This article is written by Hema Modi, a second year student of Pravin Gandhi College of Law, Mumbai. It provides an in depth knowledge and critical evaluation of abetment in the Indian Penal Code covered under Section 107 to 120, along with landmark judgements in relation to it.

Introduction

To understand ‘Abetment’, we must first understand the meaning of the term “abet”. The literal meaning of the term ‘abet’ is ‘to encourage or assist someone to do something wrong, especially in committing a crime’.

Section 107 of Indian Penal Code defines abetment as: 

“A person is said to abet the doing of a thing, who: 

1. Instigates any person to do that thing,
2. Engages with one or more other person or persons in any conspiracy for the doing of that thing,
3. Intentionally aids, by any act or illegal omission, the doing of that thing.

Explanation: if any person provokes, allures, persuade, threatens, conspires, commands or intentionally helps any person in doing an illegal act or those acts which are recognised as crime is said to abet that person.”

In the case of Kartar Singh v. State of Punjab, the Supreme Court has defined the meaning of the word ‘abet’ in its judgement.

Parties to a Crime

The parties to a crime are the defendants or accused culprits who have committed the crime. In law, different roles are played by different people in the commission of a crime. They are:

1. Principal offender – the main perpetrator of an offence.
2. Joint principals – the persons sharing the same actus reus, i.e., action to commit a crime.
3. Innocent agent – the person who is unknowingly involved by the principal.
4. Secondary parties – the person who acts as accessories or accomplishers to the crime.

In abetment, the person who had mens rea, but was not involved in actus reus is punishable. The offence of abetment depends upon the intention of the person who abets, and not upon the act which is actually done by the person whom he abets.

Law Relating to Abetment

Chapter V of the Indian Penal Code provides for the law which governs the liability of all those people who are considered to be the abettor in the commission of an offence.

Abetment and Abettor

The abettor, as defined under Section 108 of IPC, is the person who abets in the: 

1. Commission of an offence.
2. Commission of such an offence if done by a person not suffering from any mental or physical incapacity.

However, under this section, an abettor can escape from liability if there is an express withdrawal or revocation of the task given by him. Moreover, a person cannot be charged on the ground of having given evidence in support of any charge or crime.

In order to charge any person under abetment, it is not necessary that the act has to be committed. Even if the act is incomplete or interrupted, the offence of abetment is said to be committed.

Moreover, the offence of abetment depends upon the intention of the person and not upon the knowledge or intention of the person whom he has employed to act for him. 

Abetment of an act of abetment is also an offence under this section and hence is punishable. For example: if A abets B to abet Asst. Surgeon to make a false report of an autopsy. For this act, both A and B shall be held liable for abetment not depending upon the success of such an act.

Principle and Scope of the Provision

There are lots of crimes provided by the Indian Penal Code which are illegal and punishable in India. Some of the offences attract joint liability of two or more people and in some cases, there are persons who may not be directly involved in committing the offence but through other means like instigation, assistance and cooperation enable others to commit a crime. These persons are said to facilitate the offence. However, they are not free under the law. They are liable and guilty of facilitating the crime or an offence in the same manner as the person who committed that offence.

Chapter V of the Indian Penal Code covers the different ways in which such assistance or abetment can be provided so as to make those persons liable under criminal law. 

The definition of abetment as provided is general in nature as it contains the abetment of a ‘thing’ which consists of commission or non-commission of an offence also.

Important Element: Mens Rea

For proceeding against a person for the offence of abetment, the proving element of mens rea lies to the prosecution i.e., if the prosecution has to prove the intentions of the person to charge him/her for abetment. Negligence, carelessness or facilitation cannot punish the guilty as per this provision. The abettor has to ‘intentionally’ aid in the commission of the crime.

The mere proof that the crime charged could not have been committed without the involvement or the interposition of the abettor is not enough to charge the accused abettor. 

The main ingredients of abetment i.e., instigation or intentionally aiding any person to commit an illegal act, engaging with someone with the intention to do any illegal act must be proved for accusing any person.

This shows that mens rea i.e., intention to commit an act is an important element than actus reus to accuse the guilty.

Abetment by Instigation

‘Instigation’ means to suggest or stimulate a person to do act by means of language, made directly or indirectly, in the form of express solicitation or encouragement or mere gesture indicating beating, etc. The fact of the case helps us to decide the element of instigation. However, a word uttered in a fit of anger or emotion, not intending the further consequences to follow, is not an ‘instigation’.

The element of intention plays an important role in determining whether a person is guilty or not. He must have intentionally done something which amounted to instigation for another to do an illegal act.

Advice per se does not necessarily amount to instigation. Advice amounts to instigation only if it was meant to actively suggest or stimulate the commission of an offence. 

A mere acquiescence or permission does not amount to be guilty of abetment by instigation. It implies the knowledge of the criminality of an act i.e., the abettor must have full knowledge of the act of which he is instigating. The words which were spoken and amounted to permission will depend on the position of the speaker and the occasion on which they are spoken to charge that person for abetment by instigation.

Also, mere presence on the scene as a silent passive spectator does not amount to abetment.

The only condition required to be fulfilled to prove any person to be guilty under this section is by the relevance to the thing that was done and not to the thing that was likely to have been done by the person.

Abetment by instigation is of two types. They are:

1. Direct instigation – an act which is done on the direct command and active simulation of another person. 
2. Instigation by letter – an act committed by instigation through posts or letters. The offence of instigation completes as soon as the addressee i.e., the person who is being abetted comes to know of such a thing.

Sanju v. State of M.P (2002) 

This case is one of the landmark cases of Abetment to suicide.

FACTS: there was a fight between the husband and wife. In the heated arguments, the husband told the wife to “go and die”. After two days, the wife committed suicide and there was a dying declaration of the deceased. 

JUDGEMENT: mere pronouncing of the phrase “go and die” does not amount to abetment in any form. The element of mens rea has to be present necessarily. Moreover, the suicide was committed two days after the quarrel and hence this shows that the suicide was not the direct result of the fight. Hence, this shows that the husband cannot be held liable for the suicide of his wife under the section of abetment.

Instigation in Dowry Death Cases

A person can be held liable under abetment for the cases of dowry death. According to the report of Indian National CrimeRecords Bureau, in every 90 minutes, there is a death of a woman due to dowry related matters. There are the following ways in which a person can be held liable for abetment.

1. CASE 1: husband/any relative can be held liable as an abettor for instigating his wife to commit suicide.
2. CASE 2: The relative of the husband/any person can be held liable for instigating her husband to kill her.

Case 1: Husband/any relative can be held liable as an abettor for instigating his wife to commit suicide

There are cases where the husband/any relatives either directly or indirectly i.e., either by expressed languages or by gestures for dowry or other related matter which instigates the woman to commit suicide.

Illustration 1: There was a woman named Sumana and her husband. Sumana’s husband was not able to repay his loan for a long time. In frustration, he brought poison and said: “consumed it and die”. In that emotional mood, Sumana consumed it and died. It was held that the husband was liable to commit an offence under this section of abetment.

Illustration 2: There was a woman who had a mother-in-law. She used to instigate her through her gestures (not by expressed words), to commit suicide for the dowry which was not up to her demand. Due to repeated cruel actions, the woman suffered mentally which led her to commit suicide. Here, mother-in-law is liable to abetment by instigation.

A similar situation arose in the case of Protima Dutta v. State of West Bengal, where any such gestures or conduct by her mother-in-law led to committing of suicide by the woman.

CASE 2: The relative of the husband/any person can be held liable for instigating her husband/any person to commit any offence against her

Another case where the relative of the husband or any person like the girlfriend, etc. can be held liable to be an abettor for instigating that husband to kill her wife. It happens when there is jealousy, selfishness, etc. 

Illustration: There was a husband who was living separately with another woman leaving his wife at her in laws place from where she was not allowed to go anywhere outside the house. Upon the instigation both by his girlfriend for second marriage and by his parents for the dowry money, he murdered his wife. Here, both his girlfriend and the family members of him were held liable under the abetment section for instigation.

Abetment by Conspiracy

Conspiracy consists of a combination and agreement by persons, to do some illegal act or effect a legal purpose by illegal means.  For constituting an act of abetment by conspiracy, there must be two or more people involved in the conspiracy and an illegal act must take place in pursuance of that conspiracy. It is not necessary that the one who conspires be engaged in the action to be carried out. It is sufficient if he/she engages in the conspiracy and have a common object to do that thing and the act committed is considered to be the action of all. 

NOTE: Abetment to conspiracy under the clause of Section 107 differs from conspiracy under Section 120A of Indian Penal Code. For an offence under this section, a mere combination of persons or agreement is not enough; an act or illegal omission must take place in pursuance of the conspiracy. On the other hand, under Section 120A, a mere agreement is enough if the agreement is to commit an offence.

Noor Mohammad Momin v. State of Maharashtra AIR 1971 SC 885

In this appealed case, Noor Mohammad Mohim is accused under section 109 of the Indian Penal Code for abetting other three accused for committing the murder of Mohd Nahya for the passage and the right to tap water. The question before the court was the accused i,e, Noor Mohammad Mohim shall not be liable under Section 109 of IPC. 

In this landmark case, the Supreme Court of India held that the ambit of Section 120A i.e., criminal conspiracy is wider than the section under abetment. It covers wider amplitude of illegal commission or omission of an act. Moreover, it was also held that the presence of abettor-accused is not always necessary for abetment by conspiracy in this case.

Abetment by Intentional Aiding

The third clause under Section 107 is abetment by intentional aiding to do an illegal act or omission of a legal act. In this, the abettor generally facilitates or helps in committing the crime. There is an intention to aid the offender and some act should be done in order to assist him/her.

The element of knowledge plays an important role in abetment by intentional aiding. Mere assistance to the offender without the knowledge of facilitation of committing crime is not abetment.

For better understanding, a person may be invited casually and for a friendly purpose, and if he unintentionally helps his aide to facilitate the commission of crime, it cannot be said that the person has abetted the murder or the crime. 

Here, ‘intentionally aids’ means the ‘active complicity’ in the commission of the act which is the most important ingredient of the abetment by intentional aiding.

Abetment in marriage

The clause ‘Intentionally Aids’ has a wide interpretation which covers the cruelty done to a married woman in committing suicide or other crime. 

In the case of Deena Lal v. State of Rajasthan, a procession followed widow to the funeral pyre of her husband to help her in committing sati. Since sati is abolished and its practise is punishable, the police party tried to stop her from committing that. But the procession barricaded them to restrain them from rescuing her. The people in the procession was held liable for abetting.

Abetment by Illegal Omission

‘Illegal omission’ is used in the definition of ‘abetment’ under Section 107. The clause 3 i.e., abetment by intentional aiding envisages an illegal omission like what has been done by the accused was not to be done by him under the law. For instance, a man cannot be held liable for abetment to suicide if he did not try to stop her wife from committing suicide when she threatened him about that. This is because not stopping her from doing the act is not an illegal omission. On the other hand, if a driver allowed a child to drive knowing that the child did not know driving, therefore will result in an accident and hence an illegal omission took place.

However, mere negligence does not lead to abetment. For example, an officer handed over the keys of the office to the security rather than the manager which was contrary to the rules of the office and the security was charged for stealing from the office. Here, the officer cannot be charged with the offence of abetment for illegal omission because he was not aware of the rules and his intention was not present for committing the offence.

Facilitating the Commission of a Crime

A person is said to be abetting when he/she facilitates another person by way of assistance or supply of materials or something else. For an example, a constable dragged a married girl who was of 19 years of age and her husband from their house and raped her. Another constable who kept watch on her husband outside the room shall be held for abetment because he facilitated the head constable to commit an offence of rape by restraining her husband from rescuing her. This was held in the case of Ram Kumar v. State of Himachal Pradesh.

Effect of Acquittal of Person Committing the Offence on Abettor

A special and exceptional case to the abetment by intentional aid is the acquittal of a person who was abetted for committing an offence which leads to the acquittal of an abettor. In simple words, this means that since in abetment by ‘intentional aid’, the most important ingredients to constitute such an offence are the intention to commit that offence and the further act in consequence of that intention. Therefore, if the principal offender(one who has committed the offence or crime) has been acquitted for the alleged crime, then the abettor cannot be held liable under Section 107 for abetment because if the perpetrator commits no crime, then the person who aids, apparently cannot be punished for that.

This principle was laid in the case of Jamuna Singh v. State of Bihar. In this case, the person who allegedly set the hut on fire was acquitted because of the non establishment of substantive evidence. Consequently, the Supreme court held that no person can ever be convicted for the abetment if the person allegedly responsible for the offence committed has been acquitted because the measure of guilt of abettors depends upon the nature of the act committed and the manner in which it was executed. 

When Substantive Offence is not Established

When the substantive offence is not established and the principal offender is acquitted, then the abettor cannot be held guilty. In simple words, when the substantive charge fails, the charge of abetment also fails. The liability of an abettor is coextensive with the principal offender. If there is abetment by instigation or abetment by conspiracy, then even though the act was committed or not, the abettor will be liable for abetment. But only in the case of abetment by intentional aid, if the act is not completed by the principal offender, the abettor cannot be held liable.

Scope and Ingredients of Section 108

Abetment of Illegal Omission is an Offence

According to explanation 1 of Section 108, the abetment of the illegal omission of an act may amount to an offence although the abettor may not himself be bound to do that act.

For example, if a public servant is guilty of an illegal omission of duty made punishable by the code, and a private person instigates him, then he abets the offence of which such public servant is guilty, though the abettor could not himself have been guilty of that offence.

Abetted Act Need not be Committed: Effect of Abetment is Immaterial

To constitute the offence of abetment, it is not necessary that the act abetted must be committed. The offence of abetment is complete notwithstanding that the person fails in doing the act or there is some interruption in the commission of that act. The offence of abetment by instigation depends upon the intention of the person who abets and not upon the act which is actually done by that person.

Person Abetted Need not be Capable of Committing an Offence

It is not necessary that the person abetted should be capable according to law of committing an offence, or that he should have the same guilty intention or knowledge as that of an abettor. 

Illustration: A with the guilty intention, abet a child or a lunatic who is incapable under law to commit an offence. Here, even though the act committed or not, will be held liable for abetment.

Abetment of an Abetment is an Offence

The abetment of an abetment of an offence is no more and not less than the abetment of that particular offence and hence it is also punishable. According to this clause, a person may make himself an abettor by the intervention of a third person, without any direct communication between himself and the person employed to do that thing. For example, A telephoned B and asked for two boys for immoral purposes. No particular boys were named or indicated. It was held that A was inciting B to help him or facilitate him with boys to do an illegal act. Hence both A and B will be liable here.

Abettor Need not Concert in Abetment by Conspiracy In the conspiracy 

It is not necessary for the commission of the offence of abetment by conspiracy that the abettor should concert or accord the offence with the person who commits it. It is sufficient if he engages in the conspiracy in pursuance of which the offence is committed.

A person who has been convicted of an offence as a principal offender cannot be punished for abetting it under this.

Liability of an Abettor

Section 111 of the Indian Penal Code provides for the liability of an abettor. According to this section, an abettor is liable for the acts done in the same manner and to the same extent as the principal offender shall be. The only exception is when the act done is the probable consequence of the abetment and was committed under the influence of the instigation, conspiracy or intentional aid.

The probable consequence of an act is one which is likely or which can be reasonably expected to follow from such abetment. Moreover, the proof of the probable consequence is very essential. If what abettor had said is not proven, then the abettor cannot be held guilty for the act done.

However, suppose A instigates B to resist by force a distress made by a public servant. B, in its consequence of resisting voluntarily causing grievous hurt to the public servant. Then, here A and B will be liable for punishment of both offences if A knew it was likely to be followed by B.

Further, if an act is done upon abetment which is different from the one abetted and the effect of that act is different, then the abettor will be held liable for that act in the same manner and to the same extent because the intention remains the same and the abettor was well aware of the probability of that act.

Effect of Acquittal of principal offender on abettor

It is not necessary that in every case, the principal offender is put up at the same trial and must be convicted of the offence charged before the abettor can be convicted of the abetment of that offence. Generally, it is true that there can be no conviction for abetment until the act has been committed. However, this proposition is not universal and absolute. There may be a case where the proof is insufficient for the conviction of the offender but sufficient for the conviction of abettor. Here, the court may acquit the offender on the basis of benefit of doubt and convict the abettor on the relevant evidence and the fact.

Overview of the Provisions of Sections 109 to 120, Indian Penal Code 1860 

Scope of Section 109

Section 109 lays down that if IPC has not separately provided for the punishment of abetment as such, then it is punishable with the punishment provided for the original offence. Since law does not provide any specific form or gesture to be followed for instigation, therefore the question whether there is instigation or not is to be decided upon by the facts of the case. For the second clause of abetment, there must be some act or illegal omission in pursuance to that conspiracy and under the scope of section 109, the act which comes under criminal conspiracy, makes the person guilty under section 120B and for cases other than criminal conspiracy, a person is charged with abetment which is generally proved offence. For the intention to aid, the act which is done shall be taken into consideration and accordingly punishment will be given to the offender as well as an abettor.

Distinction between Sections 34, 109 and 120B, Indian Penal Code 1860

According to Section 34 of the IPC, when a criminal act is done by several persons in furtherance of common intention of all, each of such person is liable for the act in the same way as if it were done by him alone.

According to Section 109 which provides for the punishment for the offence for which there is no express provision made and the act is in consequence of the abetment by conspiracy.

Section 120B of IPC provides for the criminal conspiracy consisting of two or more persons having the intention to commit the act which is illegal in nature.

There is a thin line of difference between the conspiracy as defined under Section 120 and common intention as defined under Section 34 of the IPC. Under Section 120, bare engagement and association to break the law is enough for the liability even though the act has been committed or not but under the Section 34, the commission of a criminal act in furtherance of common intention of all the offenders is necessary. This shows that the amplitude of substantive offence is wider in the case of criminal conspiracy than the abetment or incitement.

Moreover, Section 109 can also be attracted here, which says that for abetment by conspiracy, some act or illegal omission must take place to make a person guilty under this section.

However, when Section 120 and 109 are read together, it makes us clear that when the act abetted is committed in consequence of the abetment, the accused shall be punished with the punishment provided for the offence abetted.

For better understanding, if an accused is found guilty and convicted for the offence of murder, then the only punishment is imprisonment for life or death. So when it is read with Section 34 and sentenced to imprisonment for life, then there is no need to record the punishment under Section 120.

In a case of Sayed Mohd. V. State, the accused was charged under both Section 34 and Section 120, but on appeal, it was held that Section 120B, being, wider than Section 34, so if charges are framed under 120B, then charges under Section 34 becomes redundant.

Whether Different Sentence to Principal Offender and Abettor is Justified

A person who has been convicted of an offence as principal offender, cannot be punished for abetting it. This is because the one who has been abetted may be under the influence of the abettor or may be incapable because of the age, mental illness or incapacity and therefore if he/she commits that offence, the law cannot recognise them. Moreover, since the two most important element of commission of crime is mens rea and actus reus. Since the person abetted has no mens rea, he cannot be equally liable or guilty for the offence he/she has committed.

On the other hand, an abettor is one who is of sound mind and has requisite mens rea for the commission of that act. From his/her act of abetment, it can be concluded that he intentionally wanted that act to be committed, without directly getting involved in it. Although the second element i.e., actus reus is not fulfilled in such cases, yet they should be punished severely because abetment by instigation, conspiracy or intentional aid is the act which is done by the abettor which makes him guilty under criminal law. 

Moreover, a person who commits the actus reus of murder with malice aforethought, or who with the appropriate mens rea aids or assists another to do so, may have the defence of diminishing responsibility which might reduce his liability. But the principal who does an act of offence under provocation would be entitled to a heavier verdict than someone who aids or abets him without provocation.

Principle Underlying Section 110 and Scope of the Provision

Section 110 of IPC under Abetment deals with the punishment for abetment if the person abetted does an act which has different intention from that of an abettor. It provides that though the person abetted commits the offence with different intention or knowledge, yet the abettor will be punished with the punishment for the offence abetted. This shows that the liability of the person abetted is not affected by this section.

Moreover, this section is usually read with clause 3 of Section 108 which says that the incapability of the person under the law is no excuse for the abettor. It is not necessary that the person abetted should have the same guilty intention of that of an abettor.

The principle underlying this section is very clear that the abettor cannot escape the liability of punishment even though there is a different intention of the person abetted while doing that act.

Scope and Applicability of Principle of Probable Consequence

The Principle of Probable Consequence has been contemplated under Section 111 of Indian Penal Code which is the main part of this section. According to this section, when an act is abetted and a different act is done, the abettor is liable for the act done in the same manner and to the same extent as if he had directly abetted it. The only condition required here is the probable consequence of the abetment.

A probable consequence is one which is likely or reasonably expected to follow from such an act. The concept of probable consequence arises when the act abetted is different from the actus reus. In this case, the abettor will not be liable for the act he abetted but shall be liable for the act which has been committed by the principal offender knowing the probable consequence of his abetment. 

The proof of probable consequence is very important. For instance, an act abetted was of thrashing and the act committed was of stabbing, then since the act of stabbing is different from the act of thrashing, therefore, the proof must show that the act of stabbing was under the influence of the instigation, and there was a probable consequence of abetment by instigation to commit the act of thrashing.

Principle Underlying Section 112

Section 112 is an extension of Section 111 of Indian Penal Code. According to Section 111, if the act committed is different from the act abetted but it is a probable consequence of abetment and is done under the influence of instigation or aid or pursuance of an abettor, the abettor is liable or guilty to be punished in the same manner as the act done. 

Further Section 112 explains that if the act abetted is done along with another act which is the probable consequence of abetment, then the abettor is liable to be punished for each of the offences.

The principle underlying both the sections is that every man is presumed to have the intention of the natural consequences of his/her own act and hence should be punishable for the act.

Principle Underlying Section 113

According to Section 113, if the effect caused by the act abetted is different from the effect intended by the abettor. But if the effect caused was known to the abettor, the abettor is liable for the effect caused, provided that he/she knew that the act abetted was likely to cause that effect.

The only difference between Section 111 and Section 113 is that in Section 111, the act abetted was different from the act committed and in Section 113, the act abetted was same as the act committed but its effect was different.

Scope of Section 114

Section 114 deals with the case, where there has been a crime of abetment and the actual commission of the crime in the presence of abettor. Under this section, it becomes necessary for the prosecution to prove abetment and the presence of the abettor at the time the act abetted was committed. However, the mere presence of a person will not render him liable for the offence committed. He must be sufficiently near to give assistance, and there must be a participation in the act. Here, the abetment has to be complete although the abettor’s presence at that place. 

This section, in English Law, is called as ‘principals in the second degree’. For instance, a blow is struck by A, in the presence of, and order of, B, here, both are principals and liable for the offence.

Active abetment at the time of committing the offence is covered by Section 109, and Section 114 is intended for an abetment prior to the actual commission of the crime any time before the first steps have been taken to commit it.

Quantum of Punishment: Distinction between Sections 115 and 116, Indian Penal Code 1860

Section 115 provides for the punishment of abetment for the offence which is punishable with death or imprisonment for life:

Section 116 provides for the punishment of abetment for the offence which is punishable with imprisonment for life:

Comparison of Provisions in Sections 115 and 116

The provision of Section 115 punishes the abetment of certain offences which are either not committed at all, or not committed in consequence of abetment, or only in part committed. It is applied only when the abetment is not punishable under any provision.

Whereas Section 116 provides for the abetment of an offence punishable with imprisonment because there is no provision relating to abetment of an offence punishable with fine only. An essential ingredient of an offence under Section 116 is that there should be no express provision in the Penal Code to punish such abetment.

Punishment for Concealing Designs or Plans to Commit Offences 

Penalties Provided in Sections 118, 119 and 120, Indian Penal Code 1860

According to Section 118, any person who intentionally facilitates or has sufficient knowledge that he/she will thereby facilitate the commission of an offence shall be punished with death or imprisonment for life. This section also covers that if any person voluntarily conceals by any act or omission or by any other hiding tool, the nature or the process by which the act will be committed, then he/she shall be liable under this section. If the act which is concealed, if committed shall be punished with imprisonment for seven years or fine and if the act if, not committed, shall be punished for three years or fine.

According to Section 119 lays emphasis on the guilty of a public servant for committing abetment. If a public servant intentionally facilitates or has sufficient knowledge that he/she will thereby facilitate the commission of an offence, which is his duty to prevent, shall be liable under this section. If the act is committed, then the public servant shall be punished with one half of the longest term of such imprisonment or with fine or both. If the act is not committed, then the public servant shall be punished with one-fourth of the longest term of such imprisonment or with fine or both.

According to Section 120, if  any person who intentionally facilitates or has sufficient knowledge that he/she will thereby facilitate the commission of an offence which has punishment of imprisonment and he/she voluntarily conceals or makes false representation, then if the act is committed, shall be liable for one fourth of the longest term of punishment or fine or both and if the offence is not committed, then he/she shall be liable for one-eighth of the longest term of punishment or with fine or with both.

Conclusion

Abetment as a provision has been sufficient both from the view of the offence as well as the penalty for the offenders of abetment. However, with the development of technology and looking at the current scenario, the legislation of India has tried to bring the required changes in this provision. Through the Information Technology (Amendment) Act, 2008, the section has been amended so as to give a wider meaning to the act and omission by the use of encryption or any electronic method. 

Therefore, we can say that abetment as an offence is a just and fair law which enhances the principles of natural justice in the legal 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.

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This article is written by Shristi Suman, a second-year student of Symbiosis Law School, Hyderabad. In this article, the scope, ingredients, and different aspects related to the offence of cheating under IPC have been discussed.

Introduction 

Cheating is considered as a criminal offence under the Indian Penal Code. It is done in order to gain profit or an advantage from another person by using some deceitful means. The person who deceives another knows for the fact that it would place the other person in an unfair situation. Cheating as an offence can be made punishable under Section 420 of the IPC.

Scope of Section 415

Cheating is defined under Section 415 of the Indian Penal Code as whoever fraudulently or dishonestly deceives a person in order to induce that person to deliver a property to any person or to consent to retain any property. If a person intentionally induces a person to do or omit to do any act which he would not have done if he was not deceived to do so and the act has caused harm to that person in body, mind, reputation or property, then the person who fraudulently, dishonestly or intentionally induced the other person is said to cheat. Any dishonest concealment of facts which can deceive a person to do an act which he would not have done otherwise is also cheating within the meaning of this section.

Essential Ingredients of Cheating

The Section requires:

• deception of any person.
• fraudulently or dishonestly inducing that person to deliver any property to any person or to consent that any person shall retain any property; or
• intentionally inducing a person to do or omit to do anything which he would not do or omit if he were not so deceived, and the act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property.

Important Ingredients of Deception and Inducement

Deception 

One of the important ingredients which constitute the offence of cheating is deception. Deception can be done to induce the other person to either deliver or retain the property or to commit an act or omission. Deceiving means to make a person believe what is false to be true or to make a person disbelieve what is true to be false by using words or by conduct.

