated Motors, because the commission is not the same as remuneration.
3. Suresh is not the agent of Consolidated Motors because the latter do not have control over his activities.

(NLs 1989) 

Ans:(c) 

Analysis

In this question there is essentially only one principle – that the principal is liable for the acts of the agent done in the course of employment. The second principal merely explains under which circumstances a person is considered agent to be an agent of another person that is, the principal, In order to arrive stan answer, you will have to check whether two conditions, i.e., the first – of remuneration and the second, that of direction and control area applicable to the facts. You will realize that the second condition is not satisfied – Consolidated Motors does not exercise direction and control over how Suresh is selling their cars, Thus, you can infer that suresh cannot be considered an agent of Consolidated Mo . Therefore, Option (c) is the most appropriate answer,

Relationship 2 – where you have to choose which of various principles is applicable

Let us take an Example. 

Facts: 

Mohan promised to take sunder cut fors dinner in TAJ COROMANDEL. Even after two weeks, Mohan did not fulfill the promise, Sunder wants to sue Mohan to enforce that promise.

Principles:

1. An agreement enforceable in a court of swiss contract.
2. In order for an agreement to be enforceable in a court of law, there must be a meeting of minds between both the parties.
3. Parties to a contract should do should do something for the other party, The obligation to do something for the other party is mutual. This is called ‘consideration and absence of consideration renders the contract unenforceable.

If Sunder goes to court:

Answers:

1. He can compel Mohan to buy him dinner at Taj Coromandel.
2. He can recover the value of dinner from Mohan, 
3. This promise will not be enforced by a court of Law, as there is no consideration from Sunder.
4. None of the above answers is correct. 

Ans:(c)

(NLS, 1990)

Analysis

What is the relationship between between the principles? The second and third principles both explain the circumstances when the first principle takes effect, that is, when a contract comes into existence. In order to solve the problem, you have to analyze whether there was a contract between the parties. For this, you need to identify whether there was a meeting of minds between the parties, and whether there was consideration, In this case, there is no information in the facts to state that there was no meeting of minds – however, it is clear that there was no consideration, as a promise to take Sunder to Taj was unilateral, without any consideration.

Relationship 3 – Where you have to interpret two or more principles consistently or harmoniously to arrive at a conclusion

Consider the following example:

Maniyan was prosecuted for an offence of murder and he was acquitted. Thereafter additional evidence came to light pointing to Maniyan’s complicity in the same offence. So the police want to prosecute him again.

Principles:

1. Under Indian Constitution, Ifa person is convicted of an offence, he cannot be prosecuted again.
2. Under Criminal Procedure Code, if a person is prosecuted in an offence and if the prosecution results either in an acquittal or in conviction, then he cannot be the prosecuted for the same offence.

Answers:

1. Maniyan cannot be prosecuted as he enjoys the right under our Constitution not to be prosecuted twice for the same offence.
2. Maniyan cannot be prosecuted as he enjoys the right under Criminal Procedure Code not to be prosecuted twice for the same offence.
3. Maniyan cannot be prosecuted as he is protected both by the Constitution and criminal Procedure Code. 
4. None of the above answers is correct.

(NLS, 1990)

Analysis 

What’s the correct answer according to you?

As per the Constitution, a person cannot be punished twice, while as per the Criminal Procedure Code, a person cannot even be prosecuted twice. Which one will prevail? Can both the principles be interpreted together in a consistent manner, so that none of them negates or overrides the other?

Yes – if a person cannot be prosecuted twice, it safeguards the constitutional principle that he cannot be convicted twice. Since there can be no conviction without prosecution, Hence, the Criminal Procedure Code provision, which affords wider protection, is consistent with the Constitution. While he is also protected by the Constitution of India, the protection under the Constitution is not sufficient to prevent his prosecution, for which we have to rely on the Criminal Procedure Code, Hence, Option (c) is not the correct answer, Therefore, in this case, Option (b) is the most appropriate answer – he cannot.

Relationship 4 – Where you have to apply two different principles in parallel

Principle-1: Master is liable for this act of this Employee/Servant.

Principle-2: The husband or the wife are not responsible for any commission of wrong on each other.

Fact: 

H is s manager of a Hotel belonging to X. Because of the negligence of H, a folding chair fell from the first floor to the ground floor injuring the Receptionist of the Hotel, named W who is the wife of H, W asks for Compensation from X and H.

1. Both X and H are responsible to compensate W. 
2. X is only responsible to compensate W. 
3. No one is responsible to compensistS W.

(NLS 2000) 

Ans:(b) 

Analysis

While this is an extremely easy question and you can arrive at the correct answer by simply applying the principles in a straightforward manner, many aspirants get this wrong. Why is Option (b) the correct answer? Option (b) states that only X (i.e., the hotel owner) is liable, Recall the basic rule – you are expected to apply the principles as they are and no extraneous considerations should be applied. If you apply the first principle, you will come to the conclusion that the master, i.e., X is listle, Now, if you apply the second principle, you will realize that H, being the husband, is not liable, Therefore, as per this option, we reach a conclusion after applying both the principles. Hence, this is the correct answer.

In order to confirm our choice, let’s also examine the other options and see why they are not correct, Option (s) (both X and Hare responsible) is not the correct answer, as it is contrary to the second principle – which states that the husband is not responsible for wrongs committed against the wife. Many aspirants tend to choose this answer, Sometimes, they believe that since this is s wrong not committed in the course of a marital relationship, but in the workplace, so the principle that the husband should not be responsible to the wife is not applicable, However, is that relevant? Does the principle carve out any exception to the rule that the husband is not liable for wrongs committed against the wife? Does the principle state that this rule only applies to a particular set of actions and not otherwise?

While solving a legal reasoning problem you are supposed to apply the principles as they are, but if you choose option (a), you end up ignoring the second principle completely, Hence, it is not the correct answer.

What about Option (c), which states neither person is liable? Why would you choose option (c)? Some of you might believe that since the husband, who is the primary doer of the wrong, is not liable (after application of the second principle), somebody else cannot be vicariously held husband liable for the wrong. However, where is this understanding coming from? Do any of the principles state this? Let’s examine how you have applied the principles when you choose that neither the husband nor the manager is liable – while you apply the second principle, you end up neglecting the first. The purpose of the legal reasoning problem was to apply both the principles, Hence, Option (c) is also not the correct answer.

Relationship 5 – where one of the principles carves out an exception to a principle, or stipulates conditions to limit the applicability of another principle

Example 1

Facts: 

Rajiv is a servant of Jawaharlal, On his way to Jawahar’s house to report for duty, he goes to have a cup of coffee, There he sees Singh and accuses Mr. Singh of being a dishonest person, Mr. Singh wants to sue Jawaharlal, as Rajiv is Jawahar’s servant.

Principles:

1. Master is liable for the wrongful acts committed by servants, in the course of their employment if third parties suffer damages in consequence.
2. However the master is not liable if the wrongful act was committed by the servant has no connection whatsoever with the servant’s contract of employment.
3. If a person by an act lowers the reputation of another in the eye of right thinking people, then the person who suffered loss of reputation can sue for damages.

Answers:

1. Jawaharlal is liable because Rajiv defamed Singh.
2. Jawaharlal is not liable as the defamation was not in the course of Rajiv’s employment. 
3. Rajiv is liable even though the defamation was not in the course of employment.
4. None of the above answers is correct.

(NLS, 1990)

Analysis

In this situation, the third principle explains the wrongful act under consideration – i.e., defamation, The first principle makes the master liable for wrongful acts of the servant, The second principle carves out an exception – the master is not liable if the servant’s act has no relation with the contract of employment.

What is the answer? Was the defamation committed in the course of employment? No,

Did it have any connection with the Rajiv’s contract of employment? No. Therefore, Option (b) is the correct answer.

Example 2 

Facts:

Krishna was walking on a lonely road. Maniyan come with a knife and said to Krishna, “Your life or your purse”, Krishna pulled out his revolver. On seeing it, Maniyan ran. Krishna shot Maniyan in his legs.

Principles:

Answers:

1. Krishna will not be punished, as there was danger to his property.
2. Krishna will not be punished, as the force he used was proportionate to the apprehended injury.
3. Krishna will be punished, as the force employed was disproportionate to the apprehended injury.
4. As Maniyan ran to escape there was no longer a threat to Krishna’s property, So Krishna will be punished.

(NLS 1990)

Analysis

In this case, the second principle restricts the scope of the first principle, that a person must use reasonable force – it adds the requirement of proportionality as well, Once Maniyan ran, there was no need for Krishna to take any further action, Since he shot Maniyan despite his running away, we can conclude that Krishna used disproportionate force. Hence, the correct option is (c).

Relationship 6 – Understanding relationships in scenario-based questions

CLAT 2011 featured several questions which tested people on different scenarios of the same broader fact situation, Such questions feature many principles – there were as many as 5 or 6 principles in CLAT 2011. Each scenario introduces a minor variation in the overall fact situation, You are required to determine which principles will be applicable in the given scenario and apply them to the facts. These questions are often long, so reading and understanding the question can take significant time, Any other line that we should add)?

To answer these questions correctly, you need to develop the ability to select the principles which will be applicable in light of a particular fact situation very quickly, Often, each option is deliberately drafted to correspond to one principle or another. Therefore, unless you have been able to decide which principle will be applicable in a particular situation, you will not be able to choose the correct answer simply by looking at the options.

List’s tasks are some examples: 

Example 1

1. The fundamental right to freedom of association includes the right to form an association as well as not join an association. 
2. The fundamental right to freedom of association also includes the freedom to decide with whom to associate. 
3. The fundamental right to freedom of association does not extend to the right to realize the objectives of forming the association. 
4. Fundamental rights are applicable only to laws made by or administrative actions of the State and do not apply to actions of private persons. 
5. Any law in contravention of fundamental rights is unconstitutional and therefore cannot bind any person.

Facts 

Gajodhar Pharmaceuticals, a private company, offered an employment contract of two years to Syed Monirul Alam, One of the clauses in the employment contract provided that Syed Monirul Alam must join Gajodhar Mazdoor Singh (GMS), one of the trade unions active in Gajodhar Pharmaceuticals,

Question 1 

Decide which of the following propositions can be most reasonably inferred through the application of the stated legal rules to the facts of this case:

1. The employment contract offered to Monirul Alam to join GMS is legal as it does rot restrict his freedom not to join 3ny association. 
2. The condition requiring Monirul Alam to join SMS cannot bind him as it impinges on his freedom not to join 3ny association. 
3. Syed Monirul Alam cannot claim a fundamental right to freedom of association against Gajodhar Pharmaceuticals and therefore, the contract would bind him even though his freedom of association is restricted. 
4. The employment contract infringes Syed Monirul Alam’s freedom to decide with whom to associate and therefore is legally not enforceable,

Analysis:

Is the employment contract legal? Is the condition in the employment contract binding? Principles A, B and D gre the ones that are relevant to determine these questions. The employee has the right to freedom of association as per Principle A. This right includes the freedom is decide with whom he wishes to associate. In the present scenario, the employment contract mandatorily requires him to associate with a particular trade union. Does this violate his freedom of association? Note that his freedom is restricted by means of an employment contract with a private entity, and as per Principle D, fundamental rights do not apply to actions of private entities. Therefore, the correct answer is Option ©

Question 2 

If Parliament enacts a law which requires every employee to join the largest trade union in their workplace mandating syed Monirul Alam to join SMS, then: (a) Such a law would merely govern private action to which fundamental rights do not apply.