In the case of K R Kumaran vs State of Kerala, a person who was admitted in the hospital was checked by the doctor and the doctor knew that the person was in a condition that he won’t be able to survive. The doctor conspired with other accused to issue a life insurance policy for the person was going to die and in order to do so, he certified to be fit and healthy. This was done by accused in order to get the amount from the insurance company after the patient dies. The court held the accused liable for the offence of cheating and deceiving the insurance company in order to earn benefits. The accused was held guilty of cheating under IPC.

Wilful Representation and Cheating 

In deception, a fraudulent representation or willful misrepresentation of a fact is made directly or indirectly with an intent to commit the offence of cheating. In order to prove the offence, it is not only important to prove that a false representation was made by the accused but also that the accused had the knowledge that the representation was false and wilfully made it in order to deceive the prosecutor. If the accused knowingly makes a representation which is false then the accused can be held liable for the offence of cheating under IPC.

Cheating and Misappropriation

Cheating and misappropriation are closely related. In cheating, the act of misrepresentation starts from the beginning of the act, whereas, in case of misappropriation it is not important that the offence of cheating will start from the beginning. The accused may obtain a property in good faith and then further misappropriate it in order to sell it for an advantage. It may be done against the will or without the consent of the owner. 

It is seen that misappropriation is generally done by a person who is a relative, friend or a known person. The offence of misappropriation is defined under Section 403 of the IPC. It deals only with immovable properties and not with body, mind, reputation, or immovable property.

Deception and Cheating in Connection with False Promise of Marriage

In the case of Deception and cheating with a false promise of marriage, there can be no action for a breach of a promise under IPC unless there is a contract made by parties to marry each other. There are no specific requirements regarding the formation of the contract. It need not necessarily be in writing and there isn’t a particular set of words which needs to be used for the contract of marriage. A promise by one person to marry another will not be a binding promise unless and until that other person also reciprocates and promises to marry the first person. Mutual promises to marry between two parties may be implied from the conduct of the parties. A declaration of intention to marry another person made to a third person will not constitute a proper promise and an offer to marry unless his proposal is communicated to that person whom he intends to marry. It is not necessary that the mutual promises between the parties to be concurrent, it should be made within a reasonable time after the offer is made by a party to another. An action for breach of promise to marry may be taken under deception and cheating.

Inducement

When one person uses deceitful practices to convince the other person to agree on anything which is harmful to that person, it is known as Inducement. It generally occurs when two parties enter into a contract and a party uses fraudulent inducement to gain advantage on the other party. The fraudulent inducement can be done when a person persuades another by giving false information about a thing to be beneficial for that person but in reality, it is not. Fraudulent inducement differs from fraud as inducement needs a person to convince the other person for the object which he wants to achieve and the latter needs the person to commit a deceitful conduct by himself for the object which he wants to achieve.

Effect of Absence of Dishonest Inducement

The offence of cheating does not necessarily need the person who is being deceived is induced to do any act which could cause harm to him. In case there is an absence of dishonest inducement, it is enough to constitute the offence of cheating that the person deceived is induced to an act which is likely to cause harm to him.

Critical Aspects Relating to the Offence of Cheating

Dishonest Intention Should be Present at the Time of Making the Promise

Deception and dishonest intention are important elements to constitute the offence of cheating under IPC. The presence of dishonest intention is important to hold a person guilty of the offence. The fact that dishonest intention was present at the time of making the promise is to be proved in order to hold the accused guilty for the offence of cheating. Dishonest intention at the time of making the promise cannot be inferred by subsequent non-fulfilment of promise.

Absence of Intention to Honour the Promise at the Time of False Representation

The offence of cheating has an element of fraudulent or dishonest intention from the very beginning. When a party makes a false representation to another party in order to gain some profit, the intention to honour the promise at the time of false representation is presumed to be absent. 

Dishonesty is Causing Either Wrongful Gain or Wrongful Loss

Acting dishonestly is defined under Section 24 of IPC as doing an act or omitting to do any act which causes a wrongful gain to one person or a wrongful loss of a property to a particular person. The act done in order to gain a property wrongfully or cause a loss to another person wrongfully is said to be done dishonestly.

False Pretence to be Inferred From Circumstances

False statements and representations made with fraudulent intent in order to gain a profit by cheating are known as a false pretence. It is not necessary that every pretence will be a false one, it has to be inferred from the circumstances. For instance, a person may have induced the credit or delivery of property but still, it might not be sufficient as it can be a false pretence and the credit or delivery would not have been given or delivered. A false pretence can be used where the party wants to come in a contract with the other party. There should be an intention to cheat, deceive or commit fraud on the part of a person. Intention to commit cheating plays an important part. False pretence must be inferred from the circumstances of the case.

Mens Rea as Essential Ingredients of the Offence of Cheating

Mens rea refers to the mental state or intention of a person in committing a crime. It is a mental state of the accused which is taken into consideration while deciding the liability for a crime. Mens rea has to be proved as it an essential ingredient for the offence of cheating. It has to be proved that the accused deliberately committed the offence of cheating with a prearranged plan. If mens rea for the offence is proved then the accused can be held liable for the offence of cheating under IPC.

On the Issue of Damages Caused or Likely to be Caused

Damage to Body, Mind, Reputation or Property Caused or Likely to be Caused

Cheating is done by a person to another by making him believe something to be true which actually is not. Cheating affects a person’s body, reputation or property of which the person may be in possession or ownership of. Cheating can be done by a person who is in a fiduciary relationship, it affects the mind of the person who has been cheated. Cheating can be done by a person by misrepresenting the facts or by using false evidence in order to deceive the other party. The person who is deceived believes the representations made by the party deceiving to be true and then it further miserably affects the person both mentally and physically. Cheating can result in stress, tension, and affect a person’s mental health miserably. It can even result in trust issues and make it difficult for the person who has been cheated on to trust another person again. After being cheated on a person can experience low self-esteem and loss in monetary form by loss of the property.

When no Damage Caused to Complainant

In case when no damages are caused to the complainant by the act of cheating, still the accused according to Section 420 of the IPC will be liable for the offence of cheating as it does create an apprehension in the mind of an individual when he is cheated on by a person. The intention and objective of the person cheating are also taken into consideration and if it is found that the accused had a malafide intention to cheat on the person then the accused will be held guilty for the offence of cheating under Section 420 of the IPC. 

The intention of the accused is important and has to be taken into consideration while deciding the guilt of the accused. Generally, the complaint is filed under Section 420 of IPC when a person suffers from a defect in the services or product which is consumed by him from the cheater, or in case the individual is charged with more price than the MRP for a product or a service, or when a person suffers from losses and damages from unfair trade practices etc. but in case if the person cheated on does not suffer from a monetary loss or damage, the accused can still be held liable for cheating under Section 420 of the IPC.

When no Benefit Accrued to Accused but Loss to Complainant 

Since cheating is both a civil as well as criminal wrong and if there is no benefit enjoyed by the other party and loss have been inferred to the party who is been cheated, then, in that case, the complainant company can sue the accused for cheating.

In the case of Sebastian vs R. Jawaharaj, it was held that the accused was liable for cheating and forgery under section 420 and 465 of IPC respectively as he cheated on the complainant by providing faulty services to him but still no benefit was enjoyed by the accused after providing faulty services but because of it the complainant suffered from losses.

Even if the accused does not earn a profit or enjoys a benefit but the complainant suffers a loss then the complainant can bring an action for cheating under IPC.

Sustaining Loss, not a Criterion for Establishing the Offence of Cheating

Under sec 420 of IPC, only a person who is not a consumer of the said cheated goods or did not purchase the services or goods for commercial and selling purpose or is not entitled to enjoy the benefits from the goods or services is not entitled to sue the accused for cheating under IPC. A consumer or a person entitled to benefit from the goods or services can sue the accused for the offence of cheating irrelative of the fact whether any loss was suffered by him or not. Even if the complainant does not sustain a loss, he can still bring a lawsuit under IPC for cheating.

Civil Liability versus Criminal Liability

The intention of the accused is an important aspect to constitute the offence of cheating. It is often seen that in issues relating to commercial transactions, it becomes difficult to separate the offence in terms of civil and criminal liability. The main difference between a criminal cause of action and a civil one is that of intention. If the accused does an act knowingly and intentionally in order to induce the other person then the accused can be held liable for criminal liability. In case the accused does an act after the dispute arose and not pre-planned his act deliberately then he will be liable for civil liability.

In the case of Nageshwar Prasad Sinha V Narayan Singh, the respondent entered into an agreement with the accused. A part of the payment was given in exchange for the possession which was delivered to accused. The accused then failed to make the full payment for the delivery of possession as it was agreed upon by him. The respondent also didn’t complete the legal formalities in relation to the delivery of possession as he did not receive full payment for it. The accused filed a civil suit for specific performance against the respondent. The respondent filed a criminal complaint against accused under Section 420 of the IPC. The court held that the liability of the accused was of civil nature and not a criminal one as the accused made a part of the payment for delivery of possession and it cannot be proved that his intention was to cheat from the very beginning.

The difference between civil and criminal liability can be ascertained by the intention of the accused. The intention of the accused at the time of inducement should be taken into consideration to decide whether the liability of the accused will a civil or criminal liability. Mere breach of contract cannot be considered to be cheating under Section 420 of IPC unless it is proved that dishonest intention was present from the very beginning of the transaction.

Vexatious Criminal Proceeding in Civil Dispute: Imposition of Costs

Vexatious litigation is an action which is brought by a party to harass another party. It is a lawsuit which is solely brought to harass or burden the other party by filing a meritless suit. Vexatious proceedings are considered as an abuse of judicial procedures. The accused is charged with costs in order to compensate the other party for the harassment which was caused by vexatious proceedings.

The provision for imposition of costs on the accused on the vexatious criminal proceeding in a civil dispute is included under Section 35A of the Civil Procedure Code. If the court is satisfied that the criminal proceeding is brought by the accused by a vexatious motive then the court can impose compensatory costs under this section on the accused for the harassment which the respondent suffered because of the proceeding. 

This section applies to suits which are brought with the vexatious motive and to the appeals or revisions. The maximum cost which can be imposed by the court under this Section is Rs 3000 and no appeal lies against an order by the court for compensatory costs.

Punishment for Cheating 

Cheating and Dishonestly Inducing Delivery of Property 

According Sec 420 of IPC when a person cheats and thereby dishonestly induces the other person who is deceived to deliver any property to any other person or makes, alters or destroys the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. Sec 420 of IPC is an aggravated form of cheating.

Simple cheating is punishable under Section 417 of IPC. Section 417 of IPC states that whoever is held liable for the offence of cheating shall be punished with imprisonment for a term which may extend to one year or with fine, or with both fine and imprisonment.

In case where there is delivery or destruction of any property or alteration or destruction of any valuable security from the act of the person who is deceiving, the offence is punishable under Section 420 of the IPC.

Under Section 420 of IPC, it is necessary to prove that the complainant was acting on a representation which was a false representation and the accused had a dishonest intention for it.

In the case of Ishwarlal Girdharilal vs the State of Maharashtra, it was observed by the Court that the word ‘property’ mentioned under Section 420 of IPC does not necessarily include only those properties which have money or market value. It also includes those properties which do not have a monetary value. In case a property does not have a monetary value for the person who is in possession of it but after being cheated by another person it becomes a property of some monetary value for the person who gets possession of it by cheating then it can be considered as an offence of cheating under Section 420 of the IPC and the property will be considered as a property under Section 420 of the IPC. 

In the case of Abhayanand Mishra v. State of Bihar, the appellant was a candidate who applied for M.A. examination to Patna University for permission to appear in the M.A. examination in English as a private candidate. He represented himself to be a graduate who has already obtained his B.A. degree and wants to pursue his M.A. degree from the University. Later, just before the commencement of his entrance examination, it was discovered that the certificates presented by the candidate for his M.A. entrance was forged and he did not actually obtain his B.A. degree. The court held the candidate guilty of making a false statement about him being a graduate as he did not obtain his B.A degree. He made an application and deceived the University and hence, was guilty of attempting to cheat under Section 420 of IPC as read with Section 511 of the IPC.

Cheating by Personation

Under Section 416 of IPC, cheating by personation is explained as if a person cheats on someone by pretending to be a particular person, or if a person knowingly substitutes a particular person for another, or represents a person to be some other person then he is said to cheat by personation. The person substituting a person for another should have knowledge that such other person is a different person from the person he is representing. The offence of cheating by personation is committed when the person who is personated is a real person and not an imaginary person.

In the case of Sushil Kumar Datta vs State, the accused personated himself as a scheduled caste candidate and appeared for the examination of Indian Administrative Service. He was appointed in that cadre because of his false representation of being a scheduled caste. It was held by the court that he was guilty of the offence of cheating by personation under Section 416 of IPC as he did not belong to scheduled caste and falsely represented himself as scheduled caste and hence, his conviction for cheating was held to be justified under the said section. 

Cheating Out of Fiduciary Relation

A fiduciary relationship is any relationship which exists between two parties where they share utmost good faith and confidence for a transaction. Section 418 of IPC applies to the cases of cheating wherein there was a fiduciary relationship between the parties. Cheating out of the fiduciary relationship can be done by guardians, trustees, agents, solicitors, manager of a Hindu Family, managers or directors of a company or a bank in fraud to the shareholders etc. Section 418 of IPC deals with the cases in which trust exists between the parties and there is an abuse of the trust by cheating. Section 418 punishes those parties in the case of cheating who owed a special responsibility towards the other party. The parties are punished for misusing and breaching the trust which existed between them.

It is the liability of parties who are in a fiduciary relationship to protect the interest of the parties and not to misuse the trust which exists between them. It is the responsibility of the party to protect the interest of the other party and if he fails to protect it and breaches the trust by cheating, he can be held liable for the offence of cheating under Section 418 of the IPC. The person who makes a statement in a fiduciary relationship knowing that it is a false statement with dishonest intention then the person will be liable for the offence of cheating.

Intention plays an important part in the offence if there isn’t an intention to cheat then it cannot be established as an offence under cheating. The offence is a non-cognizable offence and is bailable and triable by a Magistrate.

In the case of S. Shankarmani v. Nibar Ranjan Parida, a lawsuit was filed for cheating by a landlord against the bank. The bank wanted to take the landlord’s house on hire and for that, the landlord furnished his house. He incurred a huge expense in furnishing the house but the bank because of some reasons which were under its control could not take the house on rent. The bank did not intend to cheat or deceive the landlord. It was held by the court that the bank was not liable for cheating under Section 418 as the intention which plays an important part in the offence was not present.

Conclusion

Cheating is an offence under IPC in which a person induces the other by deceiving the person to do any act or to omit to do an act. The intention of the accused plays an important part and is taken into consideration while deciding his liability. The two main elements that have to be considered in order to constitute the offence is deception and inducement. The intention to cheat on part of the accused at the time of making a false representation is needed to be proved. It must be shown that a promise was made by the accused and he failed to keep the promise and further, no effort was put in by him in order to keep the promise.

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 Cheating: a criminal offence under the Indian Penal Code appeared first on iPleaders.

This article is written by Nirmalya Bhattacharya, pursuing a Certificate Course in Labour, Employment and Industrial Laws for HR Managers from LawSikho.com. Here she discusses “What are the changes introduced by the new Shops and Establishments Act in Maharashtra?”. 

Introduction

With the introduction of Maharashtra Shops and Establishments (Regulation of Employment and Conditions of Service) Act 2017 (hereinafter referred as MSEA 2017), on December 19, 2017, the previous act, i.e, Maharashtra Shops and Establishments Act 1948 (hereinafter referred as MSEA 1948), has been revoked. If we look into the background and the reason behind enactment of this statute, we will see that in July 2016, Central Government published Model Shops and Establishment (Regulation of Employment and Conditions of Service) Act 2016 and the states were free to adopt the same with necessary state-specific modifications. The introduction of this Model SEA 2016, was having three major reasons behind this – i) to make these legal provisions more contemporary ii) to enhance the ease of doing business and iii) to implement a more or less uniform statute throughout the country.

Maharashtra is the first state to adopt the Model SEA 2016, with few state-specific amendments to remain at the forefront of industrial development and reforms. It is the first state to change the 70 year old statute. Considering the fact that Maharashtra is having two leading commercial and industrial cities of the state – Mumbai and Pune, this is surely a long step forward.

While making the adaptation of Model SEA 2016 and while repealing the earlier applicable statute of 1948, few changes have been introduced.

Applicability of the Act

Employer

Registration of Establishment

Opening Hours & Closing Hours

Close Day and Weekly Holiday

Hours of work, Rest Interval, Spread Over Time and Overtime

Click Above

Holidays, Leaves and Leave Encashment

Compensatory off for Festival Holidays

 Working of Women Workers

Double Employment

Termination of Employment

Inspection and Enforcement

Offences & Penalties

Identity Card

New Provisions in MSEA 2017

• Displaying a list of workers in the managerial, supervisory or confidential role either in the website of the employer or at a conspicuous place of the establishment. These workers will be covered within the scope of the act. [Section 3(11)]
• Casual Leaves of 8 days in a calendar year. [section 18(2)]
• In line with the Equal Remuneration Act 1976, MSEA Act 2017 brings the provision of no discrimination for women workers in matters like recruitment, promotion, wage, training or transfer. [Section 13(1)]
• Earn Leaves shall not be calculated for the availed maternity benefit of the women workers. However, these days shall be taken into consideration for computation of 240 days in a year. [Section 18(8)(b)]
• Crèche Facility for establishments employing 50 or more workers. A group of establishments may operate a common crèche within a radius of one kilometre, subject to prior conditional permission by the Chief Facilitator. [Section 23]
• Canteen Facility is to be provided by the employer where at least 100 workers are employed. A group of establishments may operate a common canteen, subject to prior permission by the Chief Facilitator [Section 24]
• Employer has the discretionary power to run any department or any section of the same in more than one shift. The worker will get the work in any shift, as will be decided by the employer. [Section 16(1)]
• Employers are now permitted to keep records in electronic format. They will be required to submit duly signed hard copies of the same to the Facilitators upon demand at the time of inspection. [Section 25(2)]
• MSEA 2017 states that if the employer is found guilty in case of contravention of any provision(s) of the act that has resulted in the bodily injury or death of the worker, the employer will be awarded punishment of imprisonment up to 6 months or fine not less than Rs.2,00,000/- and up to Rs.5,00,000/- or with both. [Section 30]

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

The post What are the changes introduced by the new Shops and Establishments Act in Maharashtra? appeared first on iPleaders.

This article is written by Harsh Kedia, pursuing a Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution from Lawsikho.com. Here he discusses “How will you draft the terms and conditions of a food delivery app?”.

This document is an electronic record in terms of Information Technology Act, 2000 and rules there under as applicable and the amended provisions pertaining to electronic records in various statutes as amended by the Information Technology Act, 2000. This document is published in accordance with the provisions of Rule 3 (1) of the Information Technology (Intermediaries guidelines) Rules, 2011 that require publishing the rules and regulations, privacy policy and Terms of Use for access or usage of www.Hunger.com website and Hunger application for mobile and handheld devices.

Click Above

Terms of use

1. These terms of use clearly specify your rights and duties while using the service. The use of our website www.Hunger.com (the “Website”) and the application ‘Hunger’ which will be used for availing the services provided by us (the “App”). The Website and the App are jointly referred to as the “Platform”. Before using the service you are advised to read all the terms of use carefully. By clicking on the I Agree you authorizes us to register you as a Registered User and you shall comply with all the terms and conditions mentioned herein.
2. This Platform is maintained and handled by Harsh Technologies Private Limited, a company incorporated under the laws of Company Act, 2013. With CIN no. xx, having its registered office at 1, Defence Colony, Lajpat Nagar, New Delhi, India.ok.

Terms of Service

1. Hunger shall not be liable for any defects in food. Hunger in case determines the price and the availability of the product by its own.
2. All the prices and availability are made by the merchants. Any extra charges applicable such as container charges, restaurant charges, etc. are managed and controlled by the merchants. 
3. Hunger shall not deliver items in areas which fall outside the scope of the service. While adding the address, Hunger shall determine such delivery availability.
4. You shall undertake to provide accurate directions and information at the time of the delivery to the delivery executive. If such delivery is not made within the required time due to the wrong information provided to the delivery executive, then in such case Hunger shall not be held responsible and you shall bear the cancellation of late delivery. 
   

Account Registration

1. A user shall be required to furnish the following details before using the Service/s of Hunger. The user registers themselves from the App by providing the following details:

1. 1. Name
   2. Address
   3. Email 
   4. Contact details
   5. Age
      
2. At the time of the registration, the Platform will send an OTP to the mobile no and email address provided by the user. The user shall copy the OTP and put the same in the App. After the verification is complete, the account will be created. 
3. The user can at any time change the password of the App. For modifying the address and contact details, the user shall verify the email address and the phone number. A user can change the details maximum three times. 
4. Hunger holds an exclusive right to terminate the account or block the account of the user anytime. If the user uses the Platform for any other purpose then in such case the Hunger account shall be terminated or blocked without giving any prior notice to the user. 
5. A user can create only one account with the same email address and mobile number. 
6. A user can create an account by using third party verification. You can register yourself through your g-mail account. However, in such a case, the User shall verify the third-party account from the App. After successful verification, the account shall be created with the name as mentioned in such third-party account. The user shall confirm the mobile no in such case before placing an order. 
7. Hunger shall not be responsible for any late delivery/cancellation due to the wrong information provided by the user. If the user does not provide correct information, then in such case Hunger can delete the account of such user.
8. In case any account is blocked or deleted by the Hunger, then the user shall not be eligible to create another account with the same number and email address. 
9. A maximum of two accounts can be created on one device. If any user creates more than three accounts then such App shall be blocked from the device. 

Cancellation and refund

• Cancellation

1. A user shall not be entitled to cancel any order after it has been confirmed by the merchant. Any cancellation made after the confirmation shall be subject to a cancellation fee up to the amount of order placed. Such cancellation fee shall be updated in the App in the outstanding section and the user before placing the next order shall clear such outstanding. 
2. A user shall before the confirmation of the order can contact the customer executive of Hunger to cancel their order. If the user is unable to contact the customer executive at that time then such information shall be made through email.
3. Hunger holds an exclusive right to cancel the order of the user in an unavoidable condition. Intimation of such cancellation shall be made by the customer executive of Hunger through the mobile number provided in the Platform. In such a case, no cancellation fee will be charged and the user can place the order again.
4. If the order placed by the user is not available with the merchant, then in such case Hunger shall inform about the same to the user and the user can either opt for a refund, if the payment is already made or can modify the order. In case the user opts for refund, the amount shall be sent to the source of a transaction within 7-10 working days. 
5. If any cancellation is made by the Hunger after 30 minutes of the confirmation, then in such case the user shall be entitled to a coupon of Rs. 100. Such coupon can be redeemed by the user while placing the next order. 

• Refund

1. A user shall be entitled to the full refund only in the following conditions:
   1. The food received is damaged.
   2. The food received after 60 minutes from the time of confirmation of the order.
   3. The food is totally burnt.
2. No refund shall be generated in any other situation. 
3. The policy of refund shall only be applicable to the order in which payment is made through debit card/net banking/paytm. If the payment is made through cash on delivery then such refund amount shall be transferred to the App of the user under the section gift foods. A user while placing the next order can use the food gift. 
4. In order to initiate a refund, the user shall produce the photographs of the food and send it to the email address of Hunger. After 24 hours, the user shall be refunded with the amount. 
5. Before initiating the refund, Hunger shall confirm with the merchant and the delivery boy about the food. If it is found that the food was not damaged at the time of the delivery by the delivery executive or the food was properly cooked by the merchant, then in such case, no refund shall be initiated by the Hunger. 

Bookings and Financial Terms

1. The Platform allows you to place/cancel/modify your order. A user can place the order by selecting the merchant and the Hunger item offered by them.
2. Hunger in no case holds any right over the food delivered by the merchants. In case the food received is bad/stale, Hunger shall not be liable for the same. 
3. Every order shall be confirmed by the merchants within ten minutes from placing the order. If such confirmation is not made by the merchant then Hunger has the exclusive right to cancel the order. 
4. A user shall be not able to cancel the order once it has been confirmed by the merchant. If such cancellation is made then the user shall be charged with a cancellation fine up to the value of the order placed. Such a cancellation charge will be updated in the App in the outstanding section. 
5. Hunger accepts payments through debit card/net banking/paytm and cash on delivery. However, any order placed above Rs. 500 shall be compulsorily be made through debit card/net banking/paytm. Hunger shall charge such transaction charge application under any law for the time being in force.
6. If any order placed from outside the territory of India, such payments shall be made compulsorily through the payment mode mentioned in the above clause. Hunger only accepts payments in Indian currency. 

Contact Us

You can contact us for any query regarding this Platform. For query related to the App, please contact:

Mr. A, customer grievance officer, Harsh Technologies Private Limited, 1, Defence Colony, Lajpat Nagar, New Delhi, India.

Contact no-99999999
Email-happycustomer@hunger.com

The post How will you Draft the Terms and Conditions of a Food Delivery App? appeared first on iPleaders.

This article is written by  Abhyuday Agarwal, COO,  LawSikho.

The news is out. The Indian economy grew 4.5% between July to September, 2019 (see here). 

In comparison, the Core CPI inflation in September 2019 was 3.99% (see Business Standard story here). By the way, the average inflation in India is usually around 8-10%, if you take everything into consideration like healthcare and rent.

What does this mean? 

If you have money in the bank, it is going to lose at least 4% of its value every year. Probably more.

Get that? Your savings is going down in value. I am sure you do not want that. You want your money to grow in value, not go down.

It can go up only if you invest the money somewhere where you get high returns. Higher the return, and lower the risks, the better. 

Where can you invest? 

Let us examine some of the popular options for investment and their feasibility. 

FD rates have been lowered in November – you will earn anywhere between 4.5% to 6.75% (see here), without adjusting for inflation. If you adjust for inflation, net growth will be around 2-3%. 

Another option is to invest in stocks and mutual funds. By the way, the stock market has been extremely unpredictable in the past 6 months. The top indices are trading at an extremely high valuation. Most fund managers do not expect the market to go up much higher from here sustainably. Here is what Citigroup’s Surendra Goyal thinks. Ramanuj, for example, has stopped his SIPs for a while because he is expecting a market crash.

Given this scenario, if you save money, it will lose 4% or it will grow at 2-5% after adjusting for inflation if you invest it. The growth is minuscule. If you invest in stocks, you could see major erosion of your capital in the short or medium term.

So where do we invest our savings?

Here’s one thing you should know about money. Money grows, but it does not grow exponentially. 

It does not grow like amoeba, which can divide itself. Amoeba, given the right environment, will grow from 1 to 2, 2 to 4, 4 to 8, 8 to 16 and 16 to 32, in five instances of division. Even if each division takes one year, in five years, amoeba will grow 32 times. 

The growth of money, on the other hand, is severely constrained by the base amount you start out with. Assume that your money compounds 10% year on year. If you start out with Rs. 100, at 10% per year compound interest, it will grow into 110, 121, 133, 146 and 161 in 5 years.   

In other words, in 5 years, whatever money you start out with, grows 61%, at 10% compound interest. It hasn’t even doubled! 

However, if you give it 20, or 30 years, number can look a lot better. 

Most investment opportunities may not give a realistic return of more than 10% compound interest in today’s times. Even if you assume the growth rate to be 15%, the principal amount will only double in 5 years.  

Unless you have a legacy of a few crores, this kind of growth in your funds will not increase your fortunes significantly to meet expenses, or to maintain your lifestyle. 

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In fact, if your savings are any lesser than a few crores, there are chances that you will fall very short of meeting the expenses for your changing needs over the years if you try to live off the interest alone and spare the capital. 

You don’t have to be a greedy person for your needs to increase. Very basic needs can completely evaporate your savings. 

For example, purchasing a house, a car, providing funds for a medical emergency in your family, marriage, maintaining your parents, etc. can all wipe out your funds.

For many of you, these expenses may not be in your immediate radar right now, but they come up faster than expected. 

Now, tell me, who is going to be positioned to deal with this situation? Someone who saves whatever money he or she has, or someone who can grow exponentially like amoeba with that money?

Someone who can grow exponentially like an amoeba, right? 

You may ask me, “Isn’t it too much to expect that of a human being?” 

It could be. You might think it is unfair, but that is the way it is.

Of course, everyone does not grow so fast today, not because they cannot, but because they have never even thought about it. Probably, that is the reason why so many people are resigned about their career. 

So many of you work hard, earn a lot, save what they can, and yet they find themselves incapable of meeting the needs of life. 

Why is that? Because the growth rate is too slow in the short and medium term.

We need to, therefore, find out how we can grow like amoeba.

Not in terms of our population, but in our skills, in the quantum of value we add to our clients, in terms of our contribution to the world. 

We can increase our skills exponentially. We can increase our branding exponentially. We can increase our productivity exponentially, in terms of how much we charge for per hour or per day’s work. 

A lawyer who starts by charging INR. 5000 per contract may end up charging INR 1,00,000 a few years down the line if he can build a brand. A lawyer in a law firm might be charging crores for a complicated M&A deal, as you can see from here.

Ram Jethmalani had reportedly charged Rs 1 crore in retainership and Rs 22 lakh for each appearance in the court to defend Arvind Kejriwal when he was sued by Arun Jaitley for defamation. 

It is not uncommon for senior lawyers to charge 1 lakh+ per appearance in Delhi, Mumbai, Bangalore or such markets. When I had to enquire in Kolkata to hire senior lawyers for a matter this year, all top lawyers were charging INR 80,000 upwards for appearing in High Court and even more to appear in district courts! 

What if you could invest your money to take yourself to that position? Can money help you to speed up learning, branding and your standing in the legal fraternity?

Now that’s a real exponential growth of investment if you ever saw one. 

I am not limiting this idea to monetary or material pursuits alone. If you want to save the Earth by arresting climate change, if you are to stand a chance, your forces and efforts will have to grow like amoeba.

After reading this, you might be motivated to work hard so that you can grow like an amoeba.  

Don’t even try. 

Putting in hard work alone is insufficient to grow that fast. Even if you work for one hour per day, you cannot increase your output 32 times by hard work alone, because you would need 32 hours for that, and you have only 24. All of those can’t be productive hours.

But isn’t putting in hard work the best we can do? 

Not at all. 

You need to rely on your greatest gift, i.e. your mind. 

It is what has led to the progress of our civilization. You need to develop your mind. 

However, the mind does not grow in isolation from the real world. If you sit and ‘think’ about your life and your career, your mind does not grow. 

If you don’t believe me, you can try it. Let me know after 48 hours what happens.

The human mind grows when it consumes something, when it performs something, when it learns something, when it is given obstacles to overcome and pushed to its limits. 

Your mind needs to interact with something that inspires it, challenges it and demands excellence from it. Your mind needs a safe environment to debate, experiment and play around with something, to accomplish something. 

For exponential growth, your mind needs a series of tasks and missions to complete. It also needs a capable guide or coaches who can accelerate that growth.

Imagine trying to learn singing or how to play the guitar – a good teacher can massively accelerate how fast you pick up critical skills in the shortest possible time.

If you want to be a great lawyer, or use law in your work, you need to grow your mind in the same way. Because we believe in this, we have been creating a library of courses that have the single minded focus on increasing your earning potential and developing your mind so that you can be prepared to do the legal work in the market that has the highest RoI.

You can take up a Lawsikho Diploma Course and acquire 100 real world legal skills in that area that will earn you at least INR 10,000 per skill at the minimum. If it is a 3 month long executive certificate course, you would be learning at least 24 such new skills. 

You could also buy something like Master Access or Corporate Law Library or Litigation Library and get access to thousands of such skills, which you can learn over the next 5 years!

However, I speak to many people who say that they can learn all these by themselves. Of course, you can. The difference with us is the time you will spend to learn all these.

What a young litigator takes 3 years to learn from a senior lawyer, we teach as much in 6 months to 1 year to our students. 

What a lawyer in a big law firm takes 2 years to learn, we teach that in 1 year to a law student who wants to get a job at a big law firm.

What lawyers trying to build their own practice or a law firm takes 5 years to learn, we teach that in a matter of 1 year in our Legal Practice Development and Management course.

Do you want to reinvent the wheel by yourself, when you could just use the infrastructure we have already created, instead of focusing your energy on growing your practice or standing in the profession exponentially? 

The scientists of today could not develop spaceships on their own, if they could not rely on prior technological inventions of the airplane, the wheel and the steam engine.  

If they worked on reinventing the wheel, they would be stuck in a garage, not in NASA or ISRO.  

In other words, you need to start with what is available in the world and then grow. You do not grow by starting from scratch. 

Take another example, when mountaineers climb high mountains, they take oxygen cylinders with them to breathe when the pressure is low. They don’t practice breathing without oxygen on the ground.

Trying to learn how to be a great lawyer on your own in your law school, or as an independent litigator, is like learning to breathe in an atmosphere without oxygen when you already have oxygen cylinders available on sale.

Do you know what the oxygen cylinder for someone who wants to be a great lawyer is? 

Equivalent of oxygen cylinder for you is a deep understanding of what clients want, and how to provide the services accordingly in an efficient, predictable way. You can fine-tune this skill with practice and coaching. 

Amazon founder and CEO Jeff Bezos said that the biggest challenge is not raising money (Amazon raised equity and debt multiple times from several investors and geographical markets), but deciding how to spend that money. 

If you are facing a financial crisis, saving what you have, or living minimally is a starting point, but it will not make you rich unless you begin to invest.

And the best place for a lawyer to invest in his own skills and growth of his practice, simply because there is such a huge headspace to grow!   

If you cannot ask your parents for money because they are facing a financial crisis and you feel guilty for asking them, ask yourself whether this approach is helpful. What if you focused on learning the skills and increase your income instead? What if you could find some side gigs to earn money even while you are a student? 

If you help them save some money by not taking up a Lawsikho course that could help you get the job you want, get new clients, or build a practice, how much will that saving grow? 

At 15% compound interest, Rs. 30,000 will grow to about INR 60,000 in 5 years. INR 1 lakh will grow to INR 2,01,000 in 5 years.

How much could you earn if you invested that money in your own professional growth? You could earn 1 lakh from a single client for handling sensitive litigation or 15,000 for drafting a single commercial contract.

Can you see yourself earn 10,000 more per month if you learn what we are teaching? What if we taught you how to find clients and how to score side gigs? Would that be a better investment of your money than saving it and putting it into a bank or stock market?

Your career is a better investment any day.

If you take Master Access for INR 120,000, acquire 10 new clients in one year, can you grow your earnings by INR 6 lakhs in the first year? You just have to charge an average of INR 60,000 per client. 

If they refer 10 more clients in the next year (which is highly likely if you serve them well), can you grow your practice by another INR 10 lakhs in the second year?

If you grow at this rate, where could it take your practice, your earnings and your savings in five years? Master Access grants you unlimited access for 5 years to all our courses.  

You don’t need to become Jethmalani or partner in a big law firm to justify this investment. It is not at all hard for a lawyer with good skills to earn 1 lakh per month. I have even written a whole book of 400+ page about it, which you can get here for free if you haven’t read yet.

Does this return on investment make the expenditure worth it for you? Does it enable you to earn the funds to meet your needs and deal with emergencies? 

This logic does not apply to Master Access alone. Even if you take up a Lawsikho Diploma or Executive Certificate course, the chances of recruitment, number of offers you get, your starting salary or your growth path, dramatically increase. 10x is the minimum value we promise.   

We back our claims with a money back guarantee. You can try out any of our premium products or course libraries and get 100% refund between the 30th and 45th day if you 

Your actions can be responsible for turning around the fate of your family and definitely for your finance.

Here are the courses in which enrollment will close tonight:

DIPLOMA

Diploma in Intellectual Property, Media and Entertainment Laws

Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution

Diploma in Cyber Law, Fintech Regulations and Technology Contracts

EXECUTIVE CERTIFICATE COURSES

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

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

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

Certificate Course in Prevention of Sexual Harassment at the Workplace

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

The post What you can learn from amoeba in an economic slowdown appeared first on iPleaders.

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

Sometimes I look back at my brief 11 months career in a law firm and wonder what could have made me stay back and want to work for longer.

The truth is that I did not enjoy my work there. The environment was not designed to make me discover the joy of being a lawyer, but rather focussed on hierarchy, entitlement, obligation, we-pay-you-guys-so-much, you-better-work-late-nights and suck-it-up kinda environment is what at least I got.

The senior associates were too busy and too hooked to the possibility of making a partner and getting their bonus to take any real interest in the juniors. Partners were too big to pay attention to first-year lawyers. 

There was this vague idea that we will learn to do the work by doing lots of due diligence and by observing our seniors. They always had lots of learning sessions from external and internal experts, which always focused on substantive law, but never imparted any skill training. 

Law firm partners usually tend to have very poor understanding of what young lawyers struggle with. Perhaps they have forgotten their own days of struggle, or perhaps the very nature of the struggle has changed by now.

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Usually, law students who intern at any law firm for very long periods tend to have much better shot at succeeding as a lawyer thanks to the relationships they are able to build with seniors due to longer exposure to the firm environment before they actually join as an associate. Familiarity with the work and the way the firm functions help a great deal. 

On the other hand, those who are picked up from campus recruitment drives, are usually quite clueless about how the law firm they are joining functions, and therefore are far less likely to survive the grill and the boiler room like law firm environment. 

All this being the given condition, ceteris paribus, what could make me do it for longer or really succeed at my work?

Passion. Enjoyment. Thrill. 

Unfortunately, I felt none of those for transactional legal work. To be honest, I have endured far more pressure and survived way more overworked schedules working as an entrepreneur. I have gone through way more anxiety, uncertainty and deeply unsettling hostile situations as a startup founder. 

However, what saw me through even the worst troughs are my love for the work that I do, my pride in the impact that I create and the excitement of what we are going to do in the years ahead. 

If you are thoroughly enjoying the journey, it makes all the difference.

Enjoyment like that also requires some level of competence and skills, which comes with time. However, whatever happens, remember to enjoy your work as much as you can. It is the holy grail of all success – those who love the process can never lose in the long term. It is also a habit and mindset to develop.

Watch this video to know what it really means to enjoy your work.

https://www.youtube.com/watch?v=i-BGQh9QTvc

Can you dance like the little one as you do your most challenging, taxing, grueling work?

We are currently enrolling people in the following courses, where you will not only learn to do the work mechanically but learn to love what you do for intellectual satisfaction and the impact you will make.

Here is the list:

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 Why you should learn to enjoy your work rather than just doing it appeared first on iPleaders.

This article has been written by Sonali Khatri, B.B.A.LL.B.(Hons.), Batch of 2018, National Law University, Jodhpur, India.

If you want to know about the position of the Indian law on the crime of miscarriage, then continue reading.

In this article, amongst others, following questions have been answered: when causing miscarriage of a pregnant woman is crime; what punishment is imposed in case the accused is found guilty; how the punishment is decided; what elements a complainant should disclose in her complaint and how can an accused save himself if charged for the commission of this crime.

Loss of pregnancy (a.k.a. miscarriage) can be physically and emotionally draining experience for a woman, especially when it happened because of certain individual/s. In such situations, the affected woman may want to file a case against those individual/s who were responsible for her miscarriage. Undoubtedly, such persons may be punished under the Indian Penal Code. However, it is important that an informed decision is taken while considering the question of initiating criminal proceedings in this situation. In order to help you do that, this article has been written.

First and foremost, you should know that causing miscarriage of a pregnant woman is a crime under the Indian Penal Code (IPC). Sections 312 to 314 of the IPC deal with this crime.  Secondly, these sections use the phrase ‘woman with child’. As ‘woman with child’ simply means a pregnant woman, I have used the phrase ‘pregnant woman’ in this article so that it’s easier to understand. 

With this, let’s now look at each of the fundamental issue likely to arise whenever you would consider instituting criminal proceedings for causing of miscarriage. 

When is ‘causing a miscarriage of a pregnant woman’ crime?

It is a crime when all the following facts occur:-

1. Miscarriage is voluntarily (willingly) caused and not as a result of any accident or mishap.

For instance, administering medicine to a pregnant woman, thereby causing her miscarriage.

1. The miscarriage was not caused in good faith (e. there was no thought of saving the life of the pregnant woman while causing the miscarriage).
2. The pregnant woman did not consent to the miscarriage.

For instance, when a pregnant woman visits a doctor for regular check-up, the doctor inserts a needle inside the abdomen of the lady (as a part of some test) leading to a septic and then a miscarriage. In this case, the woman never visited the doctor for causing of miscarriage but for the test. Yet, miscarriage is what she ultimately suffered. In this case, the woman can consider filing a complaint against the doctor under Section 313 of the IPC.

Issue of consent

There is another possibility. The pregnant woman herself may give consent to the causing of miscarriage. You may think why a pregnant woman would do that. But yes, it’s possible. For example, a pregnant woman, to get rid of the unborn girl child, may give consent to her miscarriage. In that case, the woman would also be punished under Section 312, together with the doctor causing such miscarriage.

At times, a woman may give consent to the miscarriage out of necessity. In such cases, the woman is generally not punished. For instance, if a pregnant woman is attacked/ assaulted by few persons, thereby resulting in such grave injury that the woman, against her desire, gives consent for miscarriage, then the woman is not likely to be punished. These types of cases are covered by Section 313 of the IPC.

To conclude, two types of situation are likely to arise whenever miscarriage has been caused to a pregnant woman: (a) the woman consented to the causing of miscarriage and (b) the woman did not consent to the same. The first situation would be governed by Section 312 of the IPC and the latter by Section 313.  

In addition to the above, there is another possibility. A pregnant woman may herself consents to the causing of miscarriage because the pregnancy is posing severe risk to her mental and physical health. However, such miscarriage would be a crime under the IPC (Section 312) because it is not caused for the purpose of saving the life of the pregnant woman. In fact, for this sort of miscarriage, both the pregnant woman and the doctor can be punished. In this situation, the pregnant woman can consider filing an application under the Medical Termination of Pregnancy Act, 1971 [MTP Act, 1971]. Under this Act, a pregnancy can be terminated when it poses severe risk on the physical and mental health of the pregnant woman.       

What is the punishment for the crime?

If the miscarriage was caused with the consent of the pregnant woman, then

1. Imprisonment which may extend to three years or fine or both OR
2. Imprisonment which may extend to seven years and fine if the woman is in advanced stage of pregnancy (this stage under the IPC is referred to as “woman being quick with child”.

If the miscarriage was caused without the consent of the pregnant woman, then

1. Imprisonment for life OR
2. Imprisonment which may extend to ten years and fine.

Who will be punished for the crime?

If the miscarriage was caused with the consent of the pregnant woman, then

1. The person causing the miscarriage AND
2. The pregnant woman.

If the miscarriage was caused without the consent of the pregnant woman, then

Only the person causing the miscarriage.

How is it decided which one of the above punishments would be applicable in a particular case?

The punishment imposed would depend upon the stage of pregnancy. If the pregnancy was in initial stage, then the lesser punishment is imposed (maximum three years with fine). On the other hand, higher punishment is imposed if the woman was in advanced stage of pregnancy (up to 7 years and fine).  

Note: the abovementioned punishment would be applicable in case of Section 312.

The punishment in case of Section 313 would depend upon the facts and circumstances of each case.

What elements should be disclosed by the Complainant while making a complaint under s/313?

1. The accused was aware of the fact that the woman was pregnant.
2. His/ her actions resulted in the miscarriage of the pregnant woman. The said actions were committed voluntarily by the accused.
3. S/he did not act in the said manner to save the life of the pregnant woman.
4. S/he did not act in good faith.
5. The pregnant woman did not consent to the causing of miscarriage.
6. That the woman miscarried in consequence of it.

How can the accused defend him/her if charged under Section 313?

1. S/he was unaware about the fact that the woman was pregnant.
2. The act which resulted in the commission of the crime was not done voluntarily.
3. The act which resulted in the commission of the crime was done in good faith.
4. The act was done to save the life of woman with child.
5. The pregnant woman also consented to the miscarriage. This argument may not completely absolve the accused from the liability. However, it can result in the imposition of lesser punishment upon him because of the application of Section 312 of IPC.

Note: In addition to the above, the accused can also take one more defense. S/he can contend that the case falls under the MTP Act, 1971. (Only if the complaint was filed under Section 312 of the IPC)

Is causing a miscarriage of a pregnant woman same as abortion or is there any difference between the two terms?

These two terms are different and cannot be used synonymously. The same is clear from Sections 312 to 314 of the IPC.  Nowhere do these sections use the term abortion. Rather they only use the phrase ‘causing of miscarriage’.  

Medically as well there is a difference between the two terms. The term ‘abortion’ is used only when an ovum is expelled within the first three months of pregnancy. On the other hand, ‘miscarriage’ is used when a fetus is expelled from the fourth to the seventh month of gestation, before it is viable.

Is it that in every case of miscarriage a criminal case can be filed?

No, that is not possible. There are two types of miscarriage: one is natural and another is induced by human interference. The courts can intervene only in the second case.

What if the person who intended to cause miscarriage was unsuccessful in his attempt? Can he be punished for attempting to cause miscarriage?

Yes, it is possible. S/He can be punished for his attempt to cause miscarriage under Section 511 of the IPC.

Is it a bailable offence?

Yes, it the complaint has been filed under Section 312 of the IPC. However, if the complaint was filed under Section 313 of the IPC, then the accused would not get the bail (the same being non-bailable offence).

Is it a compoundable offence?

No. Neither the offence under Section 312 nor the one under Section 313 is a compoundable offence.

Which court would try this offence?

In case of Section 312, the offence would be triable by a Magistrate of First Class. On the other hand, the Court of Sessions would try the offence committed under Section 313.

Is it a cognizable offence?

If the miscarriage was caused without the consent of the woman then the same is a cognizable offence. However, if the miscarriage was caused with the consent of the woman, then it is a non-cognizable offence.

Note: A cognizable offence is one where the accused can be arrested by the police without warrant.

What if the pregnant woman agreed to the miscarriage because of the pressure of in-laws? In such a situation, can she still be held responsible for commission of a crime?

In such a situation, the pregnant woman would not be held responsible for commission of a crime. The case would be covered by Section 313 of the IPC. It is very necessary that from the very beginning the pregnant woman takes the stance that the miscarriage was caused against her desire.

• Can the in-laws be punished?

Yes, they can be punished for this act but not necessarily under Sections 312 and 313 of the IPC.

What if the pregnant woman visited the doctor for a regular check-up, but because of the negligence of the doctor she lost her pregnancy?

In such a situation, the doctor can be punished under Section 313 of the IPC. Please note that you disclose and prove all the elements which are there in your complaint filed under Section 313. (The elements which should be there in your complaint have been discussed in the earlier part of this article).

What if the pregnant woman is a minor and she is not in a position to continue with the pregnancy. What can she do so that she is not punished under the IPC?

In that situation, the minor can take use of the Medical Termination of Pregnancy Act, 1971. This Act recognizes the fact that a pregnancy may pose severe physical and mental risk to a woman. Therefore, in those situations, pregnancy may be terminated subject to restrictions provided under this Act.

What if the pregnant woman has changed her mind and she does not want to continue with the pregnancy for reasons best known to her. What can she do in such a situation?

In such a situation, the woman should be careful about the law in IPC. The woman can also be punished for causing of miscarriage under the IPC if she has also consented to the same. The only exception is that the miscarriage was necessary to save the life of the pregnant woman. In case, you can prove the same through weighty evidence, you are good to go.

Otherwise, you can take the help of the MTP Act 1971 which permits termination of pregnancy if it poses severe risk to the physical and mental health of the woman. If you can prove at least this, you would be allowed by the court to terminate the pregnancy.

In my understanding, the second one is a better option. Please note that the court might not permit you to terminate your pregnancy if you are in the advanced stage of pregnancy. 

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 Causing of miscarriage appeared first on iPleaders.

This article is written by Mr Kanishk Ghambir, pursuing a Diploma in M&A, Institutional Finance and Investment Laws (PE and VC transactions) from Lawsikho.com. Here he discusses “Five Different Business Models in Property Tech Space”.

Introduction

In a world where everything is being affected by technology, how can property, the world’s most valuable asset be left behind? The property tech space is now filled with start-ups which provide services in all things related to the property with help of technology including Artificial Intelligence and various algorithms. Even though there are various startups in such fields, some of them have unique business models. Few of such businesses are listed below:

1.WEWORK/ WECOMPANY 

• WeWork or presently called We Company is a company which provides co-working spaces to all kinds of businesses ranging from start-ups to large enterprises. It was founded by Mr. Adam Neumann, Ms. Rebekah Neumann, and Mr. Miguel Mckelvey in New York in 2010. 

• Business Model: WeWork offers co-working spaces to individuals, group of people, companies, etc. It offers majorly four membership options viz. hot desk (pick a location out of options provided by WeWork and use the desks provided at any time), dedicated desks for a client or business only, private offices, and customised buildout. Flexibility is the idea behind We work business model which protects its clients from the problem caused by long term leases. WeWork offers an individual desk for $50 a day plus a membership fee of $45. For a monthly dedicated desk, the cost ranges from $275 to $600 plus membership fee. Further, the price increases depending upon how many desks you hire, the place and the time you require it for. The best part about WeWork is that you can lease a desk for a day, a week, a month or any time period you require it for.  

• About Investors: WeWork, like most of the start-ups today, is backed by big Chinese players including the likes of Soft-Bank and also other entities like Honey Capital, a private equity firm and Greenland Holdings, Real Estate Developer. Apart from these Asian companies, it is also backed by western companies T. Rowe Price, J.P Morgan and Goldman Sachs.1

• Valuation: The valuation of WeWork is around $ 10 billion2 down from $47 billion stated at the begging of 2019.

• Initial Public Offer (“IPO”): WeWork had planned an IPO for September, 2019 with a target of roughly $3.5 Billion through the sale with a valuation of $20 billion but it withdrew the application on September 30, 2019 due to the concerns raised by its investors. 

• Acquisitions & investments: a) Case, a construction technology company, was its first acquisition in the year 2015. b) In 2017, WeWork acquired Flatiron, online classes provider and Meetup, online group meetings for people with similar interests. C) Conductor (content intelligence provider), Designation (a design school) and MissionU, a college alternative in 2018 were acquired. d) In 2019 WeWork acquired Managed by Q, platform through which service providers for office work can be hired as well as Spacious, a company which leases spaces from restaurants which are unused during day time and give it to mobile workers.

• Other Ventures– a). Rise by We- A luxury gym providing basic gym amenities with yoga, boxing and fitness classes. b) WeGrow- A private school for children aged 3 till 4th grade. c). We live- It provides co-living facilities with a model very similar to WeWork with discounted rents.

• Current situation– Even though WeWork has been a roaring success but the personal activities, spending spree undertaken by the company and corporate governance failure all caused by the Founder and Ex-CEO Adam Neumann has been under fire due to which he was forced to give up majority of voting rights as well as step down from the business as the CEO due to pressure by the investors especially Softbank. Further, business’s inability to turn a profit and its falling evaluation have raised doubts over the business which caused the delay of much awaited IPO in September 2019. 

2. RENT PROFILE

• Rent Profile is a start-up founded in 2016, which is the first online network of verified landlords, agents and renters. It was founded by brothers Paul and David Munday after they themselves were scammed of their deposit and first-month rent. It was founded on the basic philosophy that if there is a tenant check before he could rent such property so why shouldn’t there be a landlord background check? It also helps in further security checks using a proprietary algorithm.

• The platform created by Rent Profile has a database of verified landlords as well as tenants, where both the landlord and the tenant could check each other’s background details. In case if one of them (the landlord of the tenant) is not listed the on the platform/site, either they could be sent an invitation to join the site or Rent profile will themselves conduct a search and provide a report for a fee of 9 pounds.

• Rent Profile checks combine the research of public records as well as other databases to understand and gain clarity on the legitimacy of the landlord along with a manual search. 

• For now, Rent Profile has an investment of 2,00,000 pounds, half of which comes in the form of a government grant from innovate the United Kingdom.

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3. REALYSE

• Realyse is like a stock analyst but in the Real Estate business. It provides residential property investors to help and assistance in investing in the Real Estate sector with the help of data analytics, Realyse does so to stay ahead of the market. Realyse was launched in 2016 to provide a fast, effective and efficient way to determine where, when and what to build relying on the integration of various databases which crunch numbers to predict the UK real estate market for next twenty years.
• Thus, it provides investors expert analysis using the data about the future house prices, yields and every other possible detail about the properties in real-time. Realyse was founded on the basic concept of changing the Real Estate game by providing expert and accurate advice to every investor in a quick and effective way to assist them to take well-informed decisions. 

• The database used by Realyse comprises of 20 years of statistics and it provides its users with such access, to understand the rent, debt, demographics as well as market activities for a proper market analysis.

• Realyse offers help to its clients by providing them with a quick overview of sales and rental data, by the property type in different areas and provides them with trends of the last 20 years. Further, it also includes the socio-economics factors by using demographic data for a better and appropriate analysis. It further asses the risks both natural and industrial as well add the facilities nearby the plot like schools, pubs etc. It all is done by applying cutting edge quantitative analytics technology.

• To summarize, Realyse calculates the viability of the investment in the property by the crunching the numbers from both last 20 years and 20 years in future to give a detailed analysis, thus, reducing the amount of due diligence required in such projects by cutting the roughly 40 hours work of a professional by 36 hours. 

• The algorithm is made by professionals having knowledge in the field of economics, IT, and other subjects. Realyse makes and attempts to transfer the same transparency level seen across the insurance and financial services industry in the residential real estate industry.

• In the beginning of 2019, in series ‘A’ investment round Realyse got funding of 3 million pounds from Anthemis Group and XTX Ventures. 