(b) Such a law would not curtail any individual’s right to freedom of association, (c) Neither the employment contract, nor the law of the parliament would be enforceable as they would curtail the freedom of association. (d) The law of parliament would violate an individual’s freedom not to join any association 3nd therefore be unconstitutional,

Analysis 

What is the correct answer according to you? After you have solved the previous question, this question should be very easy to Check. In the previous question, the employment contract was entered into with a private entity, so fundamental rights could not be invoked. However, in this question, we are considering a law made by Parliament. Recall from Principle D that fundamental rights are applicable to laws made by the state. Since the law mandatorily requires an employee to join the largest trade union in the workplace, it violates the freedom of the employee to choose the persons with whom he wishes associate, as per Principe B.

Question 3

If Parliament enacts a law that requires trade union to open its membership to all the employees, then 

1. Such a law would not infringe any fundamental right to freedom of association.
2. The law of the parliament would curtail an individual’s right not to join any association. 
3. Such a law would curtail the union member’s’ right to decide with whom they would like to Associates. 
4. Such a sv would render the employment contract offered by Gajodhar Pharmaceuticals to Syed Monirul Alam unenforceable.

Ans: (c)

(CLAT 2011)

Analysis

What is the correct answers.according is you? Since the law requires the union to make the existing members of the union will not be able to select or determine which employees join the union, and will have to accept whoever wishes to join. Therefore, this will impact the right of the union members to choose whom they associate with.

Principle D makes it clear that the fundamental right to freedom of association applies only to actions of the state, and Principle Ecclesiastes that if a law is in violation of fundamental rights, it is invalid. Applying these two principles together, we can conclude that the sw will be invalid. However, this will have no impact on the centract, since fundamental rights are not applicable to actions of private entities (as per Principle D)

Further explanation

Sometimes, to arrive at the correct answer, you may need to eliminate the other options as well. Let’s see how the other options fare when matched to the principle.

Option (a) is incorrect-as we just demonstrated, the right to freedom of association of the union members will be infringed.

Option (b) is not applicable – the swimsds by Parliament has only required the union to open its membership to everyone, but has not required employees to mandatorily join a union. The option is based on an incorrect interpretation of facts.

What about Option (d)? Option (d) is contradictory – the employment contract (requiring the employee to join a specific trade union) will actually be consistent with the law, which requires trade unions to open membership to all employees who wish to join,

Moreover, as Principle D states that fundamental’ rights do not extend to actions of private entities, the validity or invalidity of the law will have no impact on the employment contract, which is entered with a private entity. Thus, Option (d) is incorrect.

How to answer legal reasoning questions with one principle

Solving a legal reasoning problem boils down to one skill- the ability to interpret and apply principles to the facts, efficiently and accurately. This is the core of a legal reasoning problem, If you can do this consistently, you can ace the legal reasoning section of a law entrance question paper. Understanding and applying a principle to the facts can be a very sophisticated process, and does not receive the importance it deserves, by law aspirants and even at coaching classes. Coaching classes ensure that students practice legal reasoning problems endlessly – sometimes students end up practising the same questions again and again, which leads to theirs cramming the correct answers to questions. However, this exercise is fruitless, unless the same question (with the same facts, principles and options) reappears, without any variation in the exam, there is no benefit from such practice.

Therefore, no matter how much they practice, unless they figure out the ‘correct techniques’ of applying the principles, they will never get answers correct. In fact, the very purpose of practice is defeated by this process, because you are no longer practicing with the objective of learning and fine-tuning the technique, but you are ending up cramming the correct answer.

Even While attempting mock tests, most CLAT aspirants are surprised to see a huge difference in their actual marks scored in the legal reasoning section vis-à-vis the previously expected marks. When they attempt the questions in a mock, they do not realize. When they have applied a principle incorrectly. As a result, they do not know which answers are Wrong and Why they are Wrong. This leads to unexpected surprises each time the marks for a mock test are released. Sometimes, students who perform Well in the mocks end up With a poor performance in the entrance, especially if there has been a significant departure from the pattern in the problems of previous years’ question papers.

Therefore, We have decided to dedicate a separate video on how to deal with principles.

Before moving further, recall the video on “How to solve a Legal Reasoning Problem”, which explained the steps to tackling a legal reasoning question. Let’s understand the stages when you will be dealing with a principle while solving a legal reasoning problem.

When you solve a legal reasoning problem, you will be required to apply the principle at the following stages:

• Once you read the principles and the options, you will have to check which of the options is consistent with the principle (discussed in Step 3 of the method).
• If you cannot arrive at an answer merely by reading the principle and the options, you may have to read the facts. After you have read the facts, you will have to interpret and apply the principle to the facts and choose the most appropriate conclusion from the options (as discussed in Step 7 of the method).

In order to be able to apply the method consistently and accurately, you need to learn how to understand and apply different types of principles to the facts. You have already seen earlier, in the video on the different Types of Legal Reasoning Questions’, how legal reasoning problems can be very different from each other, and how they have evolved in recent years – they can vary widely in complexity, details and in the amount of effort required to solve them.

How can you develop and fine-tune your ability to deal with principles?

Interestingly, there are limited skill sets that you need to learn in order to be able to solve any kind of legal reasoning problem that has been asked so far in the past years’. What are these skill sets? They are broadly divided into two components:

• How to interpret and apply legal reasoning principle to specific facts, 
• How to evaluate the relationship between multiple principles, and then applying them to the facts.

In this article, you will learn how to understand and apply a legal reasoning principle to specific facts (Broad skillset 1).

Interpretation of a principle requires you to undertake three kinds of tasks:

1. You may have to break the principle down into its constituents, and check whether the facts satisfy the constituents. Often, a principle may be extremely simple and it may not be possible to break it down further into its components. In such cases, you will still have to follow the next two steps. 
2. While applying the principle to the facts, you may have to interpret the principle which requires you to exercise a certain level of discretion or judgment, With respect to the facts, In some cases, it may require you to utilize prior knowledge. There is a high likelihood that an untrained person may not be able to correctly interpret and apply the principle – to the untrained eye, more than one conclusion may be acceptable if the principle is applied literally.
3. Sometimes, you may even have to utilize prior knowledge to understand the meaning of the principle itself.

Let us examine the elements involved in interpretation and applying a principle to the facts, by taking a few examples:

Example 1

A partner shall share with other partners whatever profit he makes in the course of partnership business.

Partner in a Bangalore firm engaged in textile business, went to a nearby place to buy some silk sarees. The manufacturers therein told him: “If you buy 500 sarees, you will get a discount of Rs.50 in each saree”. Pin fact required only 400 sarees for his firm; nevertheless, he bought 500 sarees and kept 100 sarees for himself. After sometime, he on his own sold 100 sarees and made a good profit. Other partners demand that he should share these profits with them.

1. P has to share the profits, because he bought these 100 sarees in the course of partnership business.
2. P need not share it, because he has already benefited the firm by getting a substantial discount on the purchases. 
3. P need not share the profits, because his additional buying of 100 sarees Was to get the discount and help the firm. 

(NԼS 1994)

Analysis

In order to find the correct answer to this question, you will have to read the facts, and check which of the options is consistent with the principle. How should you go about this process? Ideally, you should divide the principle into its components. This principle has four components:

1. There should be a partnership business in existence.
2. Profits must be made a partner.
3. The profits must be made in the course of the partnership business.
4. If all the 3 ingredients above are satisfied, then profits will have to be shared With other partners.

You can individually mark each component of the principle using a pencil or pen. Now, let’s test. Whether the ingredients are satisfied. (Put tick marks against all the ingredients).

1. There should be a partnership business in existence Yes, because there is a Bangalore firm’ engaged in textile business. A partnership business is known as a firm’ in legal terminology. While you may not know this from prior language, you can infer this from the drift of the language, and from the fact that there are ‘other partners who demand a share in the profits of the business.
2. Profits must be made by the partner Yes, As per the facts, P made a profit’ by selling the 100 sarees.
3. 3. The profits must be made in the course of the partnership business Yes, profits were made in the course of the business in which the partnership was engaged’. The facts state that the partnership firm was into textiles, and silk is a subcategory of the textile segment (which is affirmed by the fact that P bought a certain number of sarees for the firm).
4. If all the 3 ingredients above are satisfied, then profits will have to be shared with other partners.

Since all three ingredients above are satisfied, profits will have to be shared with the partners.

This technique should always be used for solving legal reasoning problems. Until you attain a certain level of proficiency and are able to apply it mentally so that the technique becomes second nature to you, We advise that you use a pen or pencil to mark the individual ingredients in an option. This will also prevent you from making careless mistakes in the exam, and in correctly answering with tricky questions.

In order to apply a principle to the facts, you should always break a principle down into its individual ingredients and check whether they are satisfied by the facts.

Let’s take another example.

Example 2 

Law does net take notice of trifles.

A proposes to his neighbour B that they both should go together for a morning walk. B agrees to the proposals and it is decided that both of them would meet at a particular point 6 A.M. from where they would set off for the morning walk. Inspect of the agreement B does not turn up, A waits for him at 6 a.m. every day for a continuous period of seven days. There after he files a suit against B claiming damages for the agony and mental torture suffered by him. Decide. 

1. B is guilty of breach of contract and is liable to pay damages.
2. There is no intention to enter into legal relations.
3. The matter is too small and the court will refuse to go into it.

(NLS 1999)

Analysis 

This principle does not have sub-components and cannot be broken down further, It only requires a determination of whether the suit filed by A was with respect to a trivial or non-serious issue. The determination may require you to exercise a certain level of judgment, but it’s not too difficult.

Let’s try to solve this question – is it a trivial issue that B did not turn up early in the morning at the agreed time for a week? Yes.

Now, let’s take a look at the options, Option (a) is implying that A and B had entered into a contract. The principle did not refer to contracts. Moreover, this was merely a friendly arrangement for a morning Walk, What about option (b)? Well, clearly the intention Was not to enter into legal relations, but you should not fall for this one. This option is not consistent With the principle, which refers to trifles, net to the intention to enter into legal relations. Now, take a look at Option (c) – it states that the matter is ‘too small and the court Will refuse to go into it, which pertains to the principle.

As you saw above, solving these questions sometimes requires you to possess a certain level of prior knowledge, You may also be required to exercise some level of discretion or judgment.

Example 3 

A mere right to sue cannot be transferred.