4. NESTED

• Nested is a Real Estate start-up launched in 2016 which provides all the services of a typical Real Estate Agent viz. marketing, sales, and valuation, with a major difference that if it is unable to sell the property within 90 days, it will provide the owners of the property with 95% of the valuation of the house as a cash advance interest-free, so that owners can buy the next house. It is created by Matt Robinson and Phil Cowans.
• Using an algorithm developed by Cowan, the owners are provided with a valuation within seconds and a minimum guarantee price from day one and Nested promises to sell it within 90 days or otherwise provide the money. However, Nested conducts an inspection before confirming the valuation. Then it does all the work of an agent starting from advertising to viewings to sale.

• For the valuation of the property Nested either depends on earlier sales price of the house and added inflations, other factors to it or it analyses the house nearby which is similar to the property and derives the valuation report. 

• For, all the efforts, Nested charges a basic fee of 1.8 per cent along with 20 per cent on any extra money earned over and above the valuation found by the algorithm. 

• It has raised 120 million in form of 20 million in equity from Northzone and Balderton Capital in 2018 and rest in debt from an undisclosed investor.

• Nested is currently available as a web service in London for houses worth less than one million pounds.

5. WAYHOME 

• Wayhome formerly known as Unmortgage is a London based start-up that helps people who cannot afford mortgages to buy houses through the process of gradual ownership over a period of time.

• The business model of the company is, when the buyer has the minimum 5 percentage of deposit (which has to be at least 12,500 pounds) along with the minimum household income requirements, the rest of the house is brought by the company with the help of third-party sources which may be by an independent investor, retirement funds etc. After this, buyer can move into the household and start paying rent as a way to cover the house’s deposit and interest paid by the company. Technically the system is very similar to a bank mortgage but the key differences are a) easier regulations, and b) relaxed rules and background checks, as well as, unlike banks these companies use third-party investors. Further, Wayhome also provides the owners’ facilities to easy the already complex word of ownership of homes and help them with assessment criteria’s and understanding each and everything they are required to know about homeownership.

•  The company does not make anything from the customers but instead, it charges a finder’s fee to the partners who invest in the property. The company connects investment partners to customers and charge money from the investment partners. The relationship essentially boils down to that the partners buy the home with customers and customers slowly buy the home back from them. This makes it very easy for people who wish to buy a home but are bound by high prices and interest rates. The company states mortgage is a better way of buying a house as it reduces the financial burden.

• This start-up has raised about 10 million pounds in the seed round of funding from the companies like Anthemis Exponential Ventures and Augmentum Fintech.

Conclusion

Even though the property tech space has seen some creative developments over the years which make the life of the consumers in this field very easy, it still has a very long way to go. Now, more and more startups are starting to enter this field with realization of huge profits with less risk as compared to other technology-related fields. 

Endnotes

1. https://www.coworkingresources.org/blog/the-wework-business-model (Last accessed on 27.09.2019)
2. https://www.cnbc.com/2019/09/30/wework-says-it-will-file-request-to-withdraw-its-ipo-prospectus-after-roadshow-management-turmoil.html (Last accessed on 10.10.2019)

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

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This article is written by Hema Modi, a second year student of Pravin Gandhi College of Law, Mumbai. It provides an in-depth knowledge and critical evaluation of different Labour Laws. Different laws are enacted  to improve the condition of services for the employees and the way to provide safety and welfare measures and other factors relating to employment.

Matters related to employment in India are primarily governed by the Constitution of India. Some specific laws are framed from time-to-time by the Central and the State Government which are necessary from the point of view of society and its citizens. Since the Constitution of India came into force, the Indian legislation has taken major steps to improve the conditions of service of its workers or labourers working under different sections of the society.

This article will help readers to know what steps should be taken by the employers or companies to ensure the safety and welfare of its employees and other statutes relevant to it.

Labour Laws (Exemption from Furnishing Returns and Maintaining Registers by Certain Establishments) Act, 1988

Aims and Objects

The Act was enacted to provide an exemption of employees with respect to establishments employing a small number of persons from furnishing returns and maintaining registers under certain labour laws. The main objective is to relieve the small companies from following tedious and cumbersome paperwork that is required under various labour laws which reduces the complexity under various laws. 

Some Relevant Definitions

Scheduled Act

Scheduled Acts are those acts which are specified in the First Schedule and has been enforced with the commencement of this Act.

Following are the acts which are included in the Scheduled Acts:

1. The Payment of Wages Act, 1936
2. The Weekly Holidays Act, 1942
3. The Minimum Wages Act, 1948
4. The Factories Act, 1948
5. The Plantations Labour Act, 1951
6. The Working Journalists and other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955
7. The Motor Transport Workers Act, 1961 
8. The Payment of Bonus Act, 1965 
9. The Beedi and Cigar Workers (Conditions of Employment) Act, 1966
10. The Contract Labour (Regulation and Abolition) Act, 1970 
11. The Sales Promotion Employees (Conditions of Service) Act, 1976
12. The Equal Remuneration Act, 1976
13. The Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979 
14. The Dock Workers (Safety, Health and Welfare) Act, 1986
15. The Child Labour (Prohibition and Regulation) Act, 1986
16. The Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996

Small Establishments

Small establishments are those establishments in which ten to forty persons are or were employed on any day of the preceding twelve months.

Very Small Establishments

Very small establishments are those establishments in which not more than nine persons are or were employed on any day of the preceding twelve months.

Exemption from returns and registers required under certain labour laws

With the commencement of this Act, it is not necessary for an employer who has small establishments or very small establishments to submit returns or to maintain registers required to be submitted under the Scheduled Act.

Although, the employer has to provide the following information:

• A core Return in Form A within reasonable time.
• Small establishment shall register in Form B, Form C and Form D.
• A very small establishment shall register in Form E.

Further, provided that, every employer shall continue to:

1. Provide wage slip in the Form as prescribed in Minimum Wages (Central) Rules, 1950 made under the provisions of the Minimum Wages Act, 1948. 
2. File returns relating to the accidents according to the provisions of the Factories Act, 1948 and Plantations Labour Act, 1951.

Savings

By the commencement of this Act, the following will not be affected:

• Any previous provision of the Scheduled Acts which was in effect, its validity, invalidity or consequence.
• Any right, privilege or obligation acquired under any of the Acts mentioned in the First Schedule of this Act.
• Any penalties or punishments inflicted under Scheduled Acts.
• Any investigation or legal proceeding in accordance with the provision of Scheduled Acts.

Penalty

If an employer fails to comply with the provisions of this Act, he/she shall be guilty and will be penalised in the following manner:

• If it is the first case of conviction of an employer, he/she shall liable for a fine up to Rs. 5000.
• If it is a subsequent case of an employer, he/she shall be liable for imprisonment which may vary from one month to six months or fine which may vary from Rs. 10,000 to Rs. 25,000 or both.

Amendment of certain labour laws

The Scheduled Act relating to Labour Law is in effect from the date of commencement of this Act i.e., from the day of enforcement of this Act, other laws are also in effect. 

Power to amend Form

The power to amend Form rests with the Central Government if it thinks it to be fit. The Government shall issue notification through Official Gazette and it should be consequently passed by both the Houses. 

It should be presented before both the Houses as soon as the notification is issued or within seven days of its re-assembly. The Parliament shall pass a resolution for such notification within 15 days of the presentation and if any modifications or amendments are required, it shall have effect from thereon.

Power to remove difficulties

If there comes out any difficulty in the working or giving effect to the provisions of this Act, then the Central Government, by order, shall take necessary steps to remove that difficulty, but the order of the government should be within 2 years of getting assent from the President.

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

The main aim of this Act is to regulate Employment and Conditions of Service of building and other construction workers by ensuring their health, safety and other welfare measures concerned with them.

Applicability of the Act

This Act applies to every establishment which has or had employed ten or more than ten workers working in building or construction areas.

Registration of Establishments

Appointment of Registering Officers

The appropriate Government shall appoint such persons which it thinks to be perfect or fit to be the registering officers. The government by order or notification in the Official Gazette shall prescribe the limits and the powers within which such officers shall act.

Process for Registration

• Every employer shall register its establishment within 60 days of the commencement of this Act. In other cases, it is mandatory for every employer to register their establishment within 60 days of the applicability of this Act. However, if the registering officer is satisfied that due to sufficient reason, there was a delay in registration, then he/she shall register after the expiry period also.
• After the registration, the registering officers shall issue a certificate of registration to the registered establishment.
• In future, if any changes or modifications are made in the ownership or management of the establishment, then the same shall be conveyed to the registering officer within 30 days of its change.

Revocation of Registration

The registration of an establishment can be revoked by the Registering officers in the following cases:

1. If registration is obtained by misrepresentation or false information.
2. If provisions of this Act are not complied with.
3. If the registration has become useless or is not effective.

Registration of Building Workers

Who is a beneficiary?

Section 12 of this Act defines Beneficiary. According to this Section, any person who is more than 18 years but less than 60 years of age and has been engaged in building or other construction works for not less than 90 days of the year is a beneficiary.

Process for Registration

• An application has to be submitted to the officer authorised by the Board in the prescribed format.
• If the officer of the Board is satisfied with the documents provided and the rules provided, then he/she shall register the name of building worker as the beneficiary under this Act.
• If the application for registration is rejected, an opportunity must be given to the applicant to prove his point.
• In the case of dispute, the aggrieved party within 30 days of the judgment go for an appeal to the Secretary of the Board. If the Secretary is satisfied with the reason provided for the delay in the appeal process, then he/she shall entertain it. 
• An identity card will be provided by the Officer to the beneficiary and such beneficiaries shall produce the same card whenever asked by an officer of the Government.
• A register has to be maintained by the employer containing names and the duration of employment of a person as a beneficiary.

Hours of Work, Welfare Measures and Other Conditions of Service of Building Workers

Chapter VI of this Act provides for the hours of work, welfare measures and other conditions of service of building workers.

Fixing of normal working hours

The government shall fix a number of working hours in a day, including one or more specified intervals. It shall also specify a day of rest in a 7 days a week and also provide for the remuneration of that day which shall not be less than the overtime rate.

The above provision applies only if:

1. The person is engaged in an emergency or any other urgent work which could not have been foreseen.
2. The person is engaged in a preparatory or complementary work.
3. The person is engaged in any technical work which has to be completed before the day completes.
4. The person is engaged in a work which has to be carried out only during the natural calamity.

Welfare Measures

1. Every employer shall provide for the clean drinking water at any building or construction ares located at suitable points which is convenient for all persons working there.
2. Every employer shall provide for sufficient latrine and urinal accommodation at any building or construction work in progress at suitable points which is convenient for all persons working there.
3. Every employer shall provide temporary accommodation free of charge within the area or nearby areas for the persons working there.
4. First aid facilities should be provided by every employer
5. If in any establishment there are more than 50 female workers, then the employer shall provide a separate room for the children of less than 6 years of age of such female workers.

Safety and Health Measures

Some of the safety and health measures which every employer shall provide under Section 40 of this Act are:

1. A safe means of access to and the safety of the working place. 
2. Precautions for the demolition of any part or the entire part of the building or any structure associated with that building.
3. Preventing risk from the handling of explosives or any such products.
4. Providing adequate and suitable lighting in every workplace.
5. Precautions in case of fire.
6. Limits of weight to be lifted by the workers.
7. Safe transport of workers from the workplace to their residence and vice versa.
8. Provision and maintenance of medical facilities to the workers.
9. Safety in operating or working with electrical machinery or live wires, etc.
10. Precautions to be taken for providing pollution free air, water, etc.

Relation with the provisions of the Employees’ Compensation Act

Employees Compensation Act was passed in 1923 which was to provide compensation to the workmen and other dependants in case of accidents leading to death or injury to them in the course of employment.

This Act was enacted when there was grave or serious injury caused to the employee either due to negligence of the employer or during the course of employment.

Section 3 of the Employees’ Compensation Act provides for the employers’ liability for compensation. Further, Section of the same Act provides for the calculation of compensation to be paid based on the amount of injury or loss or damage caused. The Act also prescribes for the penalty to the employers if there is a delay or default in payment of compensation. 

However, there are no stringent rules laid down by Building and Other Construction Workers (Regulation of Employment and Conditions of  Service) Act, 1996 to ensure the safety and good conditions of service to the employees. Only guidelines are laid down in this Act which may or may not be followed if the executive is not very strict.

Further, in Section 44 and Section 45 of the same Act, there are laws which have to be followed by employers in order to pay compensation and wages. Evidently, it is mentioned that if an employer fails to pay compensation to the building worker, for which he is liable, in case of death or accident, is entitled to pay the entire amount of compensation according to the provisions of Employees’ Compensation Act, 1923.

This shows that there exists a certain relationship between this Act with the Employees’ Compensation Act.

Penalty

An employer is liable to the employees’ if he/she fails to act within the provision of this Act and is not able to provide safety measures and good conditions of service to its employees.

After due enquiry and legal proceeding, if the authority is not satisfied with the reasons provided, then he/she shall pass such orders:

1. For the first contravention, the employer shall be punished with imprisonment of three months or with fine up to Rs. 2000 or  both. With each subsequent contravention, an additional fine of Rs. 1000 shall be charged.
2. If the offender is repeatedly doing or committing the same offence despite penalty imposed under Sub-Section 1, then he/she shall be imprisoned for 6 months or a fine of Rs 2000 or both shall be imposed.
3. In case, if the offence is committed by a company, then every person who at the time of the commission of offence was in charge of or responsible for the business of the company shall be held liable for punishment until and unless they prove that the offence committed was not in their knowledge or they were not part of that act.

Building and Other Construction Workers Welfare Cess Act, 1996

The main objective of this Act is to provide for the levy and collection of cess on the cost of construction incurred by the employers.

Levy and Collection of Cess

• The levied and collected cess for the purpose of the construction workers shall not exceed 2% and shall not be less than 1%. The cess levied shall be collected by the local authority or any other authorised person in the manner and mode as prescribed.
• The collected cess has to be paid to the Board after deducting the cost of collection which shall not exceed 1% of the amount collected.
• Every employer has to submit the returns to the officer as prescribed.
• If any person fails to furnish the required returns, then the officer or the authority shall give notice to such person to furnish within the specified time.
• In case of delay of payment of the cess, the employers are liable to pay interest of 2% for every month or every part of the month.

Penalty

If any person furnishes a return which may be false or incorrect, then he/she shall be punished with imprisonment of six months or fine of Rs. 1,000 or both.

If any person intentionally or wilfully evades the payment of cess, then he/she shall be punished with imprisonment of six months or fine or both.

In case, if the offence is committed by a company, then every person who at the time of the commission of offence was in charge of or responsible for the business of business shall be held liable for punishment until and unless they prove that the offence committed was not in their knowledge or they were not part of that act.

Power to make rules

The central Government is responsible for carrying out the provisions of this Act. Following rules shall be made by the government:

• The manner and the time in which cess can be collected.
• Fees levied for an appealing case.
• Authority to which appeal may be filed and the time within which the appeal can be filed.
• Authority to impose a penalty.
• Powers exercised by the authority or the Officers.
• Documents required while filing returns, the authority to which such returns shall be furnished and the manner and time of furnishing such returns.

Conclusion

India is a country where the labour force is in large quantity. These labourers are used in different industries and different workplaces. Usually, employers exploit them by making them work overtime. They don’t provide them with sufficient safety measures and health care facilities. Due to this, the productivity of labourers gets reduced and their working potential is also decreased. To increase their productivity and boost their potential, the government in order to promote social welfare tries to enact such laws in favour of workmen, so that they can work efficiently. The only requirement is to execute such beneficiary laws effectively so that labourers can enforce their rights bestowed to them by the government.

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 Shristi Suman, a second-year student of Symbiosis Law School, Hyderabad. In this article, the landmark judgment of the case Keshvananda Bharti has been discussed.

Introduction

Keshvananda Bharati is a landmark case and the decision taken by the Supreme Court outlined the basic structure doctrine of the Constitution. The decision which was given by the bench in Keshavananda Bharati’s case was very unique and thoughtful. The judgment was of 700 pages which included a solution for both Parliament’s right to amend laws and citizen’s right to protect their Fundamental Rights. 

The Bench came up with Doctrine of Basic Structure in order to protect the interests of both citizens of India and the Parliament. The Bench through this solution solved the questions which were left unanswered in Golaknath’s case. This case overruled the decision given in the case of Golaknath v State of Punjab case by putting a restriction on the Parliament’s right to amend the Constitution. The Doctrine of Basic Structure was introduced to ensure that the amendments do not take away the rights of the citizens which were guaranteed to them by the Fundamental Rights.

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Identification of Parties

Petitioner: Kesavananda Bharati & Others

Respondent: State of Kerala 

Bench: S.M. Sikri, K.S. Hegde, A.K. Mukherjea, J.M. Shelat, A.N. Grover, P. Jaganmohan Reddy, H.R. Khanna, A.N. Ray, K.K. Mathew, M.H. Beg, S.N. Dwivedi, & Y.V. Chandrachud.

Summary of Facts

Keshvananda Bharati was the chief of Edneer Mutt which is a religious sect in Kasaragod district of Kerala. Keshvananda Bharti had certain pieces of land in the sect which were owned by him in his name. The state government of Kerala introduced the Land Reforms Amendment Act, 1969. According to the act, the government was entitled to acquire some of the sect’s land of which Keshvananda Bharti was the chief. 

On 21st March 1970, Keshvananda Bharti moved to Supreme Court under Section 32 of the Indian Constitution for enforcement of his rights which guaranteed under Article 25 (Right to practice and propagate religion), Article 26 (Right to manage religious affairs), Article 14 (Right to equality), Article 19(1)(f) (freedom to acquire property), Article 31 (Compulsory Acquisition of Property). When the petition was still under consideration by the court, the Kerala Government another act i.e. Kerala Land Reforms (Amendment) Act, 1971.

After the landmark case of Golaknath v. State of Punjab, the Parliament passed a series of Amendments in order to overrule the judgment of the Golaknath case. In 1971, the 24th Amendment was passed, In 1972, 25th and 29th Amendment were passed subsequently. The following amendments were made after Golaknath’s case which was challenged in the present case are:

24th Amendment

• In the case of Golaknath, it was laid down in the judgment that every Amendment which is made under Article 368, will be taken as an exception under Article 13. Therefore, in order to neutralize this effect, the Parliament through an Amendment in Article 13 of the Constitution annexed clause 4 so that no Amendment can have an effect under Article 13.
• The Parliament in order to remove any kind of ambiguity added clause 3 to Article 368 which reads as follows, “Nothing in article 13 shall apply to any amendment made under this article.”
• In the case of Golaknath, the majority decided that Article 368 earlier contained the provision in which the procedure of Amendment was given and not the power so, in order to include the word power in the Article, Article 368 was amended and the word power was added in the Marginal Note.
• The Parliament tried to draw a distinction between the procedure in an amendment and an ordinary law through an amendment in Article 368(2). Earlier the President could exercise his power to refuse or withhold a bill for the amendment. After the 24th Amendment, the President did not have a choice to refuse or withhold a bill. This was done by the Parliament in order to protect the amendment from the exception that is mentioned under Article 13 of the Indian Constitution.

25th Amendment

• Through this Amendment, the Parliament wanted to make it clear that they are not bound to adequately compensate the landlords in case their property is taken by the State Government and in order to do so the word ‘compensation’ was replaced with the word amount under Article 31(2) of the Constitution.
• The link between Article 19(1)(f) and Article 31(2) was removed.
• Under Article 31(c) of the Constitution, a new provision was added in order to remove all difficulties and to fulfill the objectives laid down under Article 39(b) and 39(c), it was decided that Articles 14, 19 & 31 will not be applied to any law. In order to make Article 39(b) and 39(c) effective, the court was immunized from intervening in any law made by the Parliament.

29th Amendment

The 29th Amendment was passed in the year 1972. It inserted the Kerala Land Reforms Act into the 9th Schedule. It meant that the matters related to the Kerala Land Reforms Act will be outside the scope of the judiciary to try. All the amendments which were made by the Central Government in some or other way protected the amendments made by State Government from being tried in the court of law. Provisions of the Kerala Land Reforms Act along with 24th 25th and 29th Amendments were challenged in the court of law.

Issues before the Court

• Whether the 24th Constitutional (Amendment), Act 1971 is Constitutionally valid or not?
• Whether the 25th Constitutional (Amendment), Act 1972 is Constitutionally valid or not?
• The extent to which the Parliament can exercise its power to amend the Constitution.

Contentions by Parties on issues

Petitioner’s contentions

It was contended by the petitioner that the Parliament cannot amend the Constitution in a way they want to as they have a limited power to do so. The Parliament cannot exercise its power to amend the constitution by changing its basic structure as the same was propounded by Justice Mudhokar in the case of Sajjan Singh v State of Rajasthan. The petitioner pleaded for the protection of his property under Article 19(1)(f) of the Indian Constitution. 

It was argued by him that the 24th and 25th Constitutional Amendments violated the Fundamental Right which was provided under Article 19(1)(f) of the Indian Constitution. Fundamental Rights are rights available to citizens of India to ensure freedom and if any Constitutional amendment takes away such right then the freedom which is ensured under the Constitution to its citizens will be deemed to be taken away from them.

Respondent’s contentions

The respondent was the State. The State contended that Supremacy of Parliament is the basic principle of the Indian Legal System and so the Parliament has the power to amend the Constitution unlimitedly. State also contended that in order to fulfill its socio-economic obligations which have been guaranteed to the citizens of India under the Preamble, it is important that the Parliament exercises its power to amend the constitution without any limitations.

Judgment

It was held by the apex court by a majority of 7:6 that Parliament can amend any provision of the Constitution to fulfill its socio-economic obligations guaranteed to the citizens under the Preamble subject to the condition that such amendment won’t change the basic structure of the Indian Constitution.

The majority decision was delivered by S.M. Sikri CJI, K.S. Hegde, B.K. Mukherjea, J.M. Shelat, A.N. Grover, P. Jagmohan Reddy JJ. & Khanna J. Whereas, the minority opinions were written by A.N. Ray, D.G. Palekar, K.K. Mathew, M.H. Beg, S.N. Dwivedi & Y.V. Chandrachudjj. The minority bench wrote different opinions but was still reluctant to give unfettered authority to the Parliament. The landmark case was decided on 24th April 1973.

The court upheld the 24th Constitutional Amendment entirely but the 1st and 2nd part of the 25th Constitutional Amendment Act was found to be intra vires and ultra vires respectively. It was observed by the court in relation to the powers of the Parliament to amend the Constitution that it was a question that was left unanswered in the case of Golaknath.

The answer to the question was found in the present case and it was deduced by the court that the Parliament has the power to amend the Constitution to the extent that such amendment does not change the basic structure of the Indian Constitution. It was laid down by the court that the Doctrine of Basic Structure is to be followed by the Parliament while amending the provisions of the Constitution.

The Doctrine of Basic Structure

According to the doctrine, the Parliament has an unlimited power to amend the Constitution subject to the sole condition that such amendments must not change the basic structure of the Constitution. The Parliament should not in any manner interfere with the basic features of the Constitution without which our Constitution will be left spiritless and lose its very essence. The basic structure of the Constitution was not mentioned by the bench and was left to the interpretation of the courts. The Courts need to see and interpret if a particular amendment violates the basic structure of our Indian Constitution or not. 

The court found that as contended by the respondents actually there is a difference between ordinary law and an amendment. Keshvananda Bharti’s case to some extent overruled Golaknath’s case. The court, in this case, answered the question which was left unanswered in Golaknath’s case in relation to the power of Parliament to amend provisions of the Constitution. 

The court found that the word ‘amend’ which was included in Article 368 does not refer to amendments that can change the basic structure of the constitution. If Parliament wants to amend a particular provision of the Constitution then such amendment would need to go through the test of basic structure.

It was also decided that since the Parliament has an unlimited power to amend the Constitution subject to the basic structure then Parliament can also amend Fundamental Rights as far as they are not included in the basic structure of the Constitution. 24th Amendment was upheld by the Bench whereas the 25th Amendment’s 2nd part was struck down. The 25th Amendment’s validation was subjected to two conditions:

• The court agreed that the word amount and compensation is not equivalent to each other but still the amount which is provided by the Government to the landlords should not be unreasonable. The amount need not be equal to the market value but should be reasonable and closely related to the present market value.
• The 1st part of the 25th Amendment was upheld but it was subject to the provision that the prohibition of judiciary’s reach will be struck down.

Critical Analysis of the Judgement

The majority of the Bench wanted to preserve the Indian Constitution by protecting the basic features of the Constitution. The judgment was given after analyzing the various aspects and was based on sound reasoning. The Bench feared that if the Parliament would be provided with unlimited power to amend our Indian Constitution then the power will be misused and would be changed by the Government according to its own will and preferences. The basic features and the very spirit of the Constitution can be altered by the Government if they have unlimited powers to make amendments. There was a need for a doctrine to preserve the rights of both Parliament and citizens, therefore, the Bench came up with a midway to protect both of their rights through the doctrine of Basic Structure.

Even before our Indian Constitution came into force, approximately 30 amendments were already made to it. After the commencement of the Indian Constitution in 1951, around 150 amendments have been passed, whereas, in the United States, only 27 amendments have been passed in 230 years. Despite the huge number of amendments, the spirit, and ideas of the framers of the Indian Constitution have remained intact. Indian Constitution did not lose its identity and spirit because of the decision taken by the Bench in this case.

The landmark case of Keshavananda Bharti provided stability to the Constitution. Though the petitioner lost his case partially, yet the judgment that was given by the Bench, in this case, worked out to be a savior of Indian democracy and saved the Constitution from losing its spirit. 

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

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

I thought it is impossible for me to do a 5 mins plank.

Ramit Sethi once announced a challenge on his blog. Either do a 5 minutes plank or do 1000 push-ups.

In my experience, I could not even do a 1-minute plank, so I did not even try. That one looked impossible. I and my 2 cofounders that time attempted to do 1000 push-ups. I did 500 in one hour thirty minutes and gave up.

But I saw that 1000 was not impossible. If I just kept doing one at a time, with some break of 10-15 seconds, I could keep going and finished all 1000.

But what kind of person can do a 5 minute plank without a break?

These days I can do 2 minutes planks. 5 minutes still seem impossible and unreachable. 

But then I just read this, and was blown out of my mind:

https://www.shethepeople.tv/news/four-hour-plank-dana-glowacka-record

What’s the world record for a plank? 4 hours. 

Damn. Who could imagine?

Here is what I took away from that:

1. I do not know enough about how to do a plank. My body is capable of doing much more if I find out how to train it. It is impossible for me because I do not understand how to do it.
2. People around me are a really terrible source of information regarding how to do a plank for longer. They are all as bad as me. If I have to do a plank for 10 mins or 15 mins, I should seek out a better source of information and educate myself about it first rather than just trying it out on the yoga mat. 
3. 5 minutes plank sounded like a huge milestone, a very difficult target. But once I heard that someone did 4 hours, suddenly 5 minutes sounds like very achievable target for me. It is important to be exposed to real champions, and not judge myself by standards of ordinary people. 
4. Impossible is just a horizon, which can expand. A shred of evidence against what is impossible today instantly changes how far into the distance I can see. 
5. If my physical ability can be that elastic, which has far more definite biological restrictions, what I can do with my mind must be way much more powerful. Our body, as well as our brains, are very powerful machines which we have not fully explored, and we do not even understand how powerful these machines are.

I thought I can never run a half marathon.

When I ran 1 km for the first time, I felt like my chest will burst. I was panting. I walked back and thought ‘wow I ran so much, incredible’. I felt very proud. Whenever I went running, I ran for only 1 km and felt great about myself.

Then one day I was going for a run and our football captain Davis was also going out for a run by chance. So I went along with him. After running 1 km I said I am done. Davis looked at me like I am crazy and said what, that’s all? Let’s run till at least Korunamoyee. And then I ran for 5 km for the first time. I could not believe that I could do so. But I did it. Apparently, my body could do it, but my mind was not ready to believe it.

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I still had to run because I didn’t want to admit that Davis could do something that I could not. If he can, I must be able to do it too!

That’s how our brains work. That is why it helps a lot to hang out with people who have already reached where you want to reach. 

Then one day some of the runners from our campus went running for 10 km. I went along. I managed to run that distance. Then one day I even ran a half marathon. Crazy, right?

Turns out I just had to believe I can and try it out. And I did it when I had the company of people who believed they can do it too.

Why did I learn that 1 km running was enough? That’s because my dad always said so – go run 1 km as if it was a big deal to run 1 km. My dad never ran or did any physical work out except some freehand stretching very irregularly, so I thought running 1 km is the limit. It was a big deal to run so much!

It was a self-imposed mental limit. 

You can help others to remove their limits too. I was traveling with my colleague Mayur in November for about a week. We were staying in the same room, and he suggested one night that when we wake up, we must exercise. 

So in the morning, I told him that we will do a quick work out – just 100 burpees.

He agreed. Perhaps he had no idea about how easy or difficult it is to do 100 burpees. I can do 200 easily. 

After doing 10, Mayur said he can’t go on. I would have none of it. I kept pushing him, encouraging him and didn’t allow him to sit down. I would do one and then ask him to do one. 

We managed to do 100 each. For the next few days, he told his friends and family that he did 100 burpees, and everyone found it unbelievable. Even he himself could not believe that he could push himself that much because he wanted to give up so many times in between.

But that work-out set a new standard for Mayur in his life. Such experiences are transformative. When you cross the limit once and go far beyond what you thought you were capable of, your standards are forever changed. 

We take the same approach in our courses to teach practical aspects of the law. Set high standards, push boundaries, and show you what is possible. Give you a community of people who have done it before and working on it again. That changes everything.

Many of you think you can’t build your own practice, find your own clients, or get the jobs of your dreams in quite the same way.

All you need are other people who have done it to show you how to do it, how to train for it, and for you to believe that you must give this a try.

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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 Kartikeya Kaul, a first-year student pursuing B.A.LLB. from Symbiosis Law School, Noida. This is an exhaustive article dealing with the Industrial Law, Industrial Disputes and Industrial Relations: The Industrial Disputes Act, 1947.

Introduction

Industrial disputes Act, 1947 is the Act that regulates the labour laws as it concerns all the workmen or all the people employed on the Indian mainland. It came into force on 1 April 1947.

The capitalists or the employer and the workers always had a difference of opinion and thus, it leads to lots of conflicts among and within both of these groups. So, these issues brought to the attention of the government and so they decided to pass this act. This act was formed with the main objective of bringing peace and harmony in industrial disputes between parties and solving their issues in a peaceful manner. 

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Scope and Object 

This is an Act made for the examination and settlement of industrial disputes, and for different purposes too. This Act centres around any industry carried on by or under the authority of the Central Government, or by a railway organization or concerning any such controlled industry as might be indicated for this benefit by the Central Government. 

Main features of the Act 

This Act furnishes us with specific guidelines and guidelines in regards to the works committee for both the businesses and all the workmen to advance measures for good working relations and comprehension among the workmen and the businesses later on, and to end that, it additionally vows to resolve any material difference in views of opinion in regard to such issues.

Definition of Industrial Dispute 

Industrial dispute implies any distinction of conclusion, contest, injury between the business and the representatives, or between the labourers and bosses, or between the labourers or workers itself which is all concerned with the work or non-business terms or terms of business dependent on the terms of state of work of any person.

Workman

The expression “workman” signifies any individual (counting a student or apprentice) who works in an industry who needs to do any manual, skilled/unskilled, incompetent, specialized, operational, administrative, supervisory and so forth work for contract or reward, regardless of whether the terms of business are communicated or inferred, and for motivations behind any procedure under this Act in connection to an industrial dispute, incorporates any person who has been expelled, released or saved regarding, or as an outcome of the case, or who’s rejection, release or conservation has prompted that dispute, however, does exclude any such individual- 

• who is dependent upon the Air Force Act 1950, or the Army Act 1950, or the Navy Act 1957;
• who is employed in the police administration or as an official or other representative of a jail;
• who is employed primarily in an administrative or managerial limit.

An individual, being underemployment in a supervisory limit draws compensation surpassing Rs. 10000 for every month or activities, either by the idea of the obligations to the workplace or by reason of forces vested in him, works fundamentally of an administrative sort. 

Lay-off 

Layoff or “Cutback” signifies the refusal or lack of power to refuse, disappointment or failure of a business by virtue of lack of coal, power or crude material etc. or the aggregation of stocks or the breakdown of apparatus to offer work to a workman whose name is on the muster rolls of his industrial foundation and who has not been retrenched. 

Closure 

This implies the shutting down of a part of an establishment or an entire place of employment.

Authorities under the Act 

Section 3: Works board of trustees 

If there should be an occurrence in any industrial foundation wherein one hundred or more workers are employed in a day or in the previous year, the concerned government may be a general or an exceptional offer require the business to do in the endorsed way, a works advisory group comprising of delegates of representatives and workers occupied with the foundation so that the quantity of agents of workers on the Committee will not be not exactly the quantity of agents of the business. The delegates of the workers will be picked in the recommended way from among the workers occupied with the foundation and in counsel with their worker’s guild, assuming any, enrolled under the Indian Trade Unions Act. 

It is the obligation of the works advisory group to advance proportions of verifying and saving great and serene relations between the businesses and the workers and the end that, to finalise upon the issues of their normal intrigue or attempt to make any material contrast out of perspectives in such issues. 

Section 4: Conciliation Officer

The fitting government may, by seeing in the authority, name such people as it believes fit to be conciliation officials, delegated of the obligation of intervening and advancing the settlement of industrial audits. 

An appeasement official might be designated for a predetermined zone or for explicit industries in a predefined region or for at least one explicit industries and either for all time or for a constrained period. 

Section 5: Boards of Conciliation

1. The reasonable Government may as event emerges by notice in the Official Gazette speak to a Board of Conciliation for advancing the settlement of an industrial contest. 
2. A Board will incorporate an administrator and 2 or 4 unique individuals, as the Government thinks fit. 
3. The administrator will be an independent individual and along these lines, different individuals will be people delegated in equivalent numbers to speak to the party to the case and any individual selected to speak to a gathering will be designated on the proposal of that party: 

• Given that, if any gathering neglects to make a suggestion as previously mentioned inside the endorsed time, the fitting Government will select such people if it thinks they’re fit to speak to that party. 

1. A Board, having the recommended majority, may act despite the nonattendance of the administrator or any of its individuals or any opening in its number: 

• Given that if the appropriate Government tells the Board that the administrations of the executive or of some other part have been stopped to be accessible, the Board will not Act till a substitute director or part, by and large, has been designated. 

Section 6: Courts of Inquiry 

• The proper Government may as an event emerges,  by notice in the official journal comprise a court of value for enquiring into some other issue seeming, by all accounts, to be associated with or applicable to an industrial contest.                                                           
• A court may comprise of one free individual or number of such autonomous people as suitable Government may think fit and where a court comprises of at least two individuals, one of them will be named as the executive chairman. 
• A court, having the endorsed majority, may dispute the nonappearance of the executive chairman or any of its individuals or any kind of vacancy in its number. 

Section 7: Labor Court 

• The proper Government may, by warning in the official journal, add to at least one industrial councils for the settling of industrial disputes and identifying with any issue, regardless of whether indicated in the subsequent calendar or the 3rd schedule. 
• A court should comprise of just a single individual designated by the appropriate government. 
• An individual will not be equipped for arrangement as the directing official of a council except if he is, or has been a judge of the high court or has been a vice president labour commissioner (central) or joint chief of the state work office, having a degree in law. 

Anand Bazar Patrika v Their Employees 

This case was between the Anand Bazar Patrika Pvt. Ltd, the appellant and between the workers, the respondent. This issue was about a person, Gupta, who’s retirement was against the service conditions of the company. The court also held the decision against the appellant that Gupta was a workman on the day of his retirement and thus, the award was given against the appellant. 

Awaz Prakashan Private Ltd. v Pramod Kumar Pujari 

In the case Awaz Prakashan Private ltd. vs Pramod Kumar Pujari, the appellant was running a printing press and was publishing newspapers by the name of ‘Awaz’. So, as per the words of the appellant, he said that he closed the publication and stopped the printing of the newspaper and thus he retrenched the workman from services as of 1st July 1989. The responded contended that his retrenchment was not complying with the provisions in the Industrial disputes Act, 1947. 

Section 7-A: Tribunals 

The reasonable government may, by warning in the official newspaper, establish at least one industrial courts for the mediation of industrial disputes identifying with any issue, regardless of whether indicated in the subsequent calendar or the third schedule. A council will comprise of one individual just to be selected by the corporate Government. 

An individual will not be equipped for arrangement as the managing official of a Tribunal except if: 

• He/she has been a judge of high court or has been one. 
• a vice president work official (focal) or joint magistrate of the state work office, having a degree in law. 

Minerva Mills Ltd. Bangalore v Their Workmen 

Two disputes of the Minerva Mills Ltd, Bangalore between the management and the workers and two disputes of Mysore spinning and manufacturing co. limited, also between the management and the workers were referred to the said industrial tribunal 10 (1) c of the Act for adjudication, several other disputes were also referred to the tribunal. Till 15th June 1952, it was seen that only 5 out of 22 disputes were referred to it when the period of one year expired. In the four disputes which are concerned, the tribunal had only framed the issues and not Actually proceeded to record any evidence.

Lipton Ltd. case 

Lipton limited case. The appellant company was incorporated in the United Kingdom, with most of its stores from London, of groceries and tea, which included 10% of its business there. Its operations in India were carried out by a branch with its head office in Calcutta, and the business there consisted mainly of the sale of ‘packaged tea’  throughout all of India. The Delhi office of its Indian branch controlled the workmen of Punjab, Delhi, Rajasthan and Uttar Pradesh but had no connection with the other side of the business.

Jurisdiction 

The appropriate government may appoint to assessors to the case and may give its decision in the court as they may seem fit. 

Delay in filing appeal 

If there are delays in filing appeal the case of a person may become weaker. 

Appeal

Appeal can be made to Labour court, district court, tribunal or national tribunal.

Section 7-B: National councils 

The government at the centre may, by warning in the official gazette comprise at least one national industrial Tribunal for the settling of industrial disputes which, in the assessment of the government at the centre, including inquiries of national significance or are of such a nature, that industrial foundations arranged in more than one state are probably going to be keen on, or influenced by, such disputes. 

• A national council will comprise of just a single individual that will be named by the government at the centre. 
• An individual will not be equipped for arrangement as the directing official of a national council, except if he is or has been a judge of the High Court. 
• The government at the centre may, if it thinks so fit select two people as assessors to encourage national council in the procedure before it. 

Section 7-C: Disqualifications for the managing workplaces of work courts, tribunals and national tribunals.

No individual will be designated to, or proceed in the workplace of the managing official of a work Court, council or national court if – 

• He isn’t an autonomous individual. 
• He hasn’t achieved the age of 65 years. 

Reference of Industrial Dispute

Where the proper government is of the conclusion that any industrial question exists or is caught, it might whenever by request recorded as a hard copy- 

• Allude the contest to a board for advancing settlement thereof. 
• Allude any issue having all the earmarks of being associated with or pertinent to the question to a court for enquiry.
• Allude the contest or any matter seeming, by all accounts, to be associated with, or pertinent to the question, in the event that it identifies with any issue indicated in the subsequent schedule, to a work Court for mediation.
• Allude to the question or any issue seeming, by all accounts, to be associated with, or pertinent to, the contest whether it identifies with any issue determined in the subsequent timetable or the third calendar, to a council for arbitration. 

Constitutional legitimacy of Section 10 

Where any industrial question in connection to which the government at the centre isn’t fit, the government alludes to national court at that point despite anything contained in this Act in reference to Sections 15, 17, 19, 33A, 33B, 36A to the reasonable government in connection with such contest will be understood as a source of perspective to the central government yet, spare as previously mentioned and as generally explicitly given in this Act, any reference in some other arrangement of this Act to the suitable government in connection to that case will mean a reference to the state government. 

Section 10-A: Voluntary references to disputes to discretion 

There any industrial case exists or is captured and the business and the workman consent to allude the question to mediation, they may whenever before the contest. It has been alluded to under Section 10 to a work Court or council or national court by a composed understanding, allude to the question to discretion and the differential to be such an individual or people (counting the managing officials of a work Court or council or national council) as a judge as might be determined in the assertion understanding.

Section 11: Procedure, Powers and Duties of Authorities  

Notice to enter premises 

An appeasement official or an individual from the board, may with the end goal of investigation into any current or captured industrial dispute, in the wake of giving sensible notice, enter the premises involved by any foundation to which the question relates. 

Production of documents before Tribunals 

An appeasement official may implement the participation of any individual with the end goal of assessment of such individual or call for and review any archive which he has ground for considering to be important to the industrial question.

Cost

The council, national council or work courts, all things considered, will have full capacity to decide by who and whom and to what degree and subject to what conditions, assuming any, such expenses must be paid, and to give every single essential bearing for the reasons previously mentioned and such expenses may, on application made to the fitting government by the individual entitled, can be recovered by that legislature in a similar way as an arrear of land income. 

Granting of adjournments

A bench of judges in the national tribunal, courts, labour courts, tribunals will grant the adjournment notice to the respective parties.

Powers of the Tribunal

Each board, court, work court, council and the national council have the power will have similar forces vested in a common court under common court of procedure, 1908, when attempting to document a suit, in regard of the accompanying issues specifically 

• Authorizing the participation of an individual and inspecting him on vow 
• Convincing the creation of reports and material objects 
• Giving commissions for the assessment of witness 

In regard of such different issues as might be endorsed; and each request or examination by a board, court, work court, council or national court, will be esteemed to be a legal proceeding inside the Sections 193 and 228 of the Indian penal code (45 and 1860).

Fixation of wage structure

He who draws compensation and works of supervisory limit, he draws compensation surpassing 1600 for each month or Activities, either commonly of obligations connected to him by the workplace or by the power vested in him, works basically of an administrative sort. 

Retirement age on account of industrial workers

Retirement of the workman on arriving at the time of superannuation if the contract between the business and the worker comprises of a stipulation for that sake. 

Incentive Payment Scheme

Incentives are given to those who are wrongfully terminated of the services.

Jurisdiction to decide the dispute in respect of closure of factory

Courts can also resolve disputes in the cases of closure of factory based on all of the right facts as regardless of the closure of the factory as an individual or a party’s right must be served. 

Power of the Tribunal to interfere with the Action taken by the management 

Tribunal can also interfere with anything wrong done by the management only under court supervision. 

Award of Industrial Tribunal 

The award of the tribunal should only be in writing and only be signed by the presiding officer. 

Power of Labour Court 

The labour court may by the notification given in the official gazette, shall decide industrial disputes by adjudication according to the second schedule. 

Finding of fact by Labour Court

A labour court can also find the facts by formal investigation. 

Power of High Court to issue a writ against decisions of the Tribunal

High court can also issue a writ against decisions of the tribunal if an official appeal is made. 

Special leave under Article 136 of the Constitution against the decision of the Industrial Tribunal

Special leave petition means any person who wants to be heard in the case of any tribunal/national tribunal verdict. 

Section 11-A: Powers of Labor Courts, Tribunals and National Tribunals to give appointment alleviation if there should arise an occurrence of release or expulsion of workers 

Intensity of work courts, councils and national courts to give fitting help on account of release of workers. Where an industrial case identifying with release and expulsion of a workman in labor court, council, court or national council and on account of settling procedures, the court, the court or the national council, by and large, in the event that they imagine that the release or rejection of the workman was treacherous, it might, by its reward, put aside request of remuneration or do a legitimate restoration of the workman on such terms and conditions. 

Section 12: Duties of Conciliation Officers 

Conciliation Proceedings and settlement 

The conciliation official will to achieve a settlement in the case, immediately, research the question and all issues influencing the benefits and the correct settlement thereof and may do every single such thing on the off chance that he considers as qualified for the reason to carry the gatherings to a reasonable and agreeable settlement. 

Power of Government to make a reference 

In the event that, on the thought of the report is alluded to, the suitable government is fulfilled that there is a case for reference to a board, so it might make the reference. At the point when the concerned government doesn’t make any reference, it will record it and convey it to the concerned gatherings in this way. 

Submission of report by Conciliation Officer 

The report ought to be submitted within 14 days inside the beginning of the assuagement procedures or inside a shorter period as may be fixed by the proper government. 

Section 13: Duties of Boards 

Where a case has been alluded to a Board under this Act, it will be the obligation of the board to attempt to achieve a settlement and for this the board will, and doing this immediately, examining every one of the issues of the question influencing the benefits and the settlement thereof and may do every such thing fit to instigate the gatherings to go to a reasonable and legitimate settlement of the dispute.

Section 14: Duties of Courts 

A court will ask into the issues alluded to it and report it subsequently in the administration usually inside a six months time span from the initiation of its request. 

Section 15: Duties of Labor Courts, Tribunals and National Tribunals 

At the point when an industrial contest has alluded to a working court, council or national court for mediation, it should hold its procedures quickly and will, inside the predetermined period broaden and should present the honour to the fitting government.

Parties to make available all relevant papers for the proper decision of a dispute

All the parties have to provide the relevant papers for proof, as then only it will give proper decision of the dispute. 

Jurisdiction and Powers of Tribunal and Court

At the point when an industrial contest has alluded to a working court, council or national court for mediation, it should hold its procedures quickly and will, inside the predetermined period broaden and should present the honour to the fitting government.

Modification of pleadings

Pleadings can be modified as and when required. 

Discharge or Dismissal of a workman

When the issue has been reported to the court, labour court, tribunal, national tribunal regarding the unfair discharge or dismissal of the workman, the court or the tribunal can award the reinstatement of the workman into the establishment.   

Limitation on power to make award

The powers of the courts can give an award to the parties who deserve the award if anything wrong has been done with them.

Power of High Court to interfere with the award

If the party tries to file a complaint in the high court, the award can be given to the party whoever the judge feels worthy and they will be obliged to perform it. 

Power of Tribunal to grant interim relief

When an issue or dispute regarding the industrial dispute has been referred to the labour court, tribunal, national tribunal for referring, and after proper referring done by the respective courthouse, it could provide an award to the party if it’s satisfied that discharge or dismissal was not justified. Also, if it thinks fit, it may also provide relief to the workman and also the award of lesser punishment.

Section 16: Form of report and award

The report of a board or court will be recorded as a hard copy and will be marked by every one of the individuals from the board or court, all things considered: gave that nothing in this Section will be regarded to stop any individual from the board or court from recording any moment of the contradiction from a report or from any suggestions made in that. 

Section 17: Publication of report and award

Each report of a board or court together with any moment of difference recorded therewith, every mediation grant and each grant of a work court, council or national council will be distributed in a manner by which the suitable government thinks fit, inside a time of 30 days from the day of its receipt by the proper government. 

Section 17-A: Commencement of award – Enforceability of award

An honour (counting the assertion grant) will get enforceable on the expiry of the 30 days from the date of its distribution under Section 17 given that: 

•  if the reasonable Government is conclusion, regardless of any place the honour has been given by a Labor Court or council with respect to an industrial question to which it is a party; or 
•  if the Central Government is of opinion, regardless of any place the reward has been given by a National court, that it’ll be inexpedient on open grounds contacting national economy or social equity to offer impact without limit or any piece of the reward, the appropriate Government, or in light of the fact that the case could likewise be, the Central Government could, by notice in the Official Gazette, pronounce that the reward will not be enforceable upon the termination of the previously mentioned time of thirty days. 

Production of award

Where any announcement has been made concerning a reward, the appropriate Government or the Central Government could, inside ninety days from the date of production of the honor in Section 17, make a request dismissing or altering the honor, and will, on the primary possible possibility, lay the honor related to a copy of the request previously 

the get together of the State, if the request has been made by a state government, or before Parliament, if the request has been made by the Central Government. 

Section 17-B: Payment of full wages of workman pending procedures in higher Courts 

Where regardless, a working court, council or a national council by its reward, coordinates the  restoration of any workman and the business inclines toward any procedures against such grant in a high court or a preeminent court, full wages last drawn by him, comprehensive of any support stipend acceptable to him under any standard if the workman had not been utilized in any foundation during such period and an oath by such workman had been recorded with that impact in such Court.

Provided that where it is demonstrated to the satisfaction of the High Court or the Supreme Court that such workman had been utilized and had been getting satisfactory compensation during any such period or part thereof, the Court will arrange that no wages will be payable under this Section for such period or part, as the case may be.

Section 18: Persons on whom settlements and grants are authoritative 

People bound by settlement 

A settlement landed at by understanding between the business and the labourer generally than in course assuagement continuing will tie on the parties to the understanding. 

Reasonableness of settlement 

A discretion award has become enforceable will tie on the parties who alluded the question to assertion. 

Intensity of the Tribunal to include other vital and legitimate parties 

All the pertinent parties to the industrial question and the various parties are likewise added who are significant to the case and on the off chance that they don’t have an appropriate case, they won’t be recorded. 

Obligation of beneficiaries and successors and so forth 

At the point when the party in the above case is a business, his beneficiaries, successors or allocates in regard of the establishment to which the question relates. 

Restricting the nature of award 

The intervention award will be enforceable and will tie on those parties to the understanding whose case was alluded to assertion. 

Persons employed on the date of dispute and persons who subsequently become employed

All people making out of labourers who were utilized in the establishment at the very latest the day of the case are altogether alluded to. 

Section 19: Period of Activity of settlements and awards 

Time of Activity of awards 

A settlement will come into activity on such date as is settled upon by the parties to the question, and if no date is settled upon, on the date on which the update of the settlement is marked by the parties to the contest. 

Audit of Activity of award 

An award will, subject to the arrangements of this Section, stay inactivity for a time of one year from the date on which the award gets enforceable, given the reasonable government may diminish the said period. 

Res Judicata and Section 19(6) 

An award will be inactivity for 1 year from the date on which the award gets enforceable, subject to the arrangements of this Section. Be that as it may, despite the activity time frame, the award will be proceeding to tie for more than 2 months from the date the individual party has pulled out of their goal to end the award.

End of the award 

No notice given by the above Section will have an impact except if it is given by the party speaking to most of people bound by the settlement or award or all things considered.

Section 20: Commencement and finish of procedures 

Conciliation Proceedings 

An appeasement continuing must be started on the date of which a notice of strike or lockout has been given to the placation official or on the date of the request alluding the question to the board, all things considered.

Conclusion of Conciliation procedures 

A Conciliation Proceeding is said to be finished up when: 

• When is settlement is landed at, when a reminder of the settlement is marked by parties to the question. 
• At the point when no settlement is landed at, when the report of the placation official is gotten to the suitable government or when the report of the board is distributed under Section 17. 
• At the point when a reference is made in the court, work court, tribunal or national tribunal under Section 10 during the pendency of the appeasement gatherings. 

Discretion and settling procedures 

Procedures before a referee under Section 10A or under the watchful eye of a working court, tribunal or national tribunal will be regarded to have started on the date of the reference of the case for discretion or mediation. 

Section 21: Certain issues to be kept private 

They will not be remembered for any report or award under this demonstration any data got by a conciliation official over the span of request as to a worker’s organization or as an individual business which isn’t accessible generally than through the proof given under the steady gaze of such official, board, court. 

Strikes and Lock-outs 

Section 22: Prohibition of Strikes and lock-outs 

Denial of Strike

No utilized individual can go to a strike in open utility in rupture of agreement without giving the business the earlier notice of the strike. 

Notice of Strike 

• Notice of strike must be allowed inside about a month and a half, after gave, inside a half year before striking. 
• Which means of the expressions “inside about a month and a half before striking” and “inside fourteen days of giving such notice”
• An individual can’t go on a strike inside a half year of the past strike or inside 14 days of going on such a strike.

During the pendency of conciliation procedures

Before a conciliation official and seven days after the finishing of such proceeding.

Denial of lock-out 

Without giving them notice of the lockout or as hereinafter gave, inside about a month and a half of lockout or inside 14 days of giving such notice or any expiry of the lockout in any such notice previously mentioned or during the pendency of any placation procedures previously and appeasement official and seven days after the appeasement of such procedures.

Section 23: General preclusion of strikes and lock-outs 

In breach of contract 

No worker will go into a strike in rupture of agreement and no labourer will proclaim a lockout- 

• During the pendency of mollification procedures before aboard and 7 days after the finish of such procedures. 
• During the pendency of procedures before a tribunal, national tribunal or a working court and two months after the finish of such procedures. 
• During the pendency of assertion procedures before a mediator and two months after the finishing of such procedures. 

Comparison between Section 22 and 23 

Matters secured by the Settlement 

Section 22 discussions about how the workers can’t go to a strike dependent on the earlier notification given to the business inside the organization, etc while Section 23 discussions about the general forbiddance in which we cannot go for a strike on the off chance that we have an earlier case pending. 

Section 24: Illegal strikes and lock-outs 

Discipline for unlawful strikes 

Any worker who does an illicit hit it culpable with detainment, up to a term for one month or a fine of which might be up to Rs. 50 or both. 

Section 25: Prohibition of money related guide to unlawful strikes and lock-outs 

No individual will purposely exhaust or apply any cash in the immediate facilitation of help of any illicit strike or a lockout. 

Lay-off and Retrenchment 

Section 25-A: Application of Sections 25-C to 25-E 

• To industrial establishments in which under fifty labourers on a normal for every working day have been utilized in the previous schedule month. 
• To industrial establishments which are of a regular character wherein work is performed just discontinuously. 

Section 25-A(2) 

On the off chance that the inquiry emerges if the industrial establishment is of regular character or in which work is performed just irregularly, the choice of the fitting government is then last. 