A’s lessee had covenanted to pay the Government revenue or in default to be liable to A in damages. A sold the reversion to Band also assigned to B his right to recover from the lessee’s default, The assignee files a suit to recover damages. Decide,

1. This is a mere right to sue for damages for the breach of contract and cannot be transferred.
2. This is mere than a mere right to use.
3. This is an actionable claim and can be assigned.

(NLS 1999)

This problem contains many terms which are not clearly explained, either in principle or in the facts. After you read this problem, you may have one or more of the following questions in your mind (the number of questions may vary depending on your current state of legal knowledge).

• What is a mere right to sue? How do you identify that a particular right is a mere right to sus? 
• Who is a lessee? 
• What is the meaning of reversion? 
• What is the meaning or consequence of A assigning the right to B? What is the meaning of assignment?

However, you will realize that this principle cannot be broken down into its subcomponents. The trick in such a question is to understand the meaning of the principle. If you understand the meaning of the principle, you can apply it to the facts immediately. You have to understand the facts correctly, and then determine ‘whether a mere right to sue was transferred. As explained before, such situations may sometimes require you to exercise a certain level of judgment’.

Let’s assume you don’t know the meaning of reversion, but you know that a lessee is a tenant and that assignment means transferring certain rights to another person.

Can you try to solve the problem now? What would your answer be? Make a mental note of it.

Analysis 

A had a tenant who had agreed to pay any government charges on the property. Upon failure to do so, he would have to pay damages to A. A transferred his rights With respect to this property to B, including the right to recover damages.

Do you observe that B now becomes the landlord vis-a-vis the tenant? He also has the right to obtain damages in case of non-payment of government charges by the tenant, for which he can sue (if necessary). B will not merely sue for damages which are due to A. If that were the case, it would be a transfer of the right to sue. Instead, the damages will now be due to B. Since he is suing for damages which he is legally entitled to earn, and since all rights over the tenant which were with A are transferred, this is not a transfer of a mere right to sue.

What is the best way to prepare for such questions? Through continuous practice of legal reasoning, you should be able to develop sufficient understanding of prior knowledge which enables you to attempt most questions framed in this manner, Despite such preparation, if you are not able to solve a particular question in the examination, you should choose the most appropriate answer and proceed, since the number of legal rules that you could be asked on is very large and not possible to cover systematically (even practicing lawyers and judges do not know all the legal rules at a particular point in time), any other method of preparation for questions which require you to exercise prior knowledge Will not be efficient use of your time for preparation.

Example 4 

A contract without consideration is void.

A owes B Rs. 1100/- but debt is barred by limitation. B cannot file a suit. A signs a written promise to pay B Rs. 500/- on account of this debt. B now files as suit for the recovery of Rs.500/-. Decide. 

1. The contract is not enforceable as consideration is inadequate 
2. Time barred debt is no consideration 
3. The contract is enforceable as it has sufficient consideration

(NԼ3 1399) 

Ans:(c)

Explanation: What is the meaning of a ‘debt barred by limitation”? It is explained in the facts itself – that B cannot file a suit to recover the debt. Interestingly, you are not required to pay any attention to the issue of limitation – it has merely been mentioned in the facts to unsettle you, You have to identify whether this B’s promise was in return for some consideration, Read the facts carefully – why is the Written promise to pay Rs. 500 being given? The facts state it is on account of a debt. Thus, there is consideration in this.

You may believe that this question may require you to have some level of ‘prior knowledge and understanding’ about the concept of consideration, to verify whether an action done in the past can also qualify as consideration for a promise made afterward. It turns out that past actions can qualify as consideration. However, if you simply apply the literal meaning of consideration, as something done in return for another action (without restricting the scope of this principle), you will realize that the promise was in return for the debt, and hence you will arrive at the same conclusion.

Example 5 

Principle: 

Uncertain agreements are non enforceable by law. 

Facts: 

Allauddin is a dealer in all types of edible oils. Vimal buys from Allauddin mustard oil and coconut oil. On 6 June. Vimal sent a telegram asking Allauddin to send 100 tonnes of oil which was not supplied by Allauddin. Vimal filed a suit against Allaudin. 

Probable reasons given by Allauddin

1. Which oil is to be supplied was not mentioned though Wimal used to buy coconut oil in previous years in the month of May when this order also was placed.
2. The price of the oil to be supplied is unascertainable because he was supplied at a price different from the price charged from others in earlier period.
3. Prices of all oils had risen considerably and it was not possible to supply at the quoted price.
4. The oil was to be bought by Vimal for the purpose of export which was later banned by the Government.

Which among the above will not be accepted?

1. A, B, C, D 
2. B, C, D 
3. C, D

(NԼ3 2000)

What is the correct answer according to you?

(Insert on a button which states “Listen to the correct answer”)

Analysis

In order to solve this question, you will have to evaluate each option individually against the principle, All options may not be equally correct – different options may have various degrees of correctness or acceptability, Simply strike out the outcomes that are consistent With the principle, The options which do not correspond to the principle or are contrary to the principle will be your answer.

Let’s solve this question, First, read the options and strike out the reasons which could be acceptable, on the ground of uncertainty. Remember – you are only required to strike out the reasons that relate to uncertainty, If you read the options, you realize that Reasons (a) and (b) indicate the presence of uncertainty in the communication – Reason (a) refers to uncertainty in the variety of oil, i.e. the subject matter of the contract, and Reason (b) refers to uncertainty in the price.

Hence they should be struck out. Reason (c) refers to Whether to whether it was commercially feasible to supply the oil, and Reason (d) points out at a change in law, neither of which create uncertainty in the current contract. Hence, both Reason (c) and Reason (d) are unacceptable. The correct option is therefore, option (c), which states that Reasons (c) and (d) will not be accepted.

Example 6

Rule: When a State undertakes any measure, the effects of the measure must be the same for all those who are affected by it.

Facts

100 mountaineers embarked on an extremely risky climbing expedition in Leh. Weather conditions worsened five days into the expedition and the mountaineers are trapped under heavy show. The government received information of this tragedy only two weeks after the unfortunate incident and has only 24 hours in which to send rescue helicopters.Weather stations across the world confirm that this particular region of Leh will experience blizzards of unprecedented intensity for almost two Weeks after this 24 hour Window rendering any helicopter activity in the region impossible and certain death for anyone left behind. The government has only five rescue helicopters With a maximum capacity of 50 people (excluding pilots and requisite soldiers) and these helicopters can fly only once in 24 hours to such altitudes.

As the Air Force gets ready to send the helicopters, an emergency hearing is convened in the Supreme Court to challenge this measure as this would leave 50 people to die.

Question – If you were the judge required to apply the Rule, you would decide that: 

1. As many lives must be saved as possible. 
2. If everyone cannot be rescued, then everyone must be left behind. 
3. A measure cannot be upheld at the cost of 50 lives.
4. It must be left to those who are trapped to decide if they want half amongst them to be saved and leave the rest to die.

(CLAT 2011)

Analysis

This is a situation where you are not necessarily required to draw a positive or negative inference from the principle – you may simply conclude the most workable option in a situation after applying the principle. In this case there are essentially two outcomes that you can choose from – saving as many people as possible which may leave 50 people to die (Option (a)), or not taking the measure at all (Options (b), (c) and (d) could lead to this conclusion). Therefore, Option (a) is the correct answer.

Handling questions without principles

Questions without principles are extremely rare, although in 1997 all the legal reasoning questions in Part B of the Legal Aptitude Section the NLS entrance exam did not have a principle. Except for that question paper, there are approximately 7 -8 questions in all the other years which did not have a principle.

Torina and Perina are adjoining nations. In Torina, just across the international boundary, a smelting industry is set up. The sulphur fumes discharged by this industry are seriously polluting air near the town Perto in Perina. Perina complains to Torina about the discharge of fumes.The dispute between Torina and Perina is submitted to arbitration for settlement. The following claims are being considered by the Arbitrators. Which one do you think is the most reasonable and fair? 

1. Torina is a sovereign and independent state. It may use its territory in Whatsoever manner it likes. 
2. Torina says Perina will have to suffer from sulphur because it is unavoidable in the industrial era. 
3. All states must ensure that their territories must be used in such a manner as not to cause injury to the interest of other states. Hence Perina says that Torina must relocate the industry. 
4. Perina agrees that Torina may use its territory in whatsoever manner it likes but insists that Torina should pay some compensation to Perina for loss they are continually suffering.

(NԼS 1997)

How should you prepare for legal reasoning questions which do not have a principle?

Attempting these questions requires you to use prior legal knowledge. However, you will gain familiarity with the most commonly asked principles as you practice solving problems from past years’ question papers, will equip you with sufficient knowledge of basic legal principles.

It is impossible to learn all applicable principles of law (even for lawyers), and hence apart from practicing past years’ question papers, there is no other way to prepare for these questions efficiently. You will waste too much time if you start preparing for such questions. Moreover, question paper setters rarely frame problems on the basis of an entirely new principle (which is not mentioned in the problem).

In case such a question comes in an exam, try to find the best possible answer using your existing knowledge, If you are not sure about an answer to such a question, mark the most appropriate option and move on to the next question.

How to solve a legal reasoning question in 7 steps

In a CLAT paper, you have to solve 50 questions on Legal Aptitude (if they stick to the rules declared), which includes questions on legal reasoning. The number of questions on legal reasoning can vary in a particular exam.

Legal reasoning can be extremely time-consuming, and is an area where you can gain a lead over the competition, with the correct preparation and method. In this video we will deal with the method that should adopted for solving legal reasoning questions.

 What are the ingredients for acing the legal reasoning section in a law entrance exam such as the CLAT?

Most conventional coaching classes will teach you that your performance is determined by prior preparation (which was done before the exam). Some place emphasis on improving your reading speed, so that you can attempt the questions faster.

What if you can rapidly increase your accuracy rate as well as speed drastically just by tweaking the process of solving legal reasoning problems? We will teach you the optimal method of solving legal reasoning, which never fails and always helps you to solve questions faster than any other possible method.

Our research shows that almost 30% students answer legal reasoning questions based on hunch and do not have any systematic method to solving these questions. Also, this is why, most students have terrible accuracy rates – most getting around 40-50% questions right. This is a dangerous proposition especially in the face of negative marking – which has been introduced for the first time this year. It is very important to move on from the shooting in the dark model to a methodical approach to solving legal reasoning questions. 

What is this `optimal method’?

Most students read a problem a legal reasoning question way, first, the principle, then the facts, and last, the options. After reading the facts, they usually go back to reading the principle – trying to understand its impact. Then they read principles one by one, and keep referring to the facts and principle again and again, trying to see if the options seem to be correct.

To choose the correct option, most students read the principle and facts several times over, thus spending too much time in solving the question. This is a very inefficient way to solve these questions.

What if you could optimize your method so that you are required to spend less time on reading the facts? What if you could devises technique so that your eyes instantly catch the relevant facts in a problem? What if you didn’t have to read the facts, principles and options again and again?

Fortunately for you, there is a simple, time saving and efficient way to solve legal reasoning questions, If you follow this method, it will save your valuable time, and even increase your accuracy. This optimal method consists of 7 simple steps.

Step 1: Read the principle. Soms problems states the facts first and then the principle, Do not follow the order in which the question is written, and read the principle first in all cases. Make sure you understand the overall meaning of the principles. 

Step 2: Read the options next. DO NOT READ THE FACTS.

Step 3: Eliminate the options which are (1) inconsistent with the principles and (2) does not have any application or Correspondence with the principles.

Step 4: If it is possible to eliminate 3 options in this way, then you would be left with just one. This would be the correct option. If you see old NLSIU papers, almost 50% questions can be solved in this way. Yes, you do not even need to read the facts in that case at all. You just mark the only option which is not inconsistent with principle or which has an application of the principle. In many cases, you would be able to eliminate only one or two options. In these cases, you need to read the facts next. Basically, after Step 3, you may have the answer already-in which case you are done and there’s no need to perform the steps after this, If you cannot narrow down to one option by eliminating other options, then you will move to step 5. For example, let’s consider the following question, We will not display the facts at this stage, as this is not the right time to read the facts, if you are trying applying the method we are teaching here:

Principle: A clear offer and acceptance lead to contractual Relationship.

(display only the principle and not the facts)

1. The real Estate Agency becomes bound to sell the site to X, after quoting the price for it.
2. Mere quotation of price will not bind the Real Estate Agency to sell the land to X.
3. The Real Estate Agency may decline to sell the site but must compensate X for all the expenses incurred by him in making the enquiry.
4. The Real Estate Agency may argue that it did not desire to sell the site to X, but X can prevent the anybody else.

(NLS 2003)

Analysis

The principle pertains to the ingredients that lead to a contractual relationship, so the correct option should contain a positive or negative inference on whether a contractual relationship existed between the parties.

Hence, Options (c) and (d), Option (c) mentions compensation, which is not mentioned in the principle, Both Option (c) and (d) are attempting to give ‘workable solutions’ and some kind of ‘alternative argument, rather than interpretations of the principle.

Therefore, after reading the principle, you can safely eliminate Options (c) and (d).

But you are left with Options (a) and (b), both of which correlate to the principle, Since you cannot narrow down to one option at this stage, you move on to the next step.

Step 5: Identify the difference between the options, is there a factual difference? Is there a logical difference? Usually there will be a factual difference mentioned in the options themselves. Sometimes, in rare cases, the factual difference will not be apparent in the options themselves. However, you read the two (very rarely three) options carefully. 

For example, let’s consider a question we have discussed elsewhere in this chapter too:

 Principle: A clear offer and acceptance lead to contractual Relationship.

1. The real Estate Agency becomes bound to sell the site to X, after quoting the price for it.
2. Mere quotation of price will not bind the Real Estate Agency to sell the land to X.

(NLS 2003)

To choose between Options (a) and (5), you should first identify the difference in the Options, Both the options are referring to the same fect. the ‘quotation of the price’, but draw a different conclusion from the same. However, to determine whether there was a clear offer and acceptance, you will need to understand the broader factual context. This takes us to Steps 6.

Step 6: Now, you can venture into reading facts for the first time to determine which one of the options is correct. While reading the facts, you will immediately know which facts are relevant as you have already read the options. In the fact situation, there are likely to be many irrelevant facts which you can completely ignore. While reading facts, you will not be wasting time trying to absorb or considering the irrelevant facts, which makes your job easier and faster,.

Step 7: At this stage you will be able to choose the option with the correct application of principle. The correct option will alone have all of these qualities – a) it will have an application of the principle and b) it will represent the facts correctly, Choose the option that provides the best answer and move on.

To observe how Steps 6 and 7 apply, let’s take the problem we were trying to solve earlier, For a recap, we need to choose which one of the following options is correct:

1. The real Estate Agency becomes bound to sell the site to X, after quoting the price for it. 
2. Mere quotation of price will not bind the Real Estate Agency to sell the land to X. 
3. After reading the options above, you know that you are looking for the circumstances around which the price quotation’ was made, and you will filter all other irrelevant facts. 

Let’s read the facts now.

Facts: A fax message from X to a Real Estate Agency read: “Will you sell 60 x 40 pieced of lane at Nagarbhavi to me? Quote the lowest price”. The Real Estate Agency replied “The lowest price for a site measuring 60 x 40 dimensions at Nagarbhavi is Rs. 15,00,000”. The following fax from X to the Estate Agency read: “I agree to buy the site for Rs. 15,00,000 quoted by you. Please send me all the legal documents of the site”. Which of the following inferences is correct?

When you read the facts, you will only look for the circumstances surrounding the quotation that was furnished. Upon reading the facts, you will immediately realize that the quotation from the Real Estate Agency merely mentioned the price, but it did not convey its willingness to sell the property. Hence, option (b) is the correct option.

A quick recap here – we have explained above in step 3 of the method that you should eliminate options that are inconsistent with the principle. How do you find out whether an option applies the principle or not? What if you cannot determine whether a particular option applies the principle by reading the ορtion ?

Sometimes, an option does not contain sufficient information, in which case you may not

be able to determine whether it is consistent with the principle or not simply by reading the principle, and you may have to read the facts as well. How do you find out whether an option is consistent with the principle? Under which circumstances are you required to read the facts to arrive at that determination? For this purpose, it is crucial to understand the anatomy of options to figure out whether there has been any application of principle. 

An option has two elements – the outcome (O) and the reason (R).

Note that some options come with only outcome – in which case you cannot rule out such options, If the reasoning is not written in the option itself, you cannot see if the principle has an application immediately, In that case, you have no choice but to read the facts to see if the outcome suggested can be brought about by applying the principle to the facts.

Let us take an example to identify the Outcome and the Reason component in the questions: 

Example 1

Principle: The owner of immovable property is entitled to the column of airspace above the surface, However, the owner’s right to air and space above his land is restricted to such height as is necessary for the ordinary use and enjoyment of his land and the structures on it.

Facts: Galaxy cable TV Network Company is providing cable connections to their customers, One of the cables passes over the house of Mr. Vasanth Bhat. He is not a customer of the Network Company. The cable is neither attached to his house nor to any projection thereof. It is at a distance of 20 feet above the terrace of Mr. Bhat’s two storeyed house. Because of the cable, Mr. Bhat’s son Sachin is unable to fly skite from the terrace. Mr. Bhat requested the Network Company to change the position of the cable. But the company did not bother to change it. One evening Mr. Bhat cut the cable and cleared the airspace above his house. The Network company suffered a loss of about Rs. 1000/-. The brings legal action against Mr. Bhat for recovery of loss suffered.

1. The Network company will succeed (O) because the cable was not interfering with the ordinary use and enjoyment of Mr. Bhat’s property (R).
2. The Network company will not succeed (O) because Mr. Bhat has every right to ensure proper enjoyment of his property by removing objects causing trespass in the air above his property to a reasonable extent (R).
3. The Network company will succeed (O) because laying cables is widely practised in all cities like electricity and telephone wires (R). 

(NLS 1997) 

In this question, every option has an outcome and a reason. 

Example 2 

Principle-1: Master is liable for this act of the Employee/servant. 

Principle- 2: The husband or the wife are not responsible for any commission of wrong on each other.

Fact

H is a manager of a Hotel belonging to X. Because of the negligence of H, a folding chair fell from the first floor to the ground floor injuring the Receptionist of the Hotel, named W who is the wife of H. W ask for compensation from X and H. 

1. Both X and H are responsible to compensate W (O). 
2. X is only responsible to compensate W (O). 
3. No one is responsible to compensate W (O). 

(NLS, 2000)

In this question, all the options are only outcome-based, and none of them have a reason. 

Example 3 

Principle: No legal relief exists for the breach of a wagering agreement.

Facts: Saukar, borrowed Rs. 25 lakhs from Imperial Bank for the purpose of running a gambling den. After suffering heavy losses he failed to repay the loan. 

Options

1. The Bank may file a civil suit and successfully plead for recovery of loan amount from the personal properties of Saukar (Q).
2. The Bank may issue a public notice to the effect that Saukar was bankrupt and people must avoid transacting business with him (Q).
3. The Bank cannot recover any money from Saukar (Q) as the borrowing was for an illegal purpose (R).
4. The Bank may complain the local police for the fraud of saukar and the latter can arrest him (Q).

(NLS 2003)

In this question, only one option has a reason, while all the other options are outcome-based.

The benefits of this method are following:

• This is a structured reading of the problem – drastically reducing reading time
• You eliminate irrelevant options without any application of the principles, therefore drastically reducing your chance of going astray due to misleading options, This method for this reason alone drastically increases the possibility of you gettings legal reasoning question right.
• In all likelihood, you will now be able to select your answer in just one reading of the problem.
• You will learn to identify the relevant facts and ignore the irrelevant facts. Over time, with some practice, your mind will subconsciously ignore the irrelevant facts which do not have a bearing on the answer.
• If you follow this method, you tend focus on question solving skills rather than learning more and more law as taught in most coaching centres. This is a much more efficient way of learning legal reasoning.

List us demonstrate this method through some examples:

Example 1

Principle: A clear offer and acceptance lead to contractual Relationship.

Facts: A fax message from X to a Real Estate Agency read: “Will you sell 60 x 40 pieced of lane at Nagarbhavi to me? Quote the lowest price”. The Real Estate Agency replied: “The lowest price for a site measuring 60 x 40 dimensions at Nagarbhavi is Rs. 15,00,000”. The following fax from X to the Estate Agency read: “I agree to buy the site for Rs. 15,00,000 quoted by you. Please send me all the legal documents of the site”. Which of the following inferences is correct?

1. The real Estate Agency becomes bound to sell the site to X, after quoting the price for it.
2. Mere quotation of price will not bind the Real Estate Agency to sell the land to X.
3. The Real Estate Agency may decline to sell the site but must compensate X for all the expenses incurred by him in making the enquiry.
4. The Real Estate Agency may argue that it did not desire to sell the site to X, but X can prevent the Real Estate Agency from selling the same to anybody else.

(NLS 2003) 

Analysis

The principle pertains to the ingredients that lead to a contractual relationship, so the correct option should contain a positive or negative inference on whether a contractual relationship existed between the parties.

Options (c) and (d) are extraneous – Option (c) speaks of compensation, which is not mentioned in the principle, while Option (d) simply mentions vague inferences – neither of which can be concluded from the principle.

Once you read the facts again, you will realize that although the real estate agency quoted the price in its reply, it did not expressly agree to sell the land, Hence, option (b) is the correct option.

As discussed earlier, this method will not enable you to eliminate options when the options only contain the outcome (without a reason). However, you can still save valuable time by following the method, even for questions where the options are outcome-based, as your reading of the facts will become much sharper.

Let us see how you should use this method to solve questions which have outcome based options. For example, consider the following question:

Example 2

Facts are provided at the end.