Section 25-B: Definition of continuous service

(1) a working man will be aforementioned to be in persistent help for a period in case he’s, for that period, in continuous assistance, just as administration which might be hindered on record of ailment or approved leave or a mishap or a strike that isn’t unlawful, or a lock-out or a stop of work that isn’t a direct result of any deficiency with respect to the worker; 

(2) any place a working man isn’t in nonstop assistance inside the that methods for statement (1) for a time of 1 year or half a year, he will be esteemed to be inconsistent help under a business – 

(a) for a time of 1 year, if the working man, during a time of twelve schedule months going before the date regarding which estimation is to be made, has, in reality, worked under the business for at the very least – 

• one hundred and ninety days on account of a working man utilized subterranean in a mine; and 
• two hundred and forty days, in some other case; 

(b) for a time period of half a year, if the working man, during a time of six schedule months going before the date regarding which count is to be made, has all things considered work under the business for at least – 

• ninety-five days, on account of a working man, utilized subterranean in a mine 
• 120 days, in the other case. 

Clarification-  For the reasons for condition (2), the number of days on which a worker has really worked under a business will remember the days for which: 

(i) he has been laid-off under an understanding or as reasonable by standing requests made under the Industrial Employment (Standing Orders) Act, 1946 (20 of 1946), or under this Act or under the other law relevant to the business establishment; 

(ii) he has been inert with full wages, earned in the earlier years; 

(iii) he has been missing a result of brief impedance caused incidentally emerging out of and inside the course of his work; and 

(iv) on account of a female, she has been on maternity leave; in this manner, notwithstanding, that the general time of such maternity leave doesn’t surpass twelve weeks. 

Section 25-C: Right of workers laid-off for pay 

Lay-off remuneration 

Right of workers laid-off for pay.- Whenever a working man (other than a badli worker or easygoing worker) whose name is borne on the summon moves of an industrial establishment and who has finished at least one year of persistent assistance under a business is laid-off, regardless of whether endlessly or irregularly, he will be paid by the business for all days all through that he’s along these lines laid-off, besides such week by week occasions as could intercede, remuneration that will be up to 50% of brimming with the basic wages and dearness stipend that may have been because of him had he not been subsequently laid-off: giving if all through any time of a year, a representative is in this manner laid-off for more than forty-five days, no such pay will be expected in regard of any time of the lay-off once the end of the initial forty-five days, if there’s a consent with that impact between the worker and in this manner the business: Provided further that it will be legal for the business regardless falling among the previous precondition to conserve the working man as per the arrangements contained in Section 25F whenever once the expiry of the initial forty-five days of the lay-off and when he does as such, any remuneration paid to the workman for having been laid-off during the first year could likewise be set out against the payment due for conservation. 

Badli Workman 

“Badli workman” signifies a workman who is utilized in an industrial establishment in the spot of another workman whose name is borne on the muster rolls of the establishment, yet will stop to be viewed in that capacity for the motivations behind this Section, on the off chance that he has finished one year of persistent assistance in the establishment. 

Section 25-D: Duty of a business to keep up muster rolls of workmen 

Obligation of the business is to make muster rolls of their workmen. Despite that workmen in any industrial establishment have been laid off, it will be the obligation of the business to keep up the reasons for the part a muster roll and to accommodate the creation of passages in that by workmen who may introduce themselves for work at the establishment at the delegated time during typical working hours. 

Section 25-E: Workmen not qualified for pay in specific cases 

Any elective business 

On the off chance that he will not acknowledge any elective work in a similar establishment from which he has been laid-off, the creation of passages in that by workmen who may introduce themselves for work at the establishment at the designated time during typical working hours. 

Industrial establishment 

In the event that he doesn’t speak to himself at the establishment at the delegated time during typical working hours, at any rate, one time a day. 

Section 25-F: Conditions point of reference to conservation of workmen 

No workman utilized in any industry who has been in persistent assistance for at least one year under a business will be saved by that business until-

Degree of Tribunal’s Jurisdiction 

The workman has been given one month’s see in writing demonstrating the purposes behind conservation and the time of notice has terminated, or the workman has been paid in lieu of such notice, compensation for the time of the notice. 

Right of boss to redesign his business 

In India, courts have given the privilege to individuals to rearrange their business, given that they don’t do this with the ulterior goal of deceiving representatives. 

Terms within probation 

In the occasion, the business isn’t happy with the presentation of the representative during probation, the business is allowed to fire the administrations of the worker before the probation time frame subject to the notice time frame, assuming any, recommended in the representative’s letter of organization approach. 

Work for 240 days in a schedule year 

Each worker who has worked for 240 days in a schedule year in a production line, is permitted to leave for a couple of days with the wages. 

Conservation Compensation and Gratuity 

According to tip Act worker who has finished ceaseless, 5 years administration is qualified to get tip @ 15 days compensation for per finished year of administration. In the event of death of a representative while in administration, there is no arrangement to pay Retrenchment Compensation to the lawful beneficiaries of them perished. 

Restoration of a saved workman 

The courts don’t structure reestablishment in instances of illicit end or conservation. Sometimes, courts request payment in lieu of the conservation, though now and again conservation is requested with a full or a portion of back wages or network administration. 

Clubbing of administrations 

The administrations are generally clubbed together for the reason. 

Status of Service 

Status in the administration will be dictated by the date of request of arrangement to the administration. 

Restoration with full back wages of a conserved workman 

Ever industrial workman argues under the steady gaze of the official courtroom that after the end of his administration, he couldn’t locate some other productive business. On this declaration itself, the weight of evidence shifts upon the business/the board to demonstrate that the workman has been in beneficial work during the period he had been rendered jobless. Without evidence of beneficial work of the workman, the workman gets qualified for back wages if the end has been seen as awful in law.

In any case, in the very idea of things there can’t be a restraint equation for awarding alleviation of back wages. It would rely upon the carefulness of the Tribunal. Full back wages would be typical standard and the party questioning it must set up the conditions requiring takeoff. 

In Hissar Central Co-usable Bank Ltd. versus Kali Ram, 2004(1) LLJ 232 SC, the Supreme Court clarified the foundation for deciding award of back wages if there should be an occurrence of restoration. It has been kept that instalment of down wages would rely upon, other than productive business or non-work of worker, factors, for example, nature of charge, degree of association and making misfortune manager. 

State claims 

The state’s claims can play a major role in the decision of retrenchment of the workmen. 

Reinstatement with notional incrementations

If the national tribunal, tribunal, national courts find that the dismissal or discharge of the workman was unjust, then the courts can order the reinstatement of the workman and that too with nominal increments if it feels like.

Fresh Plea 

A fresh plea may also be filed in the court for the purpose of retrenchment.

Distinction between Section 25-F and 25-FFF 

Section 25 F discusses Conditions to point of reference to conservation of workmen. No workman utilized in any industry who has been in nonstop help for at least one year under a business will be saved by that business and Section 25 FFF discusses remuneration to workmen if there should be an occurrence of shutting down of undertakings. 

Section 25-FF: Compensation to workmen if there should be an occurrence of move of undertakings 

Where the proprietorship or the executives of an undertaking is moved, regardless of whether by understanding or by Activity of law, from the business in connection to that undertaking to another business, each workman who has been in constant assistance for at least one year in that undertaking preceding such move will be qualified for notice and pay as per the arrangements of Section 25F, as though the workman had been saved: Provided that nothing in this Section will apply to a workman regardless where there has been a difference in managers by reason of the exchange, if-

• the administration of the workman has not been hindered by such move; 
• the terms and states of administration material to the workman after such move are not at all less ideal to the workman than those relevant to him preceding the exchange; and 
• the new manager is, under the details of such a move or something else, lawfully subject to pay to the workman, in case of his conservation, remuneration on the premise that his administration has been nonstop and has not been hindered by the exchange. 

Section 25-FFF: Compensation to workmen if there should arise an occurrence of shutting down of undertakings 

Pay to workmen just if there should arise an occurrence of shutting down of undertakings.- 

Where an undertaking is shut down in any capacity whatsoever, each workman who has been in nonstop assistance for at least one year in that undertaking preceding such conclusion will, subject to the arrangements of sub-Section (2), be qualified for notice and pay as per the arrangements of Section 25F, as though the workman had been saved: as long as any place the endeavour is shut down by virtue of inescapable conditions outside the ability to control of the business, the remuneration to be paid to the workman under (b) of Section 25F will not surpass his normal compensation cash for 3 months. A defence- An undertaking which is shut somewhere near reason only of-

• money related challenges (counting budgetary misfortunes); or 
• amassing of undisposed of stocks; or 
• the finish of the time of the rent or permit conceded to it; or 
• for a situation any place the venture is occupied with mining Activities, fatigue of the minerals in the region in which such tasks are continued; will not be considered to be shut down because of inescapable conditions outside the ability to control of the business. 

Conclusion Compensation and Ex gratia instalment 

Where an undertaking is shut down in any way, shape or form, each workman who has been in ceaseless assistance for at least one year in that undertaking preceding such conclusion will, subject to the arrangements of sub-section (2), be qualified for notice and remuneration as per the arrangements of Section 25F. 

Legality of Section 25-FFF 

Section 25 – FFF of the Industrial disputes Act, 1947 talks is sacred as it secures the interests of the workmen by giving remuneration to the workmen after the conclusion of the establishment. 

Section 25-G: Procedure for Retrenchment 

Where any workman in an industrial establishment, who is a resident of India, is to be saved and he has a place with a specific classification of workmen in that establishment, without any understanding between the business and the workman for this benefit, the business will commonly conserve the workman who was the last individual to be utilized in that classification, except if for motivations to be recorded the business saves some other workman. 

Alleviation in the event of unjustified conservation 

End of a worker dependent on illicit alleviation will give that representative the help of restoration.

Industrial establishment 

Every one of these methods are followed in an industrial establishment wherein the individuals are utilized and pursue these guidelines as needs be. 

Locale of the High Court

Conservation has more to it than only end of work by a business. There are a large group of lawful arrangements which oversee the act of conservation. 

“the end by the business of the administration of a workman under any conditions, generally than as a discipline dispensed by method for disciplinary activity, yet does exclude- 

(a) deliberate retirement of the workman, or 

(b) retirement of the workman on arriving at the time of superannuating if the agreement of work between the business and the workman concerned contains a stipulation for that sake; or 

(b) end of the administration of the workman because of the non-evacuation of the agreement of work between the business and the workman concerned on its expiry or of such agreement being ended under a stipulation for that sake contained in that; or 

(c) end of the administration of a workman on the ground of proceeded with sick wellbeing. 

Section 25-H: Re-work of conserved workmen 

Where any workmen are saved and utilized takes into his utilize any people, he will, in any way be recommended, give an open door 2 to the conserved workmen who are residents of India to offer themselves for re-business and such saved workman] who offer themselves for re-work will have inclination over different people. 

Section 25-J: Effect of Laws conflicting with this Chapter 

(1) The arrangements of this Chapter will have an impact despite anything conflicting therewith contained in some other law including standing requests made under the Industrial Employment (Standing Orders) Act, provided that where under the arrangements of some other Act or rules, requests or notices gave thereunder or compelled or under any award, agreement of administration or something else, a working individual is qualified for focal points in regard of any issue that are more ideal to him than those which he would be entitled under this Act, the working individual will, in any case, be qualified for a ton of positive advantages in regard of that issue, despite that he gets benefits in regard of different issues under this Act.

(2) For the expulsion of questions, it is therefore proclaimed that nothing contained in this Chapter will be esteemed to influence the arrangements of some other law for the time being compelling in any State to the extent that that law accommodates the settlement of industrial disputes, anyway the rights and liabilities of businesses and workmen in so far as they identify with lay-off and conservation will be resolved as per the arrangements of this Chapter. 

Exceptional arrangements identifying with Lay-off, Retrenchment and Closure in Certain Establishments 

Section 25-K: Application of Chapter V-B 

1. The arrangements of this Section apply to an industrial establishment (not being an establishment of regular character or work being performed irregularly) in which not more than one hundred workmen were utilized on a normal for each working day for as long as a year. 
2. On the off chance that an inquiry emerges whether an industrial establishment is of an occasional character or whether work is performed in that just discontinuously, the choice of the proper Government consequently will be conclusive. 

Section 25-M: Prohibition of lay-off 

• No workman (other than a badli workman or an easygoing workman) whose name is borne on the muster rolls of an industrial establishment to which this Chapter applies will be laid-off by his manager aside from the one with the earlier consent of the fitting Government or such authority as could likewise be determined by that Government by notice inside the 
• Official Gazette (hereinafter in this Section referenced as the predetermined position), acquired on an application made for this sake, except if such lay-off is because of deficiency of intensity or to regular catastrophe, and on account of a mine, such lay-off is expected additionally to fire, flood, overabundance of inflammable gas or explosion.
• An application for authorization under sub-Section (1) will be made by the business in the endorsed way expressing unmistakably the purposes behind the expected lay-off and a duplicate of such application will be served simultaneously on the workmen associated with the recommended way. 
• Any place the working individual (other than badli workmen or easygoing workmen) of an industrial foundation, being mine, have been laid-off under sub-Section (1) for reasons of fire, flood or abundance of inflammable gas or blast, the business, in connection with such establishment, will, inside a time of thirty days from the date of the beginning of such lay-off, apply, inside the recommended way, to the suitable Government or the predetermined expert for consent to proceed with the lay-off. 
• Where an application for authorization under sub-Section (1) or sub-Section (3) has been made, the proper Government or the predefined authority, in the wake of making such enquiry as it might suspect fit and once giving a sensible possibility of being heard to the business, the workmen concerned and the people inspired by such lay-off, may, having respect to the validity and sufficiency of the explanations behind such lay-off, the interests of the workmen and each option important elements, by request and for motivations to be recorded in writing, allow or decline to give such consent and a reproduction of such request will be conveyed to the business and furthermore the workmen. 
• Where an application for authorization under sub-Section (1) or sub-Section (3) has been made and the proper Government or the predefined authority doesn’t convey the request giving or declining to give consent to the business inside a time of sixty days from the date on which such application is made, the authorization applied for will be esteemed to have been allowed on the termination of a similar time of sixty days. 
• A request for the appropriate Government or the ideal authority allowing or declining to concede authorization will, subject to the arrangements of sub-Section (7), be conclusive and official on every one of the parties in question and will remain viable for one year from the date of such request. 
• The reasonable Government or the ideal authority could, either all alone movement or on the application made by the business or any workman, audit its request giving or declining to concede authorization under sub-Section (4) or allude the issue or, all things considered, cause it to allude to a Tribunal for arbitration: Provided that where a reference has been made to a tribunal under this subSection, it will pass an award inside a time of thirty days from the date of such reference. 
• Where no application for authorization under sub-Section (1) is made, or where no application for consent under sub-Section (3) is made inside the period determined in that, or where the authorization for any lay-off has been can’t, such lay-off will be considered to be illicit from the date on which the workmen had been laid-off and the workmen will be qualified for any or all advantages under any law for the time being compelling as though they’d not been laid-off. 
• Even so, something contained inside the former arrangements of this Section, the suitable Government may, on the off chance that it is fulfilled that inferable from such uncommon conditions as mishap in the establishment or on the other hand the demise of the business or structure, it is essential so to do, by request, direct that the arrangements of sub-Section (1), or, all things considered, sub-Section (3) will not matter in connection to such an establishment for such period as may be determined in the request. 
• The arrangements of Section 25C (other than the second stipulation thereto) will apply to instances of lay-off referenced in the Section.

Clarification –

For the reasons for this Section, a workman will not be esteemed to be laid-off by a business if such manager offers any elective work (which in the assessment of the business doesn’t require any exceptional ability or past mastery and might be finished by the workman) inside a similar establishment from which he has been laid-off or in some other organization having a place with a similar boss, arrange in a similar town or town, or arrange inside such good ways from the establishment to which he has a place that the exchange won’t include undue hardship to the working individual having respect to the realities and conditions of his case, given that the wages which would typically have been paid to the working individual are offered for the decision arrangement conjointly.

Section 25-N: Conditions point of reference to conservation of workmen

Conditions point of reference to the conservation of workmen- 

No workman utilized in any industrial business, who has been in persistent help for at least one year, under a business will be saved by that business until: 

• The workman has been given three months see in writing demonstrating the purposes behind conservation and the time of notice has lapsed, or the workman has been paid in lieu of such notice, compensation for the time of notice; 
• The earlier consent of the proper government or such authority as might be determined by that government by notice in authentic paper has been gotten on an application made for this sake. 

Section 25-O: Procedure for bringing down an undertaking

• A business who expects to shut down his undertaking of an industrial establishment will, in the endorsed way apply for earlier consent at any rate 90 days before the date on which the planned conclusion is to get powerful, to the suitable government, expressing obviously the aim of conclusion and the purposes behind the proposed conclusion of the undertaking and will likewise be served all the while on the workmen of the establishment in a recommended way. (nothing in this subsection applies to undertaking taking every necessary step of building streets, channels, dams, bridges, structures and other development work. 
• An application for the consent of conclusion of the undertaking is given to the suitable government by the business, the government makes legitimate enquiry and the sensible opportunity to be heard by the business, representatives/workmen and every one of the people keen on the conclusion may, the sensibility and legitimacy of their point is viewed as remembering the interests of the overall population is remembered in addition to all other important variables, the award or refusal is given to the business dependent on the entirety of this by the proper government. 
• At the point when an application has been submitted to the proper government inside 90 days, and the suitable government doesn’t give the letter of award or refusal inside 60 days, it is regarded to be allowed after the termination of 60 days. 
• The last request of the government allowing or denying of the conclusion of the undertaking is conclusive and will tie the entirety of the parties and it will stay in power for a whole year. 
• The gave government may likewise survey the award or refusal offer, in view of its own movement or an application, put together by the workman or allude to a tribunal or mediation. 
• At the point when the use of conclusion had not been made by the business inside the period determined, at that point the authorization would be rejected by the fitting government and on the off chance that despite everything they go on with the conclusion, at that point the conclusion would be viewed as illicit, however, all the workmen will be given all advantages under the law until further notice in power as though the undertaking hadn’t shut. 
• Despite anything contained in the previous arrangements of this Section, the suitable government may, on the off chance that it is fulfilled that inferable from such uncommon conditions as mishap in the undertaking or passing of the business or the like it is essential so to do, the arrangements of this Section will not matter in connection to such undertaking for such period as might be determined in the request. 

Retention in service

Where an undertaking is allowed to be shut down or where authorization for conclusion is esteemed to be in all actuality, each workman who is utilized in that undertaking preceding the date of use for consent under this Section, will be qualified for get remuneration which will be equal to fifteen days’ normal compensation for each completed year of constant service or any part thereof more than a half year. 

Legality of old Section 25-O 

The alterations made in Section 25-O by the Orissa Ordinance 3 of 1983, Section 3 (w.e.f. 21-2-1983) identify with Section 25-O before its substitution by the Central Act 46 of 1982, Section 14 (w.e.f. 21-8-1984).

Defendability of corrected Section 25-O 

A business who expects to shut down his undertaking of an industrial establishment will, in the recommended way apply for earlier consent at any rate 90 days before the date on which the proposed conclusion is to get viable, to the proper government, expressing unmistakably the aim of conclusion and the purposes behind the planned conclusion of the undertaking and will likewise be served all the while on the workmen of the establishment in an endorsed way. (nothing in this subsection applies to undertaking taking the necessary steps of building streets, waterways, dams, bridges, structures and other development work. 

Section 25-P: Special Provision as to controlling of undertaking shut down before initiation of the Industrial Disputes (Amendment) Act, 1976

Unique arrangements as to restarting the undertaking shut down before the industrial disputes (revision) Act, 1976. On the off chance that the suitable government knows about any undertaking of an industrial establishment to which this Section applies and is shut down before the beginning of industrial disputes (change) Act 1976- 

• That such undertaking was shut down dependent on unavoidable conditions outside the ability to control the business. 
• That there are potential outcomes of restarting the undertaking 
• It is important for the recovery of the workmen utilized in such an undertaking before its conclusion or for the upkeep of provisions and services fundamental to the life of the network to restart the undertaking or both. 
• The restarting of the undertaking won’t bring about hardship to the business and workmen, in any connection to the undertaking, it might, in the wake of allowing a chance to manager and workmen, direct, by request distributed in the official periodical, that the undertaking will be restarted inside such time as might be indicated in the request. 

Section 25-Q: Penalty for lay-off and retrenchment 

Any business who contradicts any arrangements of Section 25M and Section 25N will be rebuffed with detainment for a term of a half year or would be charged a fine of Rs. 5000 or both. 

Section 25-R: Penalty for conclusion 

1. Any business who shuts down an undertaking without following the arrangements of the above Sections will be culpable with detainment for a term which may reach out to a half year or a fine which might be of 5000 rupees or both. 
2. Any business who negates, a request declining to allow consent to shut down an undertaking under the above Sections will be culpable with detainment for a term which may broaden up to 1 year or a fine which may expand up to 5000 rupees, or with both, and where the contradiction is proceeding with one, with a further fine which may expand up to 2000 rupees for consistently during which the repudiation proceeds after the removal. 

Unfair Labor Practices 

Unreasonable work practices are those practices which are finished by the businesses, representatives or the workmen which are unscrupulous or unlawful in nature and they could likewise be deserving of law. Such activities ought to be kept away from by the businesses, representatives and workmen no matter what. 

Section 25-T: Prohibition of out of line work practices 

No business or a workman or a trade union, regardless of whether enlisted under trade unions Act 1926 or not, will not submit any uncalled for work practice. 

Section 25-U: Penalty for submitting unreasonable work practices 

Unfair Labor Practices 

Unreasonable work practices are those practices which are finished by the businesses, representatives or the workmen which are untrustworthy or unlawful in nature and they could likewise be deserving of law. Such activities ought to be stayed away from by the businesses, representatives and workmen no matter what. 

Out of line work practices with respect to managers and trade unions of businesses; 

With respect to businesses and trade union of managers-

(1) To meddle with, control, or pressure, workmen in the activity of their entitlement to arrange, structure, join or help a trade union or to take part in deliberate activities for the motivations behind aggregate bartering or other common guide or security, in other words.- 

• Compromising the workmen with release or expulsion, on the off chance that they join a trade union; 
• Compromising a lockout or conclusion if a trade union is sorted out. 
• Conceding compensation to increment workmen at significant times of trade union association, with the end goal of undermining the endeavours of the trade union at associations. 

(2) To overwhelm, meddle with or contribute support, budgetary or something else, to any trade union, in other words, 

•  A business taking an Active enthusiasm for sorting out a trade union of his workmen. 
•  A business demonstrating incompletely or giving support to one of a few trade unions endeavouring to compose his workmen or to his individuals, where such a trade is certifiably not a perceived trade union. 

(3) To set up business supported trade unions of workmen. 

(4) To energize or dishearten enrollment in any trade union by suppressing any workman, in other words,

• releasing or rebuffing a workman since he asked other workmen to join or organize a trade union; 
• releasing or expelling a workman for participating in any strike (not being a strike which is esteemed to be an illicit strike under this Act; 
• Changing the position rating or workmen due to trade union activities; 
• Declining to advance workmen of higher posts because of their trade union activities; 
• Giving outlandish advancements to certain workmen with the end goal of making conflict among other workmen, or to undermine the quality of their trade union; 
• Releasing office-bearers or Active individuals from the trade union by virtue of their trade union activities.

(5) To release or expel workmen- 

• By method for exploitation 
• Not in accordance with some basic honesty, however in the colourable of businesses rights. 
• By erroneously ensnaring a workman on a criminal case on bogus proof or on composed prove. For plainly bogus reasons.
• On false or exaggerated charges of nonattendance without leave 
• In absolute negligence of the standards of national equity in the direction of household enquiry or with undue flurry. 
• For the wrongdoing of a minor specialized character, without having any respect to the idea of the incomplete unfortunate behaviour or the past record or service of the workman, along these lines prompting a disappropriate discipline. 

(6) To cancel crafted by a standard nature being finished by workmen, and to give such work to contractors as a proportion of breaking a strike. 

(7) To move a workman mala fide starting with one spot then onto the next, under the pretence of following administration strategy. 

(8) to demand individual workmen, who are on an individual strike to sign a decent direct bond, as a precondition to enable them to continue working. 

(9) to demonstrate preference to a labourer or indicating them somewhat to one lot of workers paying little heed to the legitimacy. 

(10) To utilize workmen as “badlis”, casuals or alternates and to proceed with them in that capacity for a considerable length of time, with the object of denying them of the status and benefits of the changeless workmen. 

(11) To release or oppress any working man for recording charges or affirming against a business in any request or proceeding concerning any industrial question. 

(12) to enrol a workman during a strike which isn’t an illicit strike. 

(13) Failure to actualize award, settlement or understanding. 

(14) To enjoy acts of power or brutality. 

(15) To decline to deal altogether in accordance with some basic honesty with the perceived trade unions. 

(16) Proposing or proceeding with a lock-out esteemed to be illicit under this Act. 

Unfair work practices with respect to workmen and trade unions of workmen 

• To prompt or actively bolster or impel any strike to be considered illicit under this Act. 
• To pressure workmen justified to self-association or to join a trade union or to avoid joining any trade union, in other words

• for a trade union or its individuals to picketing in such a way that non-striking workmen are physically suspended from entering the work environments; 
• to enjoy Acts of power or brutality or to hold out dangers of terrorizing regarding a negative mark against non-striking workmen or against administrative staff.

(3) For a perceived union to decline to deal by and large in compliance with common decency with the business. 

(4) To enjoy coercive activities against the confirmation of a bartering agent. 

(5) To arrange, energize or induce such types of coercive actions as willful, “go-moderate”, hunching down on the work premises subsequent to working hours or “gherao” of any of the individuals from the administrative or other staff. 

(6) To organize showings at the habitation of the businesses or the administrative staff individuals. 

(7) To instigate or enjoy obstinate harm to boss’ property associated with the industry. 

(8) To enjoy Acts of power or savagery or to hold out the dangers of terrorizing against any workman so as to keep him from going to work.

Penalties

Section 26: Penalty for illicit strikes and lock-outs 

• Any workman who proceeds, starts, or Acts generally in encouragement of a strike which is unlawful under this Act, will be culpable with detainment for a term which may reach out to as long as a half year or a fine which may stretch out up to 60 rupees, or with both.
• Any business who starts, proceeds or Acts in encouragement of a lock-out which is illegal under this Act will be culpable with detainment for a term which may reach out to multi-month, or a fine which may stretch out to 1000 rupees or with both.

Section 27: Penalty for affectation, and so on

Any individual who actuates or affects others to partake in, or generally acts in assistance of a strike or lockout, which is unlawful under this Act, will be culpable with detainment of a term which may stretch out to a half year, or a fine which may reach out to 1000 rupees or both. 

Section 28: Penalty for giving money related guide to unlawful strikes and lock-outs

Any individual who exhausts or applies cash in direct facilitation or backing of any unlawful strikeout lockout will be culpable with detainment for a term which may reach out to half a year, or a fine which may stretch out to 1000 rupees or both. 

Section 29: Penalty for break of settlement or award 

Any individual who submits a break of a term of any settlement or award, which is authoritative on him under this Act, will be culpable with detainment for a term which may reach out to a half year, or with fine, or with both, and where the rupture is proceeding with one, with a further fine which may stretch out to 200 rupees for consistently during which the break proceeds after the conviction for the first] and the Court attempting the offence.