Principles: 

1. Manufacturer is liable for the latent defects in the goods manufactured by him.
2. A seller is relieved of any liability for the defects in goods sold by him, if the purchaser chooses his goods by trade name and not by relying upon the judgment and skill of the seller. 

Options:

1. Modern Bread company alone will be liable. 
2. Rama stores alone will be liable.
3. Both Modern Bread Company and Rama Stores will be liable.
4. None of them will be liable, since Krishnan ought to have checked the bread before eating it. 

(NLS 1989)

If you read the options, you will realize that options 1 – 3 are entirely outcome based, and only Option (4) relates to the principle. However, that does not mean Option (4) is the correct answer. Since Options 1-3 are exclusively outcome-based, it is not possible to eliminate any of them without reading the facts. However, after reading the options, your reading of the facts will become much faster. You will learn (after reading the options itself) that you must find out whether Modern Bread or Rama Stores, or both could be liable, or whether Krishnan should have checked the bread earlier. Since you have read the principles, you will already be looking for these ingredients while reading the facts.

Now, go through the facts: 

Facts: (read them last)

Krishnam went to Rama Stores and asked the shopkeeper to give him a good bread, The shopkeeper replied: “People normally buy Modern Bread from me”. Krishnam bought a packet of Modern Bread. It so happened that there was a stone embedded in one of the bread slices and it broke Krishnan’s teeth, while eating the bread, Krishnan seeks compensation from Rams Stores and Modern Bread Company.

Hence, on application of Principle (a), Modern Bread is liable and on application of Principle (b), we find that Rama Stores is not liable, as this was a latent defect in a good sold by trade name.

Let’s take another example to see how to solves problem in which there are several outcome-based options: 

Example 3

Principle: Agreement by way of wager is void and no suit lies for recovering anything won by such wager.

Facts: Mr. X and Mrs. Y enter into a contract with Raman who is an expert in betting on horse racing, Both pay a sum of Rs.2,000/- to Raman to bet on a particular horse. Raman followed the instructions and he won a sum of Rs.20 lakhs.

1. Raman has to pay Rs.20 lakhs to Mr. X and Mrs. Y
2. Raman can divide Rs.20 lakhs into three parts and share it equally with Mr. X and Mrs. Y
3. Raman can keep Rs.15 lakhs and give 5 lakhs to Mr. X and Mrs. Y
4. Raman need not give anything to Mr. X and Mrs. Y as this agreement is not Enforceable

 (NLS, 2007)

 Analysis

Let’s try to solve this question – the principle is talking about agreements of wager and the rule says that such agreements are void, Please note that it is important at this stage to know what is a wager – otherwise it is going to be difficult to solve this question.

 Let’s take a look at the options now.

Option (a) has no reason but just an outcome, so one cannot eliminate it at this stage.

Options (b) and (c) are outcome-based but are introducing solutions not consistent with the principle, as the principle does not mention dividing any money. It is highly likely that these will be incorrect, but since they are outcome-based, we will park them for the time being.

Option (d) corresponds to the principle so there is a high probability that this could be the answer, but we need to read the facts. After we read the facts, we realize that this is squarely a wagering agreement, Our initial premonition that it could be (d) is confirmed.

Your ability to solve these questions in this way will drastically improve as you keep practising solving more questions independently in this way.

Please note that we shall teach you more about reading principles, understanding what are the relevant facts and also about different types of options, which will increase your understanding of these problems and level of accuracy.

To know How to start Clat 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.

The post CLAT: How to Solve Legal Reasoning Questions appeared first on iPleaders.

This article has been written by Gazal Sancheti.

Abstract

There cannot be any denying on the fact that our environment is the most valuable asset Earth has endowed us with. It fosters life and imbibes all the life forms. Yet, we as mankind have failed miserably in taking care of the same environment in which we live, and due to which we live. Today, global warming, pollution of tens of different forms, loss of biodiversity, ecological imbalance etc., are not mere concepts or theories but have become the sad reality. Of course, there are national as well as international laws, conventions and treaties to combat environmental issues, very less effort are made by the masses to protect the environment. This article, by trying to present environment as a common property of each one of us, attempts to strike a chord in the heart of the reader to make his inner self aware and active of the various responsibilities and duties he has towards the environment, as though it actually is his own property which he needs to take care of. Viewing environment as a common property also alters the very essence of environmental legislation from being laws and rules that one has to comply with to a duty which one ought to exercise towards using something which is commonly owned so that one person’s enjoyment/use doesn’t affect the enjoyment/use of others. 

When we talk about the concept of ‘property; we find that the term has different and varied usages. It might mean ownership or title, and at the same time, it may also mean the res over which such ownership may be exercised[1]. This article shall deal with each of these notions one by one subsequently and see if the environment fits into the scheme.

Environment as a ‘Thing’

The idea or concept of ownership is always used in reference to a ‘thing’[2], it becomes important to see whether the environment can actually be considered as a ‘thing’ under law or not.  As John Austin defined, a thing is a permanent object, excluding persons, which is perceptible through or can be sensed via the senses.[3] While the dictionary meaning of ‘thing’ is varied across the books, two common features which are seen in every definition are-

1. The element of permanence, and
2. The element of physical unity.[4]

In law, the usage of the word ‘thing’ is even broader.[5] 

However, even in the legal arena, the usage of the word is far from consistent.

“A thing may mean:

1. A thing in the material sense which is corporeal and tangible and has an organic or physical unity, e.g., a horse or a block of marble, or
2. A thing which is corporeal and tangible, but consists of a collection of specific things, e.g., a flock of sheep, or
3. A thing which exists in the physical world but is not material in the popular sense,g., electricity, or
4. A thing which is neither material, corporeal, nor tangible but is an element of wealth, e.g., a copyright or a patent, or
5. A thing which is not material and which is not directly an economic asset or element of wealth, e.g., reputation.”[6]

The aforementioned idea regarding the various legal uses of the term ‘thing’ is wide enough to encompass the environment as a ‘thing’ in it. The environment can certainly be considered as a thing under point number 3, as something which exists in the physical world, but is not material in the popular sense. It should be here noted that while some basic elements of the environment, like natural vegetation, water and soil, are corporeal and tangible; the corporeal existence of certain elements like climate is disputable. Hence, in order to prevent unnecessary confusion and divergence of viewpoints, it is best to consider the environment as a thing under the aforementioned point 3.  

Now that the environment can be considered as a thing under law, we can definitely consider it as a res which can be owned. The determination of the type of such ownership will be dealt with subsequently.

‘Owning’ the Environment

As per Salmond-

“Ownership connotes the relation between a person and an object forming the subject-matter of his ownership. It consists, in a complex of rights, all of which are rights in rem, being good against all the world and not merely against specific persons.”[7]

Ownership has been defined by many jurists in different ways, however, there are some essential characteristics of ownership which remain constant among all the varied concepts of ownership-

1. The owner of a thing has the right to possess it. Whether he is in actual possession of the thing owned or not is immaterial so long he has the right to possess the thing,
2. The owner of a thing has the right to use and enjoy the thing which he owns,
3. The owner of a thing has the right to destroy, consume and/or alienate the thing which he owns,
4. Ownership is indeterminate in duration, and lastly
5. Ownership has a residuary character.[8]

Ownership can be of various kinds-

1. Corporeal and Incorporeal Ownership,
2. Sole and Duplicate Ownership,
3. Trust and Beneficial Ownership,
4. Legal and Equitable Ownership, and lastly
5. Vested and Contingent Ownership.[9]

For the present purposes, we shall focus only on the second category- Sole and Duplicate Ownership.

Sole and Duplicate Ownership

When the ownership of a thing is vested in only one person it is known as sole ownership, whereas, if the same is vested in more than one person at the same time, it is called duplicate ownership.[10] Duplicate ownership can arise in a lot of ways, one of such way is that of co-ownership, in which the title of one owner is rendered consistent with the title of the other owner by the existence of reciprocal obligations of use and enjoyment.[11]

Further, co-ownership can be of two types- Joint Ownership and Common Ownership- the main difference between them is that in the former the ownership is non-inheritable, whereas, in the latter, the ownership is inheritable.[12]

In case of common ownership, when the owner of a property dies, his property can be inherited by his successor, whereas in case of joint ownership, the title of ownership dies with the owner. 

The pertinent question now is that whether the environment can be said to be commonly owned, that is, whether environment can be a common property?

Based on my analysis of the concept of common property, for anything to be owned commonly, the thing has to something which is inheritable as it is only then that it can be passed on from one owner to the other, and the res has to be acquired by one of the two ways in which one is entitled to acquire ownership- 

1. by operation of law, and
2. by reason of some act or event.[13]

Inheritableness of Environment

It is not a hidden fact that today, man has claimed his ownership on every possible thing on the planet, and beyond. Amassing private property is considered to be the best way to ensure financial security of oneself and one’s descendants. We often come across people buying things like islands, lakes, landmasses on mountains and hills, beaches and much more. All these assets then become their private property, which often they pass on to their successors- which implies that all of this is, in fact, inheritable in nature. The various nation-states across the globe claim ownership over the water bodies surrounding their land territory as well as the airstrip over their land- and the same continues to be owned by the State for centuries and centuries. Today, each and everything which man can claim title over is owned by someone or the else. All of the aforementioned things are components of the environment- the land, the hills, water bodies, soil, air etc. Each of these components is inheritable- they may be passed on generations after generations. By this reason, it is not at all disputable or unclear that environment is inheritable- for what can be inherited as private property can also be inherited as common property.

Acquiring Environment Commonly

A thing which can be owned be acquired in either of the following two different ways-

1. by operation of law,
2. by reason of some act or event.[14]

There have been innumerable accounts of various jurists, philosophers and thinkers of how nature is something which has been given to the humans by God for the purpose of utilising the natural resources for the benefit of mankind. Thinkers like Hugo Grotius, Samuel Pufendorf, Thomas Aquinas and even John Locke, all begin from more or less the same starting point, and in fact, their entire theories on property revolve around justifying the private ownership of something which has been given by God to the mankind in common.[15]

Since they all seem to agree upon this one premise that mankind has received the goods of the Earth commonly, and then they set up their arguments to reach different ends, there can be one more argument from a different line of reasoning which leads to a different conclusion. The goods of the Earth are still commonly owned because they were received by the mankind in common and the entire mankind traces its origin to a single pair of ancestors, a fact which has been supported by both science and mythology all alike. 

That act of God wherein he gave nature to man is that act by which we have acquired the rest of the environment.

Implications of Environment being a Common Property

Since the environment is commonly owned by each one of us, each of us is under a duty which emerges from the entitlement or ownership of the environment. As discussed earlier in this article, the owner of a property has the right to possess, use, enjoy, alienate and destroy his property. Being the common owners of the environment, each man has the same rights. But when all of us have the same rights, all of us are also under a duty to let others exercise their right. What I mean by this is that none of us has the right to possess, use, enjoy, alienate and destroy the environment in a manner by which others, who also own the environment, as stripped off of their right to do the same, in other words,

“In the case of co-owners, the title of one is rendered consistent with that of the other by the existence of reciprocal obligations of restricted use and enjoyment.”[16]

This implies that our interaction with the environment in any manner should be conditioned by the obligation we have towards each member of the mankind so that our interaction with the environment doesn’t hinder theirs in any way.

Conclusion

Seeing the environment as common property and keeping in mind the obligations that come along with it, it is a duty that of each one of us to protect the environment from any further damage. Till date, the major reason that is given for environment protection is that we ought to protect the environment because it provides us with the means of life, without which the mankind wouldn’t exist at all. But viewing the environment as a common property opens the doors for a rather fresh idea that one is under the obligation to protect the environment for the sake of that obligation which arises from the fact of environment being a common property, that is, the obligation to possess, use, enjoy, alienate and destroy the environment in personal capacity in a way which doesn’t interfere with the right of other owners of the same environment. Hence, the need for protecting the environment is not due to the sake of the environment itself, but because of the obligation, we have as co-owners. A thief’s house can too be robbed, and therefore, before interfering with someone else’s right to interact with the environment as its co-owner, we need to consider the fact that someone might even interfere with our right to do the same. This also alters the need for environment protection centric legislation to focus only on a person’s duty towards the environment but allows it to also focus on a person’s duty towards others of his own kind. However, whatever be the focus or the reason, the ultimate goal should be to protect the environment we live in. 

Endnotes

[1] G.W. Paton, A Textbook of Jurisprudence, 505 (4^th ed., 1972).

[2] R.W.M. Dias, Jurisprudence, 295 ( 5^th ed., 2013).

[3] G.W. Paton, supra note 1.

[4] Id. at 506.

[5] Id.

[6] Id. at 507

[7] Dr. Avtar Singh & Dr. Harpreet Kaur, Introduction to Jurisprudence, 283 (3^rd ed., 2009)

[8] See. Id. at 289-293.

[9] See. Id. at 289-293

[10] Id. at 290.

[11] Id.

[12] Id.

[13] Id. at 287

[14] Id.

[15] Zev Trachtenberg, The Environment: Private or Common Property?, 50 Oklahoma Law Review, 399 (1997)

[16] Dr. Avtar Singh & Dr. Harpreet Kaur, supra note 7, at 290

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 Environment as a Common Property and its Implications appeared first on iPleaders.

 This article has been written by Sushrita Mishra.

Introduction

“Justice consists not in being neutral between right and wrong but in finding out the right and upholding it, wherever found against the wrong”, as well examined by Theodore Roosevelt. The reason of so much intoxication of injustice in the society is not because there are anti socials who commit it but because there is a scarcity of active socialists who ought to respond such injustice. Rights and privileges will just continue to be the “show-pieces’’ in the society, if there is no access to it. In order to access it, people must be aware of the basic procedures under the guidance of the state. Injustice can’t be eradicated but only with effective access to justice and proper execution of legal-aid. Legal aid is the provision of assistance to people who are unable to afford legal representation and access to the court system. It is regarded as the core in providing access to justice by ensuring equality before the law, the right to council and the right to fair trial. It is a welfare provision by the state that ensures the enforcement of the provisions by providing people such as social housing with access to legal advice and the courts. Legal aid in India is governed by the Legal Services and Authorities Act, 1987. A number of delivery models for legal aid have emerged including duty lawyers, community legal clinics and the payment of lawyers to deal with cases for individuals who are entitled to legal aid.

Constitution as watch-dog of justice

Preamble

The significance of the preamble lies in its components which idealizes ‘justice’ in the zenith of its values. The term ‘justice’ in the preamble embraces three distinct forms: social, economic and political. Social justice aims at creating more equitable society based on equal social status. Economic justice aims at equitable distribution of wealth among the individual members of the society so that the wealth is not concentrated in the hands of few particular people. Political justice means that all citizens have rights in political participation providing universal adult suffrage and equal value for each vote. Fair administration of these objectives shall definitely lead to peace and harmony in the society. Not only the preamble, but also various articles of the constitution including article 14,21,22,32,39A,38,41,46,142,226,282 also signify the highest virtue of justice.

Article 14

Equality is a necessary concomitant of justice. The principle of “equal protection of the law”[1] under Article 14 provides a helping hand in terms of special provisions to those people who are at a less advantageous position so that they could avail the benefits of the law as their affluent counterparts are availing and equality before the law could be maintained.

The principle of audi altern partem has made it obligatory on the part of the state to ensure that every person gets a fair representation in the court irrespective of his means or knowledge. Hence free legal aid is implicit in Article 14.

Article 21

The case of Maneka Gandhi[2] changed the dimensions of justice widening the scope of Art.21, which now serves to be the “heart of all Fundamental Rights”, includes the provision of free legal aid. Any procedure established by law which does not provide for free legal aid for the poor and illiterate people to ensure fair representation before the court can’t be treated as just, fair and reasonable. In the case of Hussainara Khatoon v. Home Secretary[3], Justice P.N.Bhagawati declared that free legal aid is the constitutional right of every accused person who is not able to engage a lawyer and secure legal services on account of reasons such as poverty. The State is under a mandate to provide a lawyer to an accused person if the circumstances of the case and the need of justice so requires, provided the accused person does not object to the provision of such lawyers. The access to justice is so sacrosanct that even if a prisoner can’t be deprived of that[4]. The Apex Court reiterated its decision in the case of Sukh Das v. Union Territory of Arunachal Pradesh[5] and held that at the State’s cost is a fundamental right of a person accused of an offence.

In the landmark case of “Mumbai Terror Attack”[6], the Supreme Court held that this right cannot be denied to him on the ground that he failed to apply for it. The Magistrate is under an obligation to inform the accused about his rights and to inquire about his wish of legal representation at the State’s cost unless he refuses to take advantage of it.

Not only legal assistance but assistance by “competent advocates” is implicit of the provision as held in the case of Ranjan Dwivedi v. Union of India[7].Indigence should never be the ground for denying from trial or equal justice.

Article 32 And 226- Tools to Achieve Justice

If State fails to fulfil its obligations in providing free legal aid to those who cannot afford it, the aggrieved party can get it enforced under Art.32 and 226 of the constitution. The liberalization of the “the rule of locus standi” has also allowed the public-spirited persons and organizations to file cases on behalf of the aggrieved party for the redressal of the grievances of poor and illiterate persons. This has broadened the means of access to justice. Not only this but also the Directive Principles of State Policy enshrined in Part IV of the constitution acts as a torchlight for the government to achieve justice in its various forms. Art 38 clearly mentions that the State shall strive to promote the welfare of people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of national life.

The Indian in-justice system

The Judiciary is the watchdog of the constitution of India protects the fundamental rights of the people as enshrined in the constitution from infringement by any other organ of the State. Independence of Judiciary, being an inalienable basic feature of the constitution, is expected to remain unaffected by the pulls and pressures exerted by other branches of the State, citizens or interest groups. But people’s experiences fall far short of this ideal. Corruption in Judiciary goes beyond bribing judges including the payments made to the court personnel to slow down or speed up the trial or to make the complainant go back.

Justice delayed, justice denied

Indian courts have millions of pending cases, traffic challans, police challans, and cheque bounce making of nearly half of it. The government has been the largest, single party litigating before the courts, and has kept adding cases to the already-over-burdened courts, despite losing most, and then on losing has relentlessly taken them to the next court , much of this being avoidable[8]. Judiciary is no longer a hub for young talented lawyers and judicial officers because of the disparity of income and emoluments respectively. In the recent years, scandals about lack of integrity have besmirched the reputation of the judiciary- the Press Conference of four supreme court judges for the impeachment motion against the former Chief Justice Of India, Hon’ble Shri Dipak Misra, still being a threat not only to the judiciary but also to democracy.

Judicial corruption

Judicial Corruption in India is attributable to factors such as delays in the disposal of cases, shortage of judges and complex procedures, all of which are exacerbated by the preponderance of new laws[9]. The most frustrating fact is that corruption is corroding even the highest judicial forum, i.e., the Supreme Court of India, The Supreme Court is turning a blind eye to the injudicious conduct of the colleagues. Nepotism, hypocrisy, plagiarism and prolixity being the evil confidants of the judiciary is earning notoriety. The Higher Judiciary has claimed crass superiority and independence to mask their own indiscipline transgression of norms and procedures highlighting self arrogance and professional arrogance in the judiciary.

Judges are granting bails in non-bailable offences for the greed of money as is evident from many cases. There has been an allegation that judges with doubtful integrity were elevated within the higher judiciary and campaign held for their impeachment.

Supreme injustice- sexual harassment case against the CJI 

Just because it is a Court of Law, one cannot always expect it to be just and fair. The opaque handling of the sexual harassment and victimization case against the CJI Hon’ble Justice Shri Ranjan Gogoi by a former woman employee of the Supreme Court has failed not only the victim but also the public by weathering the principles of natural justice. “The abuse of greatness is when it disjoins remorse from power”- as explained by Shakespeare. The decision by the in-house committee is an egregious instance of a hallowed institution abusing its own greatness by letting its power speak, and not the compassion for which it is renowned. It should have been manifested that the door of justice swings both ways and the CJI is not above the law too.

For these negative experiences, people have already realized that the rights exist but only on paper and standards of enforcement are weak. Hence, the poor, illiterate and ignorant people compromise on an easy hand to be a “victim of the situation” than being a “victim of injustice”. This is the reason people settle for a “near-darkness” over a “far-brightness”.

Reforms

A large number of vacancies in trial courts and failure of the Apex Judiciary in filling vacant High Court judges’ post still remain to be barriers of justice. Therefore, in order to tackle such issues and pendency “Fast-track Courts”, “Evening Courts or Morning Courts” were set up and have met with mixed success so far. “Mobile Courts” are being set up to bring justice at the door-steps of litigants of far-flung remote and backward rural areas. However, the Lok Adalats, an informal alternative mechanism has been a phenomenal success in tackling pendency, especially in pre-litigating matters, settling fresh cases before they become full-blown disputes and enter the Court. The Nation has already taken easy measures for the members of the Scheduled Castes, Scheduled Tribes, persons suffering from a disability (both mental and physical), victims of disasters, persons in custody and those having an annual income less than one lakh to provide free legal aid.

Law should not be confined to law students, people who choose the field of law as a career, being the lex loci, it applies to every single citizen in the country, and hence, everyone should be aware of the basics of law. The Apex Court has held that to provide free legal aid in true sense we need to have well-trained lawyers willing to perform free legal aid. It is possible if there are an adequate number of colleges with necessary infrastructure, good staff and teachers[10]. The system must improve their service conditions to attract persons of the right calibre to the judicial cadre system. The courtroom should revert to their noble foundational principles instead of being a “forum of pretension”.