Section 30: Penalty for unveiling secret data

Punishment for unveiling secret data.- Any individual who wilfully uncovers any such data as is alluded to in Section 21 in negation of the arrangements of that Section will, on protest made by or in the interest of the trade union or individual business influenced, be culpable with detainment for a term which may reach out to a half year, or with fine which may stretch out to one thousand rupees, or with both. 

Section 30-A: Penalty for conclusion without taking note 

Any business who shuts down any undertaking without consenting to the arrangements of the above Section will be culpable with detainment for a term which may reach out to half a year, or a fine which may stretch out to 5000 rupees or both. 

Section 31: Penalty for different offences 

(1) Any business who contradicts the arrangements of Section 33 will be culpable with detainment for a term which may stretch out to a half year, or with fine which can be one thousand rupees, or with both. 

(2) Whoever repudiates any of the arrangements of this Act or any standard made under that will, if the same punishment is somewhere else given by or under this Act for such contradiction, be culpable with fine which may stretch out to 100 rupees. 

Miscellaneous

Section 32: Offense by organizations and so on 

Offence by organizations, and so on.- Where an individual submitting an offence under this Act is an organization, or other body corporate, or a relationship of people (regardless of whether fused or not), each chief, administrator, secretary, operator or other official or individual worried about the administration thereof will, except if he demonstrates that the offence was submitted without his insight or assent, be considered to be liable of such offence.

Section 33: Conditions of service, etc.to stay unaltered 

During the pendency of any such continuing in regard of an industrial question, the business may, as per the standing requests material to a workman worried in such case or, where there are no such standing requests, as per the particulars of the contract, regardless of whether express or suggested, among him and the workman- 

• adjust, concerning any issue not associated with the question, the states of service pertinent to that workman preceding the initiation of such continuing; or 
• for any unfortunate behavior not associated with the contest, or release or rebuff, regardless of whether by rejection or something else, that workman: Provided that no such workman will be released or expelled, except if he has been paid wages for one month and an application has been made by the business to the authority before which the procedure is pending for endorsement of the action taken by the business. 

During the pendency of 

During the pendency of any such continuing in regard of an industrial case, the business may, as per the standing requests appropriate to a workman, worried in such question or where there are no such standing offers, as per the terms of the contract, regardless of whether express or suggested, among him and the workman- 

• Modify, concerning any issue associated with the contest, the states of service pertinent to that workman before the initiation of such continuing 
• For any wrongdoing not associated with the question, or release or rebuff, regardless of whether by rejection or something else, that workman: gave that no workman will be released or expelled, except if he has been paid wages for one month and an application is made to the business by the authority before which the procedure is pending for endorsement of the action taken by the business. 

Protected workman

Despite anything contained in the above sub-section, no business will, during the pendency of any such continuing in regard to an industrial case, make any move against any ensured workman worried in such question 

• By changing, to the preference of such ensured workman, the states of service relevant to him preceding the beginning of such procedures. 
• By releasing or rebuffing, regardless of whether by rejection or something else, such secured workman, spare with the express authorization in writing of the authority before which the proceeding is pending. Like, with the end goal of this sub-section, a “secured workman”, in connection to an establishment, implies a workman who, being an individual from the official or other office carrier of an enlisted trade union associated with the establishment, is perceived all things considered as per rules made for his benefit. 

Dismissal for misconduct

For any unfortunate behaviour associated with the case, release or rebuff, regardless of whether by expulsion or something else, any workmen engaged with such question, spare with the express authorization in writing of the authority before which the proceeding is pending.

Also, for any expulsion not associated with the question, release or rebuff, regardless of whether by rejection or something else, that workman: Provided that no such workman will be released or expelled, except if he has been paid wages for one month and an application has been made by the business to the authority before which the procedure is pending for endorsement of the action taken by the business. 

Adjustment in states of service 

Adjust, in respect to the issue not associated with the case, the states of service relevant to that workman preceding the beginning of such continuing. By modifying the bias of such ensured workman, the states of service relevant to him preceding the initiation of such procedures. 

Suspension of workmen before acquiring consent 

For any offence associated with the question, release or rebuff whether, by expulsion or something else, any workmen worried in such contest, spare with the express consent in writing of the authority before which the proceeding is pending. 

Jurisdiction of Tribunal under Section 33 

Prima facie case 

Kanan Devan Hills Produce Co. v. Industrial Tribunal, Ernakulam 

Fair inquiry

A fair inquiry should be set up without any unfair means or practices. 

Domestic enquiry-

Section 33(1)(b) 

For any unfortunate behaviour associated with the case, release or rebuff whether by expulsion or something else, any workmen worried in such question, spare with the express authorization in writing of the authority before which the proceeding is pending. 

Jurisdiction of the Tribunal to allow endorsement under Section 33(2) 

During such pendency of any such continuing in any such industrial question, the business may, as per the standing requests material to a workman in such case or where there are no such standing requests, as per the provisions of the contract, regardless of whether express or suggested, among him and the workman-

1. Modify, as to any issue not associated with the question, the states of service appropriate to that workman preceding the initiation of such continuing. 
2. For any wrongdoing not associated with the contest, or release or rebuff, regardless of whether by expulsion or something else, that workman: gave that no workman will be released or expelled, except if he has been paid wages for one month and an application has been made by the business to the authority before which the procedure is pending will be pending for endorsement of the Action taken by the business. 

Regularisation of daily wages 

The wages have to be regularised irrespective of the pendency of proceedings only if the worker hasn’t done something wrong. 

Jurisdiction under Section 33 after the publication of award

In accordance with the provisions of this Act, the award may be given to the party as per the appropriate provisions of the government.

Permission or approval no bar to reference under Section 10

(refer to above Section 10)

Application for approval of the Action taken

When an application is given to a conciliation officer, they should give the approval of the Action taken within three months of giving the application. 

Section 33-A: Special provision for adjudication as to whether the conditions of service etc. changed during the pendency of proceedings

During the pendency of proceedings

When an employer fails to comply with the provisions of Section 33 before the conciliation office, any employee aggrieved by such contravention may make a complaint. 

Adjudication under Section 33-A

The conciliation officer should take into account in initiating in, and promoting the settlement of, such industrial dispute 

Award under Section 33-A

The arbitrator, labour court, tribunal, national tribunal will look into the matters after the receipt of such complaint, will look into it for adjudication and will submit its award to the appropriate government for adjudication and the provisions of this Act shall be applied accordingly. 

Section 33-B: Power to move certain procedures 

The fitting government may, by request in writing and the reasons expressed in that, pull back any procedure under this Act, pending under the watchful eye of a working court, tribunal and national tribunal. 

Section 33-B: Recovery of money due from an employer 

Recovery certificate 

If the suitable government is satisfied by the money that is due, it shall issue a certificate of that amount to the collector in which they would issue a certificate of that amount based on the land revenue. (Section 33-C)

Who can make an application

When a workman has his money due under a settlement or an award from an employer, he can send a representative without prejudice authorised in writing on his behalf, or also in the case of death of the worker, make an application to the suitable government so that the employer pays his dues. 

Jurisdiction of the Labour Court under sub-Section (2) 

Without prejudice, any tribunal or national tribunal under the appropriate government may transfer the proceedings to the labour courts specified for the disposal of such government by providing notice in the official gazette. 

Money or benefit capable of being computed in terms of money

For the purposes of considering money as a benefit, the labour court may consider all the evidence available and then shall determine the award after submitting a report to the labour court.

Limitation period for making application

An application has to be made within 3 months. 

Application under sub-Section (2) 

An application can be made to the suitable government for the recovery of money that is due.

Labour Court as specified by the appropriate Government

A matter can be brought up to the labour court and be passed on to them by the appropriate government. 

Section 34: Cognizance of offences 

1. No court will take the insight into any offence culpable under this Act or of the abetment of any such offence, save money on objection made by or under the authority of the suitable government. 
2. No court substandard compared to that of the metropolitan officer or a legal justice of the five star will attempt any offence culpable under this Act. 

Section 35: Protection of people 

1. No individual declining to partake or keep on participating in any strike or lockout which is illicit under this will, by reason of such refusal or by reason of any action taken by him under this Section, be dependent upon ejection from any trade union or society, or to any fine or punishment, or hardship of any privilege or any advantage to which he or his legitimate delegates would somehow or another be entitled, or be at risk to be put in any regard, either straightforwardly or in a roundabout way, under any incapacity or at any detriment as contrasted and different individuals from the union or society, anything despite what might be expected in the guidelines of a trade union or society in any case. 
2. Nothing in the standards of a general public or a trade union requiring the settlement of disputes in any way will apply to any procedure for authorizing any privilege or exclusion verified by this Section, and in such continuing the common court may, in lieu of requesting an individual who has been ousted from enrollment of a trade union or society to be reestablished to participation request that he be paid out of the assets of the trade union or society such entirety by method for remuneration or harms as the Court might suspect just. 

Section 36: Representation of parties 

1. A workman who is a party to a contest will be qualified for being spoken to in any proceeding under this Act by- 

• Any individual from the office or the workplace conveyor of an enrolled trade union of which he is a part. 
• Any individual from the official or other office carrier of an organization of trade unions to which the trade union alluded to in the above provision is partnered. 
• Where the labourer isn’t an individual from any trade union, by any individual from the official or any office conveyor of any trade associated with, or by some other workman utilized in, the industry wherein the specialist is utilized and approved in such a way as might be endorsed. 

2. A business who is a party to the case will be qualified to be spoken to in any proceeding under this Act by – 

• An official of a relationship of bosses of which he is a part. 
• Any individual from the official or other office bearer] of a league of trade unions to which the trade union alluded to in the above provision is partnered; 
• Where the labourer isn’t an individual from any trade union, by any individual from the official or other office carrier of any trade union associated with, or by some other workman utilized in, the industry wherein the specialist is utilized and approved in such way as might be endorsed. 

Section 36-A: Power to expel challenges 

1. In the event that, in the assessment of the suitable any trouble or uncertainty emerges with regards to the elucidation of any award or settlement, it might allude to address to such work court, tribunal or national tribunal as it might suspect fit. 
2. The work court, tribunal or national tribunal will to which the inquiry is alluded will, in the wake of giving the parties a chance of being heard, choose such question and its choice will be conclusive and official on the entirety of the parties. 

Section 36-B: Power to exclude 

Where the fitting government is fulfilled in connection to any industrial establishment or undertaking or any class of industrial establishment or undertakings carried on by a branch of that government that sufficient arrangements exist for the examination and settlement of industrial disputes in regard to workmen utilized in such establishment or undertaking or class of establishments or undertakings, it might, by notice in the official periodical, excluded, restrictive or genuinely such establishment or undertaking or class of establishment or undertakings from all or any arrangements of the Act.

Section 37: Protection of action taken under the Act 

No suit, arraignment or other lawful continuing will lie against any individual which is done in compliance with common decency or expected to be done incompatibility of this Act or any standards made thereunder. 

Section 38: Power to make rules 

• The fitting government may, subject to the state of past distribution, make rules to offer production to this Act. 
• In preference and without bias to the sweeping statement of the previous power, such rules may accommodate all or any of the accompanying issues, to be specific – 
  • The forces and systems of conciliation officials and sheets, courts, labour courts, tribunals, national tribunals including rules as to bringing of witnesses, the generation of archives pertinent to the topic of a request or examination, the number of individuals important to frame a majority and the way of accommodation of reports and awards. 
  • The type of assertion understanding, the way where it might be marked by the parties, the way wherein it might be marked by the parties, the way wherein a notice might be given under sub Section 3A and 10A, the intensity of the referee named in the discretion understanding and the methodology pursued by him. 
  • The arrangement of assessors in procedures under this Act. 
  • The constitution of complaint settlement experts in settlement 9C in Section 38, the way where industrial disputes might allude to such experts for settlement, the system to be trailed by such experts in the procedures in connection with disputes alluded to them and that period inside which such procedures will be finished. 
  • The constitution and the elements of and documenting of the opportunities in works advisory groups, and the system to be trailed by such councils in the release of their obligations. 
  • The recompenses allowable to individuals from courts and sheets and managing official of work courts, tribunals and national tribunals and to assessors and witnesses. 
  • The minstrel establishment which might be dispensed to a court, board, work court, tribunal or national tribunal and the pay rates and stipends payable to individuals from such establishments. 
  • The way where the individual by and to whom notice of strike and lockout might be given and the way in which such notification will be imparted. 
  • The conditions to which parties could be relevant to be spoken to by legitimate practitioners in procedures under this Act under the steady gaze of a court, work court, tribunal or national tribunal. 
  • Some other issue which is to be or might be endorsed. 
• Rules made under this Section will give that a repudiation will thereof be culpable with a fine not exceeding fifty rupees. 
• All guidelines made under this Section will, at the earliest opportunity after they’re made, be laid before the state lawmaking body or, where the proper government is the government at the centre, before the two places of parliament. 
• Each standard made by the government at the centre will be laid, when might be after it is made, before each place of parliament while it is in session for an all-out time of thirty days which might be undermined in one session or in at least two progressive sessions, and if, before the expiry of the session promptly following the session or the progressive sessions aforementioned, the two houses concur in making any adjustment in the standard, or the two houses concur that the standard ought not be made, the standard will from thereon have impact just in the changed frame or be of no impact, by and large; along these lines, nonetheless, that any such alteration or revocation will be without preference to the legitimacy of anything recently done under the standard. 

Section 39: Delegation of forces 

The fitting government may, by notice in the official periodical, direct that any power exercisable under this Act or rules made thereunder will, in connection to such issues and subject to such conditions, assuming any, as might be indicated toward the path, be exercisable moreover 

1. Where the fitting government is the government at the centre, by such official or authority subordinate to the government at the centre or by the state government or by such official or authority subordinate to the state government, as might be indicated in the warning. 
2. Where the fitting government is a state government, by such official or authority subordinate to the state government as might be indicated in the warning. 

Section 40: Power to correct Schedules 

• The proper government may, on the off chance that it is of assessment that it is practical or vital out in the open enthusiasm to do as such, by warning in the official newspaper, add to the main calendar any industry, and on such notice being given, the primary timetable will be considered to be corrected as needs be. 
• The government at the centre may, by warning of its official journal, add to or modify or alter the subsequent calendar or the third timetable and on any such notice being given, the subsequent calendar or the third timetable, by and large, will be done to be revised in like manner. 
• Each such notice will, at the earliest opportunity after it is given, be laid before the assembly of the state, if the notice has been given by a state government, or before the parliament, if the notice has been given by the government at the centre. 

Conclusion 

Thus, this was the Industrial Disputes Act which was passed by the government of India in 1947. This Act ensures peace and harmony among all the industrial establishments, and if any conflict arises, the provisions in the Industrial Disputes Act helps in solving the issue in a systematic manner in which all the parties are satisfied and every decision made is fair and just.

References

• https://indiankanoon.org/doc/500379/
• http://www.mondaq.com/india/x/629148/employee+rights+labour+relations/Indian+Industrial+Disputes+Act+1947
• https://labour.gov.in/sites/default/files/THEINDUSTRIALDISPUTES_Act1947_0.pdf

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This article has been written by Avni Sharma, a Second Year intern from National Law University Odisha. This article deals with the relationship between IPRs and Competition Law.

Introduction

The interplay between Intellectual Property rights (IPR) and Competition Law, in fact, creates one of the most necessary aspects for preserving the competitive dynamic in the market. You may be wondering, what really makes this dynamic so important. The rights protected under IPR preserve the product from getting stolen by any rival and creating copies for sale in the market. The creator of a product or any idea, for that matter, must have his or her product protected at all costs. This protection will be provided by the provisions of Intellectual Property law and when it comes to the market, Competition laws will ensure that there is absolute fair competition persisting in the market. To begin with, let us have a look at the definitions of both the laws and what it includes.

Definitions

Competition Law can be defined as the set of laws protecting a fair state of market practices. The laws ensure that both the producers and the consumers are provided with a market with ethical practices and which garners real competition among the participants of the market.

Intellectual Property Law protects creations of the mind and ensures that the creators earn benefits of their own creation. The protection tools are generally, trademarks, patents, copyrights, etc.

Intellectual property rights and the single market

In 2011, the European Commission set up a committee for carrying out single market operation for Intellectual Property. This committee was created to make a single market for Intellectual Property in Europe. Initially, the operations used to be such that, creators had to apply for claiming IPRs separately for separate markets. A single market will enable a person to avail of Intellectual Property Rights in the entire market of Europe. The reasons for doing that was:

• Fragmented Rights: The rights could now be claimed over the entire market of Europe instead of separate systems.
• Parasitic Copies: Since there were separate laws for separate markets, there was a good chance that the creator’s ideas could easily be copied in some other market, where the rights could not be availed.

By simple logic, one may feel that there is a visible conflict between IPR and Competition Law. Let us address the question in the section below.

Is there an inevitable tension between intellectual property rights and competition law?

The inherent conflict between IPR and Competition Laws is the fact that the IPR seeks to provide protection and monopoly to the creator of a product whereas, Competition Laws seek to provide fair and free competition by eliminating any cartels or monopolies in the market. The IPRs are not abusive of dominant position, but ironically also does form a legitimate upper position in the market.

The inherent tension between the rights may be eliminated if they serve in inherent purpose in the market. The Laws certainly have a common objective of creating a fair market place, but also entail different approaches and perspectives to the same. They do have an inevitable tension between them, but as far the Laws mark their own importance in the market and the lawmakers must make such laws that are not in contravention of each other.

Licenses of Intellectual Property Rights: Article 101 TFEU

Licenses are permission granted from someone to someone in order to use the Intellectual Property. Intellectual property, being intangible cannot ascertain possession physically. But, the possession can be ascertained by looking at the holder of the license. Licenses provide a right to the person to use the property. In some cases, the owner also transfers absolute licenses wherein, even the owner is not allowed to use the property, himself or herself.

Article 101 of the Treaty of the Functioning of the European Union prohibits the system of Cartel, which means,

1. There must not be any practice of fixing prices in the market.
2. There must be no sharing markets or fixing areas of distribution of products.
3. Ascertainment of perfectly competitive prices and competitive market. 
4. There must be no supplementary obligations form any competitor in the market.

There seems to be a conflict, prima facie, but let us have a deeper look at the aspects of licenses and understand the functioning of the system.

Typical terms in-licenses of intellectual property rights

The definitions of these terms will help us understand the nuances of in-licenses and drawing useful deductions related to the said relationship.

Territorial exclusivity

Territorial exclusivity is an agreement wherein under the certified license, the licensee ensures that the use of the license will happen only in a particular specified territory, and use its best efforts to not distribute or deliver in any other geographical territory. This agreement is not violative of the Cartel Laws, as it does not restrict any other person to sell in some other territory. It just specifies the distribution in some areas in order to use the intellectual property.

Royalties

Royalties are payments that are made to the owners who lend their property for use for a specific purpose. Royalties may be paid for a specific purpose or generally. Royalties may be of several types but mainly they can be characterized as below:

• Art and Online Royalties: Art and online royalties may be used for the use of pictures available online. It is known as ‘Stock Photography’. Such a royalty may be given as they are used in various other media.

• Music Royalties: Music royalties, as the name suggests, are paid in order to use the music produced by copyrighted artists. This is also known as ‘Performance Royalty’.

• Books Royalties: The publisher of any book has to pay a royalty to the author, in order to distribute and sell the work of the author. This is known as ‘Book Royalty’.

• Franchise Right Royalties: The businesses when they acquire a new franchise, they are required to pay the franchise owner an amount which was pre-decided according to the terms of the contract.
• Mineral Rights Royalties: The owner of the property, which has minerals stored in the land needs to be paid a royalty for the use of those minerals.

Duration

The duration of the Licenses’ validity is decided and agreed upon by the parties at the time of formation of the Contract. The duration also is considered as a major factor in determining royalty of a particular property. This also determines the time the intellectual property may be used and distributed in a legal way.

Field of use restrictions

Field of Use Restriction (FOUR) is a limitation on the use of the intellectual property. This is majorly used in technological properties, where given technologies can have multiple uses. The limitation is with regards to the use of the type of property.

For instance, there is a software which may be used as an evaluating software and as a ranking software as well. FOUR may be applied by the creator on the use of just the evaluating software. In this way, the ranking software will not be used by that individual and the creator still owns the absolute rights over the ranking software.

It is also the opposite of Endorsement wherein, the license is applied to any kind of application and it can also be transferred if the licensee wishes to.

Best endeavors and non-competition clauses

Best Endeavor Clause states that the person licensing an IP must take all steps that a prudent and reasonable person would do to protect the use of that IP. In case of a dispute, the owner shall claim liabilities and may also take away the rights if the appropriate court directs to. In Jet2.com v Blackpool Airports (2012), mentions about Best Endeavor Clause.

The Non-Competition Clause is a clause where the parties agree not to enter into a similar trade. In this case, this clause shall mean the licensee is not allowed to prepare or produce a similar property without the consent of the owner and creator. The non-competition clause was extended to IP agreements in the case of Crye Precision v. Duro Textiles, (2017) in the US.

No-challenge clauses

The No-challenge clause refers to an agreement not to take matters up for dispute in some areas which are agreed in the contract. This is with regard to the extent of the use of the property.  The parties agree that up to a certain amount of usage, the parties will not approach the court. But, in case that agreement is breached, the parties are free to file an application in any appropriate court.

Improvements tying and bundling

Tying agreements refer to the agreement of buying one thing along with buying some products. Similarly, Bundling refers to selling products in a pack. In that case, a buyer wants to buy a single product, he or she has to also buy the entire pack or bundle of goods. This can also be against one’s will.

In competition law, tying and bundling agreements are not allowed. They are considered as against the fair market competition but when it comes to IPR, there have been speculations regarding the validity of a Tied or Bundled Agreement.

In the case of United States v Microsoft, the application of the Per Se Rule was rejected. The Per Se rule is a rule which states that if a certain improvement is directly visible as illegal, then it must be considered illegal per se. The rule was not applied to IPR, in the above case. So, it may be deduced that this was taken as an exception from the general Competition Laws.

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Prices, terms, and conditions

Terms and conditions in an IPR arrangement differ from contract to contract and jurisdiction to jurisdiction. The terms and conditions are set according to the contract, and according to the demand of the parties. Similarly, the prices are supported by the negotiations that happen between the parties.

The Application of Article 101(1) to licenses of intellectual property rights

Licenses of the IPR must follow the guidelines under Article 101(1), as mentioned above. They must not indulge in any Cartel related activities. The licenses related to the cartel activities shall be declared invalid under Competition laws, in this case, Article 101(1).

Patent licenses: Territorial Exclusivity

Patents licenses are those which a business acquires in order to use a certain secured product or service without infringing and secured rights. Patent licenses largely depend on the degree of exclusivity they require to use that product or service. The types of patents are dependent on the degree of exclusivity.

• Exclusive Licence: These grant access to use the property in whichever way, required by the purpose.

• Non – exclusive License: These grant access for the usage of rights only to a certain extent.
• Partly exclusive License: These grant access to use the license but the terms and conditions as to the exclusivity as specified in the license itself.

Territorial exclusivity is a facet of exclusive licenses where the property can be used only in a specific area, geographically. This does not violate the competition laws because the territorial exclusivity is with regard to the use of intellectual property and not the distribution of it.

Case law of the EU Courts

Groupe Canal + v European Commission

Canal+ was a broadcasting company in France, which had exclusive rights over the broadcasting of content from American Studios in France (Exclusive territory). The European Commission (EC) opened an investigation relating to the violation of Article 101(1) TFEU. Canal+ argued that the broadcasting did not raise any competition concerns because instead of the violation, there was a promotion of cultural diversity through these agreements and adequate remuneration was being provided. The EC made a two-fold analysis of the plea. 

1. The court analyzed its own jurisdiction over the matter and found that it was restricted to only adjudicating over the fact whether the license agreement was against the working of Article 101(1). The matters relating to specific territorial exclusivity were to be decided by the commission only.
2. The agreement did raise competition concerns in the market and was violative of TFEU 101(1) because this agreement was dividing the market. TFEU aims at creating a single competitive market.

It was held that the exclusivity agreements are violative of the objectives set by TFEU. However,  the courts have said that exclusivity agreements can be concluded for a fixed period of time.

The Commission’s decisional practice

In its analysis, the Court examines the possible competition concerns in the light of “both the object and the economic and judicial context to which these clauses apply”. The commission’s decision practices are focused on applicability and jurisdiction.

Patent licenses: non-territorial restrictions

Patent licenses also contain non-territorial restrictions which include:

1. Know-how Licenses;
2. Copyright Licences;
3. Software Licenses;
4. Trademark Licenses; 
5. Licenses of plant breeders’ rights;
6. Subcontracting agreements;

Let us understand each type of license.

Know-how licenses

Know-how licenses are rights over a set of knowledge that one possesses. Any person who has a certain talent or know-how of something, that person can reserve the right to that set of knowledge.

Copyright licenses

A copyright license is an extended privilege, which a person acquires more than the general public over any reserved products. The person may acquire the right to use, distribute, redistribute or distribute any modifications of this product or service.

Software licenses

Software license is known as the freedom to use the software in both source code and object code forms unless that software was developed by the Government, in which case it cannot be copyrighted.

Trademark licenses

Trademark licensing is a kind of merchandising agreement. Merchandising agreements are those where the parties decide on the role of the parties according to the owners’ agreement. Trademark licensing refers to a process by which a registered trademark owner acquires powers to distribute the rights.

Licenses of plant breeders’ right

Plant Breeder Right or the Plant Variety Right is a right which secures the rights over a newfound variety of a plant. PVR helps the discoverer to retain the rights to the discovery and later claim it when researchers want to acquire the freedom to research on that particular species.

Subcontracting agreements

Subcontracting agreements are arrangements where the person who has been given a contract (contractee) can hire different contractees. That is known as subcontracting agreements.

Application of Article 101(3) TFEU to licenses of intellectual property rights

Article 101(3) provides:

“The provisions of paragraph 1 may, however, be declared inapplicable in the case of:

1. Any agreement or category of agreements between undertakings,
2. Any decision or category of decisions by associations of undertakings,
3. Any concerted practice or category of concerted practices,

which contributes to improving the production or distribution of goods or to promoting technical or economic progress, while allowing consumers a fair share of the resulting benefit, and which does not:

(a) impose on the undertakings concerned restrictions which are not indispensable to the attainment of these objectives;

(b) afford such undertakings the possibility of eliminating competition in respect of a substantial part of the products in question.”

The application of Article 101(3) is pro-competitive. The generalized approach promotes the dynamic nature of a market and promotes competition in the market.

Technology transfer agreements: Regulation 316/2014

Technology transfer agreements (TTA) are those which preserve technology rights and increase economic efficiency by reducing duplication. We are examining this because technological transfer agreements are essentially, Intellectual Property Agreements. They show the applicability The regulation is with regards to the Technology Transfer Agreements and the applicability of the TFEU. The articles will be dealt with in a systematic manner in the following section.