Conclusion

“If there were no bad people, there will be no good lawyers”, this saying should be superseded by “if there will be no good people, there will be no good lawyers, too.” Hence, the reforms should come from within. Where human rights protection are lacking, marginalized groups are often vulnerable to abuses and significant challenges to realizing their rights, including within the formal justice system, the pillar of a strong rule of law will collapse soon. Transparency should b the “cause-and-effect” of the judiciary. Hence, it is the need of the hour that the future generations should come up to tackle our own issues because “injustice anywhere is a threat to justice everywhere”.

Endnotes

[1] Borrowed from the American Constitution

[2] 1978 AIR 597

[3] (1980) 1 SCC 98

[4] M.H.Haskot v. State of Maharashtra (SC)

[5] AIR 1986 SC 991

[6] Mohd. Ajmal Amir Kasab v. State of Maharashtra (2012) 9 SCC 1

[7] AIR 1983 SC 624

[8] Law Commission Report, 25 March,2008

[9]  Indian Corruption Study, 2005, Transparency International India

[10] State of Maharashtra v. Manu Bhai Pragaji Vashi,(1995) SC 730

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 Sakshi Jaiswal.

The Insolvency and Bankruptcy Code (‘Code’), 2016 commenced on 1^st December 2016. The Code came in as a boon for persons and entities facing financial distress in India.  However, it is seen that the Code is not as buoyant as it looks in its statute because the real challenge starts at the stage of implementation of this law in our country. Many mistakes the Insolvency law to be a substitute of a recovery forum in our country, however, that is not the case. The procedure enumerated under the Code can lead an entity to either re-evolve or become bankrupt. On implementing the Code in India, the Courts, as well as the Creditors, face a number of issues.

The Code is still at its nascent stage and is evolving every day, therefore, lawyers face a number of problems in their decision making and filing process of the Insolvency applications. The latest amendment in Code was witnessed as per Press Release by the Ministry of Corporate Affairs on 17.07.2019.

The law in India is very clear on the subject of Insolvency and Bankruptcy. This article primarily talks about the practise of the Insolvency and Bankruptcy laws by Advocates in India including but not limited to the Corporate Insolvency Resolution Process (CIRP) as well enumerated under the Act.

Introduction

The Insolvency & Bankruptcy Act is a consolidated Code which is covered in Entry 9 List III of Seventh Schedule of the Constitution of India. The main objective of the Code is to make the process of Insolvency of a corporate person, partnership firm or an individual a creditor driven in a time-bound manner. It is to be noted that w.e.f 23.11.2017 the Code is made applicable to the personal guarantors of the corporates as well. The objective of the Code extends to the formation of an Insolvency and Bankruptcy Board of India (IBBI) which will oversee the work of insolvency and bankruptcy of corporate persons, firms and individuals.

The term “Corporate person” has been defined under Section 3(7) of the Code as “corporate person”:

• Company as defined in clause (20) of Section 2 of the Companies Act, 2013 (18 of 2013),
• a limited liability partnership, as defined in clause (n) of sub-section (1) of section 2 of the Limited Liability Partnership Act, 2008 (6 of 2009),
• or any other person incorporated with limited liability under any law for the time being in force.

However, it is important to note that the aforesaid definition does not include a financial service provider such as Bank, Financial Institutions such as NBFC’s, Insurance Company, Asset Reconstruction Company, Mutual Funds, Collective Investment Schemes or Pension Funds. Therefore, they cannot be sued under the Code.

Step 1 – Identification of Occurrence of ‘Default’

The first step to being taken up before filing an insolvency application in National Company Law Tribunal (NCLT) is to check whether there has been a ‘default’. The term default has been defined under Section 3(12) and explained under Section 7 of the Code as non-payment or non-remittance in respect of the financial debt. However, it must be noted that this debt may not only be owed to the applicant financial creditor but can be owed to any other financial creditor of the corporate debtor once the corporate debtor has been declared insolvent and the CIRP commences. Once the default has been established, the Counsel of the applicant must check whether a CIRP has been initiated with respect to the Corporate Debtor on the IBBI website. If yes, then the Creditor shall directly send the prescribed Form^[1] depending upon the Class of the creditor they belong to, to the appointed Insolvency Professional and directly move on with Step 6 i.e, formulation of resolution plan or participation in the CoC meeting.  Hence, without default, an insolvency application cannot be filed. The default shall be above the amount of Rupees One Lakh.   

Step 2 – Identification of the kind of ‘Creditor’

There are two kinds of creditors who may file an application under the Act. The Creditors who may avail benefits under the act are-

1. Financial Creditors – Financial Creditor^[2] is a person to whom a financial debt^[3] is owed in the nature of money lent by banks or financial institutions, debt raised by acceptance of credit notes, debt pursuant to purchase of debentures, loan stock and so on and so forth. The term ‘financial debt’ has been interpreted by NCLAT in Nikhil Mehta and Sons vs. AMR Infrastructure Ltd.^[4] and reiterated in Shailesh Sangani vs. Joel Cardoso and Priority Marketing Private Limited^[5].
2. Operational Creditors – Operational Creditor^[6] is a person to whom an operational debt^[7] is owed in the nature of claim or debt arising in a series of transaction in respect of goods and services. The nature of the operational debt must be transactional.
3. Corporate Applicant – Corporate Applicant^[8] is the Corporate Debtor or its authorised representative. Therefore, a debt-ridden entity also has the right to apply to NCLT and undergo the procedure of Insolvency under the Code.

This is the first question that the Courts determine in an insolvency application. The rights of both the creditors i.e, Financial and Operational are different as they differ on various levels and there has been an on-going debate regarding the same before the latest amendment in the Code in 2019. The clarification regarding homebuyer being a Financial Creditor has been upheld vide Judgement dated 09.08.2019 by the Supreme Court in Pioneer Urban Infrastructure Land and Infrastructure Limited v. Union of India and Others^[9].

The Financial Creditor may file an application under Section 7 of the Code whereas the Operational Creditor may file an application under Section 9 of the Code before the NCLT.

The Code has enumerated under Section 10 on how a corporate debtor may file an insolvency application against itself under the name of ‘corporate applicant’. A corporate applicant^[10] can be the corporate debtor or its authorised agent. When a corporate debtor becomes incapable of paying its debts, it may apply to NCLT under Section 10 of the Code for initiation of insolvency process against itself. However, it is must for the corporate applicant to prove that it is bonafide insolvent and only then shall the Court proceed against it under the Code.

In most cases, liquidation of companies will be under the regulations of the Code and the direct winding up under the Companies Act, 2013 may be used very rarely.

Click Above

Step 3 – Appointment of Insolvency Professional^[11]

An Insolvency Professional is a professional who is registered with the IBBI and are members of the Insolvency Professional Agency (IPA). Actual work relating to insolvency and bankruptcy is handled by an Insolvency Professional who is monitored by the IPA. It is the duty of the IPA to monitor the work of an Insolvency Professional and also to make sure such members have sufficient knowledge and expertise in such matters. A Financial Creditor under Section 7 shall mandatorily appoint an Interim Resolution Professional while filing an application under Section 7. However, an Operational Creditor under Section 9 may appoint an Interim Resolution Professional (IRP) while filing an application under Section 9, but the same is not mandatory.

An Insolvency Professional is given the power by the Court to effectively run and manage the entity and assets of the entity at all times during the process of resolution as an on-going concern. Being a new legislation, the Code is evolving with every passing day and so are the rights and duties of an Insolvency Professional. An Insolvency Professional has control over the debtors under the supervision of the Committee of Creditors (CoC).

Step 4 – Filing Process in NCLT

After preparation of the draft of application u/s 7, 8 or 9, the same is filed physically as well as electronically before the NCLT. The filing process, as well as documents required for filing the application also changes from time to time, therefore, all professional must stay updated by the same through the IBBI website. The filing process may also differ in different NCLTs.

Step 5 – Acceptance of Application by NCLT and Issue of Notice

The Court needs to be satisfied that there is a default and the corporate debtor is insolvent in order to declare an entity as insolvent and give a moratorium^[12]. Once an Insolvency Application is accepted by Court at the request of the Applicant, the Court issues a notice to the Corporate Debtor to come before the Court on the next date of hearing, to raise an objection, if any. However, if no default is ascertained by NCLT within 14 days, it must record reasons for the same in its order^[13]. The moratorium under Code starts from the Insolvency Commencement date and is in force till the Corporate Insolvency Resolution Process period and during such period no judicial proceedings for recovery, enforcement of security interest, sale or transfer of assets, or termination of essential contracts can take place against the Corporate Debtor however such moratorium does not extend to any sort of criminal proceeding against the Corporate Debtor.

Step 6 – Insolvency Resolution

The Insolvency Professional appointed by the applicant takes over the Insolvency process of the Corporate Debtor as soon as moratorium begins. The IRP makes a public announcement for calling other creditors and forms a committee of all the Creditors. Since this is a time bound process, there is a time limit for everything. Therefore, the creditors must check the website of Code from time to time to avoid any delays. The Insolvency Professional can be changed by the CoC by voting. Meetings are held of the CoC’s within equal intervals of time to further the cause of the Insolvency procedure. The CIRP ought to conclude within the moratorium. The latest amendment of the Code has increased the moratorium period to 330 days which includes time spent in legal proceedings such as appeals or writs that may be opted for by the parties. However, if the Resolution process does not complete in the given time frame of 330 days, 90 days extension may be given which is subject to no extension whatsoever^[14].

A Resolution Plan can provide for the restructuring of the Corporate Debtor such as amalgamation, merger or demerger^[15] and once the plan is approved by NCLT it is binding on Central and State Government as well as local authorities in terms of statutory dues^[16]. CoC has the power to liquidate the Corporate Debtor before the Resolution Plan is passed. It has also been clarified by the latest amendment that if there are number of creditors belonging to the same class, then they must be represented by an authorised representative, who shall attend the CoC meeting in lieu of those creditors, but the authorised representative shall make sure to obtain consent of the creditors on any decision it takes on behalf of them^[17]. The operational creditors have an extended right under the amended Code which provides that they should recover an amount equivalent to the amount they would have recovered under the process of liquidation of the Corporate Debtor^[18].  

Conclusion

The Insolvency and Bankruptcy practise in India boast of, probably the single largest body of case laws currently. There is no stability due to the frequent changes in the legislature. However, the Code has come in the form of blessing for the creditors and financial institutions. It has formulated the basis of insolvency practise in India. Insolvency is a lucrative practise and time-bound process. It has made the lives of many individuals and entities easy.

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.

Endnotes

^[1] (Insolvency Resolution Process for Corporate Persons) Regulations, 2016.

^[2] S. 5(7), Insolvency and Bankruptcy Code, 2016.

^[3] S. 5(8), Insolvency and Bankruptcy Code, 2016.

^[4] Company Appeal (AT) (Insolvency) No. 07 of 2017

^[5] Company Appeal (AT) (Insolvency) No. 616 of 2018

^[6] S. 5(20), Insolvency and Bankruptcy Code, 2016.

^[7] S. 5(21), Insolvency and Bankruptcy Code, 2016.

^[8] S. 5(5), Insolvency and Bankruptcy Code, 2016.

^[9] Writ Petition (Civil) No. 43 of 2019

^[10] S. 5(5), Insolvency and Bankruptcy Code, 2016.

^[11]

^[12] Refer to Section 14 of the Act.

^[13] S. 7(4) and 7(5), Insolvency and Bankruptcy Code, 2016.

^[14] S. 12(3), Insolvency and Bankruptcy Code, 2016.

^[15] S. 5(26), Insolvency and Bankruptcy Code, 2016.

^[16] S. 31(1), Insolvency and Bankruptcy Code, 2016.

^[17] S. 25A, Insolvency and Bankruptcy Code, 2016.

^[18] S. 30(2) (b) and 30(4), Insolvency and Bankruptcy Code, 2016.

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This article has been written by Utkarshini Jamuar.

Introduction

Adultery is derived from a French word, about that has evolved from the Latin verb, “adulterium”, means to corrupt[1]. Adultery is defined as the consensual extramarital sexual relationship that is considered objectionable on social, religious and, moral and earlier on the legal grounds as well.

Though adultery is decriminalized, it still exists as a delinquent act as it violates social norms which an individual are believed to be followed. 

Since the last 158 years, it was treated as a crime but after the verdict of Hon’ble Supreme Court in Joseph Shine v. Union of India, adultery is decriminalized and remained merely a civil wrong rather criminal offence. There were two major contentions for the decriminalization of adultery. They were:-

This section provided husbands with the right to prosecute their wives’ adulterer while wives were deprived to complain against the adulteress of their husbands.

The section was ignorant on the matter of the adulterous act of the husband.

Adultery according to religion

India is a country known for its unity in diversity. Our country is a secular country where sentiments of all the religions are equally respected. Every religion follows its own views and objectives. However, in the matter of adultery more or less every religion is highly critical. Different religions have different views on adultery but the core view remains the same. In every religion, adultery is treated as a crime. However, the forms of punishment may vary among religions. It is treated as a delinquent act as it violates the religious sentiment of every religion. 

Since time immemorial it is considered to be a sin not only on the religious or legal ground but on the spiritual ground as well.

• Traditional Hindu views regarding adultery are that it creates disorder in the society and degradation of family value. In Hinduism, marriage is a sacrament, believed to be for seven consequent births, where both the spouses are supposed to be loyal to each other. They are believed not to have a sexual relationship other than their spouse.
• According to Islam, adultery, rape, and fornication which are unlawful are considered as Zina. According to the Quran, Zina is huded crime for what punishments are fixed by god. The punishments range from amputation of hands and crucifixion to public lashing to public stoning to death. In particular to adultery, according to Quran, an adulterous person should be stoned to death[2].
• According to the Bible, adultery as a sin deserving death for both men and women. Adultery is treated as unethical and immoral and evil for the society.
• According to Buddhism, sexual intercourse outside wedlock is a sin that increases sufferings. In Buddhism, adultery is the 3rd of the five fundamental precepts that one must refrain.
• According to Judaism, which is one of the ancient religions, there is a provision of the death penalty for both adulterer and adulteress.  

Adultery according to law

In India, Section 497 of Indian Penal code (IPC) 1860, defined adultery as:

“Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine or with both. In such a case, the wife shall not be punishable as an abettor”.

In 2018 section 497 was struck down by Supreme Court in the case Joseph Shine v. Union of India unanimously by the constitutional bench of five judges comprising of Justice Deepak Mishra, Justice Ajay Manikaro Khanwilkar, Justice Rohinton Nariman, Justice D.Y.Chandrachud and Justice Indu Malhotra. It was also held that in that matter if any aggrieved spouse commits suicide, based on the evidence could be treated as an abetment to suicide attracting section 306 of Indian Penal Code (IPC). However, though section 497 got decriminalized, it continued to be treated as valid ground for divorce according to the pronouncement of the then Chief Justice Deepak Mishra and justice A.M.Khanwilkar in the instant case.

In the instant case, petitioner was Mr. Joseph Shine, a hotelier from Italy, though he was personally unaffected by the law. His petition was accepted in the view of the locus standi (right or capacity to bring an action or to appear in a court) in Public Interest Litigation (PIL) cases with an objective of welfare of the society and to bring justice in the society.

The petitioner argued that the law deprives women of the fundamental right to sexual autonomy. While government, on the other hand, argued it as an essential element to maintain the sanctity of marriage, although also recognized section 497 as discriminatory against women and proposed to make the offence of adultery as gender-neutral.

In the case it was held that criminalization had restricted the following rights of women:-

• Right to sexual autonomy as provided under Article 21(Right to life) of the constitution.
• Right to sexual expression as provided under Article 19(Right to freedom) of the constitution.
• Right to equality as provided under Article 14(Right to equality) of the constitution. 
• Right against discrimination as provided under Article 15(Right against discrimination) of the constitution.
• Interference of state in personal matters of an individual. However, this applies for both men as well as women.

The then Chief Justice of India Hon’ble Justice Dipak Mishra and A.M Khanwilkar held that section 497 of IPC creates differences on the basis of gender stereotypes that create a dent indignity of women. They also stated that the emphasis on the consent of the husband that amounts to the subordination of women. Also, it violates Article 21 of the Constitution. According to them, adultery is not a crime but they said that adultery is better to be left as a ground for divorce. Thus, they declared Section 497 of IPC unconstitutional and also declared Section 198 of Cr.PC in relation to the offence of adultery as unconstitutional.

According to Justice Nariman, Section 497 of IPC read with Section 198 of Cr.PC 1973 is violative of Article 14, 15(1) & 21 of the constitution of India.

Justice D.Y.Chandrachud stated that Section 497 lacks determining principle to criminalize consensual sexual intercourse and is manifestly arbitrary. He also stated that Section 497 creates the subordinate status of women in marriage and society and thus violates Article 14 of the Constitution. He also stated that Section 497 is gender stereotype about the role of women and thus, in turn, violates Article 15 of the Constitution. He also stated that Section 497 of IPC also violates Article 21 of the Constitution as it does not provide dignity, liberty, privacy and sexual autonomy.

Justice Indu Malhotra stated Section 497 as being violative of article 14, 15 and 21 of the constitution[3]. According to her,

“A legislation that perpetuates such stereotypes in relationships, and institutionalises discrimination is a clear violation of the fundamental rights guaranteed by Part III of the Constitution. There is, therefore, no justification for the continuance of Section 497 of the IPC as framed in 1860, to remain on the statute book.”

Thus, the 5-Judge constitutional bench of the Hon’ble Supreme Court unanimously struck down Section 497 of IPC as being violative of the golden triangle of the Constitution ie, articles 14, 19 and 21 of the Constitution.

This section was also gender-biased as it forbade women from being punished as only men were punished for an adulterous relationship. Also, the section treated women as victims even though both men and women were the equal parties of the act.

Due to the decriminalization of section 497, women can no longer be treated as the property of their husbands. Before decriminalization, if the consent of the husband of a married woman was obtained, the act was not then termed as adulterous. Thus, section 497 objectified the status of women in society and also violated the provisions of the constitution.

 The most significant effect of decriminalization was the removal of section 198(2) of Civil Procedure Code (CPC) which stated that:

 “For the purposes of subsection (1), no person other than the husband of the woman shall be deemed to be aggrieved by an offence punishable under section 497 or section 498 of the said Code: Provided that in the absence of the husband, some person who had care of the woman on his behalf at the time when such offence was committed may, with the leave of the Court, make a complaint on his behalf.” 

Before decriminalization, women were deprived of the right to file a case against the adulterous act of the husband if involved with another woman. 

The Hon’ble court also looked upon the precedents before arriving in the decision, like Sowmithri Vishnu v. UOI 1985[4], Yusuf Abdul Aziz v. The State of Bombay 1954[5] and V. Revathi v. UOI 1988[6]. Though these cases were dismissed by the then Hon’ble judges making adultery a criminal offence definitely these cases paved the way of decriminalization in the case Joseph Shine v. UOI.

In the case of Yusuf Abdul Aziz v. State of Bombay[7], 1954, the petitioner questioned whether section 497 of IPC ultra vires Article 14 & 15 of Constitution. It was held that Section 497 of IPC does not violate any article of the Constitution. But petitioner put forth some points which were taken in Joseph Shine’s case as the offence of adultery can only be committed by man but in absence of any provision to the contrary the woman would be punished as abettor but he last sentence of Section 497 of IPC prohibits it as,

 “…. in such case the wife shall not be punishable as abettor”.

The judge dismissed the case by stating the significance of Article 15(3) of Constitution.

In case Smt. Sowmithri Vishnu v. UOI, 1985[8], several points were criticized, like, Section 497 confers husband the right to prosecute the adulterer but does not confer any right to wife to prosecute the woman with whom her husband has committed adultery. A man whether married or unmarried if has a sexual relationship with a married woman is termed as adultery but this very Section 497 of IPC does not take account of cases where the husband has a sexual relationship with unmarried woman, thus paving a way to give free license under the law to have an extra-marital relationship with unmarried women. Thus, assuming women like chattel or the property of men. 

Adultery as a ground of divorce

Supreme Court suggested that adultery could be a ground of divorce and carry civil penalties, but not a criminal offence.

According to the Hindu Marriage Act, 1955 Section 13(1), any voluntary sexual intercourse with a person who is not the spouse, is a ground for divorce. Section 10 of the Hindu marriage Act, 1955 defines adultery as a ground for judicial separation.

Section 22 of the Indian Divorce Act made the provisions of judicial separation on the ground of adultery.

The Special Marriage Act, 1954, stated that if a person had voluntary sexual intercourse outside the wedlock, is a valid ground for divorce.

Conclusion and suggestions

According to me, decriminalization of adultery is a constructive step towards a progressive society by striking down the law which deprived the dignity of women. It is a deviant behaviour as it is unethical and immoral as it violates the sanctity of the institution of marriage which is believed to be a sacred institution of society.

However, this is just in the halfway. Our country still has to cover a long way in order to eradicate discrimination and to ensure gender equality. I am of the opinion that society should also rise from the patriarchal mindset.

In order to ensure the sanctity of marriage which according to me is a necessity in every aspect whether being religious, legal or spiritual, everyone should be more careful and sensitive towards the institution of marriage and family system as it is the fundamental unit of society.

Endnotes

[1] https://www.scconline.com/blog/post/2019/02/21/adultery-s-497-ipc-and-s-1982-crpc/

[2] https://www.advocatekhoj.com/library/lawareas/divadultery/6.php?Title=Adultery%20Divorce&STitle=Adultery%20Islam 

[3] https://www.sci.gov.in/supremecourt/2017/32550/32550_2017_Judgement_27-Sep-2018.pdf

[4]  AIR 1985 SC 1618

[5] AIR 1951 Bom 470

[6] AIR1988 SC 835

[7] AIR 1951 Bom 470

[8] AIR 1985 SC 1618

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 Offence of Adultery in India- A Study appeared first on iPleaders.