Article 1: Definitions

The article defines the various definitions, including the definition of an ‘agreement’, ‘technology rights’, ‘transfer agreements’, ‘reciprocal agreements’ etc. The basic words that have been used frequently and might have a tendency of being misinterpreted are added in this particular article.

Article 2: Block Exemption

There is a block exemption of the applicability of Article 101(1) TFEU on the technology transfer agreements. According to Article 2(3) of the regulation, the exemption is also put on the purchase of the licenses and distribution and the know-how of the licenses.

Many technology transfer agreements do not infringe Article 101(1)

The above exemption is provided because most of the technology transfer agreements do not infringe Article 101(1). The agreements, in fact, create a competitive regime in the market, as the technology cannot be duplicated and the participants will work towards creating another or better technology in order to be competitive in the market. So, in a way, it promotes competition in the market.

If it is not forbidden, it is permitted

According to the regulation, whatever is not forbidden under the act, will be permitted. The transfer which has not been mentioned to be expressly forbidden will be allowed under the act because they have attempted at creating regulations against all illegal arrangements in the market.

The exempted agreement must be bilateral

The agreements which are exempted from the applicability of the article are required to bilateral. Bilateral agreements refer to those agreements which are agreed by both the foreign parties to the agreement.

Duration

The exemption is valid only until the agreement is licensed by the contracting parties. The rights to the property must not be expired. As long as the license is valid, the exemption will also be considered valid.

Article 3: The Market Share Cap

The market share cap is a restriction under competing undertakings, the exception will be provided up to 20% only. Moreover, where the undertakings are not under competing undertakings, the exception will be provided up to 30% only.

Horizontal agreements

Horizontal agreements are arrangements between competitors in the market in order to maintain healthy relations among competitors. These agreements generally contain information related to prices and the markets. These can be negative for the market as they hamper the actual competition. Therefore, they are prohibited under Competition Law. Horizontal agreements are applicable in all the markets. Let us look at the technology markets and product market agreements.

Technology markets

The technology market contains the intellectual property of the creators and designers. In technology markets, horizontal agreements are allowed only till 20 percent among competitors and 30 percent with undertakings that are not competitors. This restriction is applied by Article 3 of the technology transfer agreement, discussed above.

Product markets

Product markets may also have intellectual property, but they are different from the technology market because it contains technically transferable property. The risk from the technology market is way higher than the product markets.

Vertical agreements

The agreements which happen between two stages of the production. For example, a retailer may have an agreement with a wholesaler in order to fix prices and markets in the next stage of distribution. These are also prohibited under Competition Law because Price Fixing is a facet of the Cartel system, which is prohibited, strictly.

Technology markets

Vertical agreements are prohibited under the technological market. The calculation is exactly the same as the horizontal agreements, except the difference of level in the distribution chain.

Product markets

Vertical agreements are also prohibited in the product markets because of the products which may be sold at a price pre-fixed, which may be a hindrance in creating a perfectly competitive market.

Examples

For example, there has been a transfer in a property which is software. The property has been transferred down in the chain of distribution. There is one more transfer which has been done among the market. The transfers also have agreements related to price-fixing and market distribution. The first situation is a vertical agreement and the second situation is a horizontal agreement. Both the agreements are invalid under competition law because they have consented to things which are prohibited under cartel laws 

Article 4: Hard-core restrictions

Hard-core restriction, according to Article 4 is applicable to competing and non-competing undertakings in a market. Let us have a look at the provisions, step by step.

Agreements between competing undertakings: horizontal agreements

The exception from article 2 will not apply to the undertakings which are under agreements which have any of the following:

Prices

First provision states that there must not be any restriction on the ability to ascertain prices by any agreement. Such agreements will lead to the removal of the exception provided in Article 2.

Output

There must be no restrictions as to the output except on the contract only on one of the licenses where the license has been applied in a reciprocal agreement. The output must not be restricted except for the application of these rules.

The allocation of markets and customers

There is an obligation on the licensee to protect the property and not share or transfer the property to anybody. The allocation of market share and customers is prohibited except certain circumstances such as those mentioned in Article 3.

Exploitation by the licensee

Exploitation of the property by the licensee will be prosecuted by the licensor which may be fined with heavy compliance fines. The licensee must not transfer or distribute property beyond the agreement. 

Agreements between non-competing agreements: vertical agreements

Article 3 mentions that agreements between the non-competing agreements must non-competing undertaking must not be involved in Vertical agreements because they are against the competition laws of TFEU. There are certain restrictions imposed by the present statute, which are listed below.

Prices

Prices must not be fixed under vertical agreements as they are violative of the TFEU.

Territories and customer groups

Geographical territories must not be marked between businesses under vertical agreements. This creates customer groups which leads to violation of the statute. 

Restrictions in selective distribution systems

These practices mentioned above lead to selective distribution systems which is strictly prohibited under the TFEU or competition laws.

Article 5: Excluded Restrictions

Article 5 mentions that the exception under Article 2 shall not be given to:

1. The innovations made to the property and the changes made by the licensee.
2. Any property held in a union, in case of an exclusive license.
3. Non-competing parties as indirect obligation unless such restriction is indispensable to understand the know-how to third parties.

Article 6: Withdrawal in Individual Cases

Article 6(1): Withdrawal by the Commission in individual cases

The Commission may withdraw the benefit of this Regulation, pursuant to Article 29(1) of Regulation (EC) No 1/2003. The benefits of these regulations will be severed if,

1. Access to third parties is denied
2. Access to potential licensees is restricted.

Article 6(2): Withdrawal by a Non-Compatible Agreement of a Member State

The exceptions may also be excluded when the agreement is incompatible with Article 101(3) of the Treaty in the territory of a Member State. State may also withdraw benefits by the application of Article 29(2) of Regulation (EC) No 1/2003.

Article 7: Non-Application of the Regulation

The application of this regulation will not be valid if more than 50 per cent of the relevant market contains technology transfer agreements on that market. This is in pursuance of Article 1a of Regulation (EC) No 19/65/EEC.

Article 8: Application of the market share thresholds

Application of Article 3 will happen in the following way:

1. Market share shall be calculated on sales value.
2. Market share will also be calculated in relation to the preceding calendar year.
3. The market share held by the undertakings referred to in point (e) of the second subparagraph of Article 1(2) shall be apportioned equally to each undertaking having the rights or the powers listed in point (a) of the second subparagraph of Article 1(2).
4. Calculations will be made on the basis of the present technological resources present in the market.
5. If the market share referred to in Article 3(1) or (2) is initially not more than 20 % or 30 % respectively, but subsequently rises above those levels, the exemption provided for in Article 2 shall continue to apply for a period of two consecutive calendar years following the year in which the 20 % threshold or 30 % threshold was first exceeded.

Articles 9 to 11: Other Block Exemptions, Transitional Period and Period of Validity

• Article 9: The exemption will not apply to those agreements that come under the scope of Regulation (EU) No 1217/2010.

• Article 10: The prohibition laid down in Article 101(1) of the Treaty shall not apply from 1 May 2014 until 30 April 2015 to agreements already in force on 30 April 2014.
• Article 11: This Regulation shall enter into force on 1 May 2014. It shall expire on 30 April 2026.

Application of Article 101 to other agreements relating to intellectual property rights

Application of Article 101 falls directly on other agreements relating to intellectual property rights. TFEU prohibits certain agreements under Intellectual Property Law but, there are certain exceptions granted in order to make the two laws compatible with each other.

Technology pools

Technology pool is a collection of resources that are kept ready for general use. When clients approach these pools for resources, the resources are provided to them. However, instead of leasing them or selling them, these resources are returned after use.

Effect of technology pools

Technology pools have both pro-competitive effects as well as anti-competitive effects. The effects are listed down below:

Pro-competitive effects

The competition is boosted in the market because the resources are readily available for the use of all the competitors in the market. This provides equal opportunity to all the competitors which will induce fair competition in any single market.

Anti-competitive effects

The competition is also hampered because it provides exceptions which leave a way to create a divide in the markets. It may also lead to the creation of separate markets and restriction on the dynamic growth of the market.

Regulation 316/2014

This regulation, as discussed above, provides certain exceptions related to technology transfer agreements. These exceptions are provided to bring them in compliance with Intellectual Property laws and Competition law.

Assessment of the formation and operation of technology pools

• Reliability and risk analysis:

The reliability and risks are checked and the market is checked whether it is fit to acquire the technology pools or not.

• Economic analyses:

The market is also assessed through its market economic analysis so that the formation of operation of technology pools is checked and then formed.

Open participation

The technology pools are open for participation from any member of the relevant market. They do not have restrictions as to participation from any member, which aids in creating a market that is open to a fair and competitive market.

Selection and nature of the pooled technologies

Pooled technologies are selective in nature as they are clubbed together because of their nature and technology. Selected technologies are clubbed for greater access to all the competitors of the market.

Selection and function of independent experts

The selection and function of experts are done after due deliberation and the experts help in the improvements of the technology. 

Exchange of sensitive information

Technology pools may lead to an exchange of sensitive information. It is the duty of the resource taker to keep the sensitive information safe and not to take undue advantage of the resource.

A safe harbor

A safe harbor is a law that says that certain conduct will not be deemed to be a violation of the law. Technology pools also keep a certain set of conducts as a safe harbor, which will help in the sustainability of the technology pools and the safety of resource takers. There are also several safeguards that also save sensitive information.

Assessment of individual restraints in agreements between the pool and its licensees

The way in which a technology pool is formed, organized and operated can reduce the risk of it having the object or effect of restricting competition and provide assurances to the effect that the arrangement is pro-competitive. In assessing the possible competitive risks and efficiencies, the Commission will, inter alia, take into account the transparency of the pool creation process; the selection and nature of the pooled technologies, including the extent to which independent experts are involved in the creation and operation of the pool and whether safeguards against exchange of sensitive information and independent dispute resolution mechanisms have been put in place.

Copyright pools

Copyright pools is an arrangement where multiple copyrights are available for use of all the members. It is an example of IPR based collective rights organizations. This is similar to technology pools and helps the IPR community to have access to a greater number of copyrights.

Settlements of litigation

Since the disputes are very costly and very consuming the parties prefer settlements instead of litigation. Let us have a look at the settlement agreements.

Settlement agreements

In order to settle a case that is related to a patent being infringed or not, the parties agree to settle. However, these agreements are considered against Article 101 of the TFEU. If the parties are actual potential competitors in the market, there are high chances of an agreement t d=ivide markets and that will lead to violation of Competition Laws.

‘Pay for delay’ agreements

These agreements are generally used in medical patent infringement settlements. The party that is sued, pays the party suing for the delay in infringements.

Cross-licensing

These are agreements where the companies share their patents with each other. These agreements are not violative of competition law because this leads to the formation of better products for the market.

No-challenge clauses

No-challenge clauses are those which prevent a licensee to challenge the validity of a technology, benefit from the safe harbor under neither the 2004 Technology Transfer Block Exemption Regulation (TTBER) nor the revised TTBER. They are to be assessed individually as they can be a significant barrier to the removal of invalid IPR from the market.

Trademark settlements

Trademark settlements are agreements between two or more parties to avoid litigation and smoothing the process of avoiding the conflict.

Article 102 and Intellectual Property Rights

Article 102 prohibits the abuse of a dominant position in the internal market. This provision was contained in Article 82 of the EC Treaty. Intellectual property rights may have a conflict in this area because, through the advent of Intellectual Property Rights, the rights provide the property holder with a dominant position. That dominant position may be misused in many ways. These may be understood better with cases provided below.

Compulsory licenses

The Renault and Volvo Judgment

In this case, the geographical markets were ascertained, the dominant position was assessed. Finally, certain ancillary restrictions were posed:

1.  Licenses related to RIV and Renault needed to be contractually obliged.
2. Renault or Volvo were requested to comply with the treatment of ancillary restrictions in order to smoothen disruptions in traditional lines of supply.
3. The parties had agreed on certain non-compete provisions, whereby Renault undertakes for a period of five years from completion not to compete with the divested business and not to acquire certain key RVI employees for a period of one and half year or 18 months.

The Magill Case

In this case, the broadcasting rights and exclusive business zone demarcation were challenged. Under the United Kingdom and Irish copyright law, the BBC, ITV, and RTE held the television broadcasting rights. When Magill decided to acquire the licenses and provide a guide to television programs, he was refused the grant of the license. The case was taken to the European Commission and was also appealed several times. Ultimately, it was held that the holding back of licenses and not permitting any new entrant to the market is a violation of Article 86 of the Treaty of European Union. This case was heard in the European Court of Justice and is applicable to the entire region of the EU. However, this judgment was criticized on grounds of lack of lucidness.

IMS Health

IMS Health is the world’s largest supplier of information related to Pharmaceutical products. In this case, it was held that an abuse of a dominant position will be held only when that restriction of sharing the copyright leads to prohibition of the launching of a new product in the market. The dominant will also be violated in case, the product has the capacity of removing all the competition in the market.

The Microsoft Case

The Commission and the General court’s assumption of Microsoft enjoying intellectual property rights

The market of Microsoft was above 90 per cent share of the market. The closest competitor which was Apple contained only a market of 2 per cent. The courts assumed the position to be dominant because of the trend of dominance in the market.

General court’s summary of the applicable law

In 2007, the Grand Chamber of the Court of First Instance (CFI), the courts checked for any errors in calculation of misuse of power. The Court applied a Four-Pronged Test which contained 4 requirements:

1. The product or service, which is protected by the copyrights must indispensable for carrying out that business.
2. This protection must prevent the emergence of a ‘new product’.
3. The refusal must not be objectively justified.
4. All competition must be excluded from the secondary market.

General court’s benign application of the ‘new product’ requirement

The courts have applied the four-pronged test in terms of the ‘New-Product’ requirement. The new product requirement manages to have its own jurisprudence through the passage of time. This benign application also helps with the smooth functioning of the market and competition laws.

Remedy

The remedies may be available in all the competent courts and the International Courts as well. The competition laws have emerged as an important area and they may have a remedy in all the competent courts.

The Commission’s Guidance on Article 102 Enforcement Priorities

The European Commission guidance related to Article 102 is as follows:

• Market Power: An assessment of the dominant position is ascertained by the market power that the product holds.

• Anti-Competitive Foreclosure: There must be a foreclosure to the consumers that no information relating to the markets must be withheld from the customers.
• Price-Based Exclusionary Conduct: There must not be exclusionary conduct on the basis of price.

Collecting societies

Collecting societies are organizations that collect royalties on behalf of its members. The members are generally artists, musicians, etc. who have their property protected under IPR and have given their licenses, elsewhere.

Miscellaneous cases concerning intellectual property rights

There are certain miscellaneous cases that come under the Intellectual Property rights which need to be taken into consideration. Let us have a look at them:

Unlawful acquisition of technology

If there are any ways in which technology can be acquired in illegal ways, they must be declared unlawful and such acquisition must be held inappropriate, immediately.

Demanding excessive royalties

In certain cases, there are demands for excessive royalties from the licensors. This happens because of the over-estimation of the property. This must be reported and majorly, it is a decision between the parties that must be sorted internally, itself.

Seeking an injunction to enforce standard-essential patents

There may be cases where a party may seek an injunction in order to enforce standard-essential patents. The matter must be reported if the parties find this abusive.

Vexatious behavior and abuse of process

The cooperation is expected from the parties, at all times, through the process. The abuse of the process of law will lead to legal consequences. The legal process must be taken with due respect.

UK Law

Licenses of intellectual property rights: The Chapter I prohibition

Licenses under the Intellectual Property law of the UK are largely inspired by the laws from the European Union, so the laws provided in this article mirror those present in the UK laws. Chapter one of the Competition Act, 1998, states the prohibition regarding intellectual property rights.

Other agreements relating to intellectual property rights

Intellectual property Right Laws contain various agreements such as:

1. Negotiation of licensing agreements;
2. Commercial transfers and technology transfer agreements;
3. Government licensing agreements;
4. Patent licenses;
5. Trademark licenses;
6. Copyright licenses.

Anti-monopoly control of intellectual property rights: The Chapter II prohibition and market investigations

A monopoly refers to the single standing in the market. Chapter two of the Competition Act, 1998. control over anti-monopoly behavior. This happens because intellectual property rights tend to provide exclusivity to a certain person. That exclusive license may lead to the formation of a monopoly in the market.

Conclusion 

Intellectual Property Laws and Competition Laws have an inherent conflict between them but, with the advent of laws mentioned in this article have made it easy for them to co-exist. A fair conclusion would be that such conflicting laws may co-exist only when there is jurisprudence that supports this maintenance. Such cooperation helps in the growth of the market and its dynamics.

References

1. Magill Case Summary
2. Microsoft Case Summary

The post The Relationship Between Intellectual Property Rights and Competition Law appeared first on iPleaders.

This article is written by Sarabjit Singh, pursuing Certificate Course in Advanced Civil Litigation: Practice, Procedure and Drafting from Lawsikho.com. Here he discusses “Recover Possession of a Movable Property”.

Introduction

What constitutes movable property? As per ‘The Transfer of Property Act, 1882’ & ‘The General Clauses Act’, 1897 anything that is not immovable is movable property.  However, under section 2 (9) of THE REGISTRATION ACT, 1908; movable property is defined as under: –  

“Movable Property” includes standing timber, growing crops and grass, fruit upon and juice in trees, and property of every other description, except immovable property;”

Judicial analysis of the issue was made in Sukrey Kurdeppa vs. Nagireddi, wherein Mr. Justice Holloway said: “Movability may be defined to be a capacity in a thing of suffering alteration in the relation to a place; immovability incapacity for such alteration.”

However, the above may require modification when one watches on ‘Discovery Channel’ houses suffering alteration from one street address to another.  

Whenever any person is dispossessed of movable property without his consent or otherwise than by due process of law, cause shall arise for filing a suit for possession.  Since, this is with respect to a specific property so sections 7 & 8 of The Specific Relief Act, 1963, (SRA); shall be invoked to gain back possession.  

Suit for Possession 

Under Section 7 of The Specific Relief Act, 1963, (SRA) a suit for possession can be filed under any the following conditions. 

1. The property in question must be a specific movable property and not any property.
2. Person entitled to possess should have a special or temporary right over the said property.
3. Procedure to be followed shall be as per Civil Procedure Code, 1908.

Similarly, under section 8 of SRA, case for possession shall arise, when the person in possession or control is not the owner of the property.

1. But is holding the property as an agent or trustee of the owner. 
2. When it is not possible to ascertain the monetary value of the property in possession. 
3. Similarly, when it is not possible to calculate the damage to be awarded upon loss of such specific property.
4. Property is being wrongfully held. 

There is a slight difference between bringing a suit for possession u/s 7 and u/s 8 of SRA.  Under section 8 no suit can be brought about against the owner of the property, and the suit is confined only to the return of the specific property.  While u/s 7 person enjoying temporary or special possession can sue the owner. Secondly, recovery sought is for the specific movable property or equal monetary value of the property.     

Under any of the above-mentioned circumstances a suit for possession of the specific property shall lie under SRA, and the procedure to initiate such action shall be as per CPC.  

Limitation period

The limitation period for filing suit for possession is 3 years. It shall commence as per narration is given in the extract taken from Apex Court Judgment in Sankar Dastidar vs Shrimati Banjula Dastidar & Anr dated 5 December 2006.

“6. Articles 68, and 69 of the Limitation Act govern suits in respect of the movable property. For specific movable property lost or acquired by theft, or dishonest misappropriation or conversion; knowledge as regards possession of the party shall be the starting point of limitation in terms of Article 68. For any other specific movable property, the time from which the period begins to run would be when the property is wrongfully taken, in terms of Article 69.”  

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Similarly, limitation period to recover movable property deposited or pawned with depositary or pawnee shall be three years, under article 70, from the date of refusal after demand.   And if such movable property is sold then 3 years from the date the sale is known to the owner of the movable property, article 71. 

Common circumstances giving rise to suit for possession 

Perhaps most common instances are when financed motor vehicles, private and commercial are repossessed by the agents of the financers.  This is done without following the due process of law. The most frequent reason being that the owner has failed to deposit the payments due on time.  

A trustee or beneficiary can also seek possession of the movable property as per the instrument executed in this regard.  

Due process of law

• File a suit for possession, within the limitation period of 3 years u/s 7 or 8 of SRA.  Except for specific movable property which is lost, or acquired by theft, dishonest misappropriation or conversion.  

• Provide proof of entitlement/possession of the suit property. 

• Praying for possession of the suit property.

• In case of loss of pecuniary benefits, that would have arisen from a commercial property claim loss of income until recovery. 

• If the value of the suit property and damage to be awarded cannot be ascertained request appropriate interim and ad-interim injunction to protect the suit property.  

• Pray for protection from alienation, disposal, encumbering, parting with possession, wasting, damaging, or creating third party interest of any nature whatsoever etc. 

• Request appointment of a court commissioner if necessary, depending upon the circumstances. 

• Declaration for entitlement to the suit property. 

Is recovery valid if the agreement is contrary to law?

It is common practice that finance companies providing financial assistance prepare agreements that are one-sided.  Clauses included in various agreements be it hire & purchase, hypothecation or others show blatant abuse of dominance.  They give themselves unbridled powers to repossess financed goods, vehicles etc. contrary to due process of law. Additionally, clause is included in the agreement to resolve all disputes under the Arbitration and Conciliation Act, 1996.  Thus, restraining the borrower from approaching the civil courts, irrespective of the kind of illegal activity committed by the financer. 

The Kerala High Court in its judgment in Sundaram Finance Ltd. Vs. Biju Scaria, 2014; observed as follows. 

 “9.  According to section 10 of the Indian Contract Act, the object of agreement must be lawful to constitute a valid contract.  As per section 23 of The Indian Contract Act, the object of the agreement is lawful unless it is forbidden by law. An agreement preventing the borrower, from obstructing the lender from trespassing into the property or premises of the borrower after breaking open his premises where the vehicle is kept and taking away the vehicle by force is an act constituting criminal trespass, forbidden and punishable under law.  An offence or illegal activity cannot be done under an agreement, as it involves and implies injury to a person and property of another, the borrower, and it is immoral and opposed to public policy. It restrains the legal proceedings available under law to the borrower and makes a clause void under Section 28 and unenforceable under section 10 and 23 of The Indian Contract Act. This analysis gets support from Section 7 of the Specific Relief Act also.  According to section 7 of the Specific Relief Act, a person entitled to the possession of the specific movable property may recover it in the manner provided by the Code of Civil Procedure, 1908.  Even if, an illegal clause is incorporated in the agreement contrary to public policy or contrary to any provision of law under any statute or contrary to constitutional provision, and as a result whereof valuable rights of the parties are taken away, such clause is invalid, unlawful and unenforceable in the eye of law and would be null and void.”   

Therefore, in such circumstances, the court is empowered to pass an order of injunction restraining the defendant from committing any illegal activity, forbidden and punishable under law.  Recovery is possible only after following the due course of law. The honorable court concluded as follows: –

“12.  In this analysis, I hold that, in a suit for injunction alleging and apprehending illegal recovery of possession of the vehicle by force, the lender cannot put forward the defense of arbitration clause, which prevents the borrower from seeking due course of law, before the civil court, to oust jurisdiction of the Civil Court.  The suit for injunction with interim prayer for the prevention of illegal activity, on apprehension, is an equitable remedy, available to the aggrieved party, falling under Section 38 of the Specific Relief Act and Order 39, Rule1 & 2 of Code of Civil Procedure Act and jurisdiction is vested with the civil court under section 9 of CPC.  Such suit for injunction is well maintainable under section 9 of the Arbitration and Conciliation Act, 1996 also….”  

The court is well within its rights to order the seizure of movable property under order 21 rule 31 in the execution of a decree.  The court can also issue process under section 62 CPC for the seizure of movable property from a dwelling house. 

What if possession obtained on execution is reversed or varied on appeal?

It may so happen that in some cases possession of the movable property is decreed by due process of law, by a court of first instance.  And the decree-holder has gained possession fully or limited on execution of such decree. However, if later on appeal; the decree has been reversed or varied.  Then in such circumstances, the party entitled to benefit shall file an application of restitution under section 144 CPC. This shall be submitted to the court of first instance praying that the parties shall be so placed as if no decree had ever been passed. Or in case of variance, to be placed accordingly.  A separate suit shall not lie to obtain the relief specified.

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 Recover Possession of a Movable Property appeared first on iPleaders.

This article is written by Amit Prabhu, pursuing a Certificate Course in Insolvency and Bankruptcy Code from LawSikho.com. Here he discusses “Are there any norms for charging society maintenance expenses under RERA or other laws in Mumbai”.

Society maintenance charges are routine and mandatory expenses levied on the flat-owners or members within a co-operative housing society. Maintenance expenses are all-pervasive and levied even in case of commercial or industrial premises operating within the city. The objective of maintenance charges is dual. Firstly it provides for recovery of routine, stipulated and common charges viz. property tax, water tax, property insurance, power/electricity charges, security charges, upkeep, housekeeping etc., which are essential for the smooth functioning of the premises and levied only on the common areas. Additionally, it provides for collecting the regular and reasonable contribution towards major repairs that could be encountered in the future by way of a reserve fund and sinking fund. This enables replacement of depreciating assets in the future without levying an additional burden on the members at that point in time. Thus the amount so collected from members is utilized towards payment of regular overheads listed above as well as for any unforeseen events that may be encountered in the future.

While maintenance charges in an operational co-operative housing society are generally calculated as per the guidelines stated under Maharashtra Ownership of Flats Act (MOFA) 1963, in case of under-construction projects, real estate developers often charge advance or up-front maintenance charges when allottees book the apartments, in some real estate projects, the builder commits to maintain the projects for a few years initially, and then the builder recovers a maintenance charge for this, payable by the purchaser/allottee either in lump-sum or in instalments. Sometimes in addition to this, the builder also requires the purchaser/ allottee to pay a lump-sum amount towards a building maintenance corpus. These practices are not contrary to the provisions of the RERA Act, and therefore acceptable, but they shall be subject to the following conditions: a) the money charged to the purchaser/allottee for building maintenance or as a contribution to a corpus fund does not constitute an income to the builder. Therefore, the builder cannot deposit the money so recovered into his company account. b). the builder is required to open separate bank accounts for building maintenance corpus and building maintenance charges into which these amounts should be deposited. c). any interest earned on these amounts will not accrue to the builder but would accrue to the same accounts. d). The builder is required to maintain separate accounts to be certified by a Chartered Accountant showing the annual expenses from these bank accounts, ensuring that the money has been exclusively spent for the purpose intended. e). in case where the builder has given possession to allottees without making arrangement for domestic electricity connection, and consequently undertakes to pay difference between the higher rate charged by  and the normal rate for the domestic connection, this difference cannot be charged to the maintenance account, but must come out of the builder’s own resources. f). At the time of hand over of maintenance to the Residents Welfare Association (by whatever name called) the builder shall also hand over the balance amount in each of the bank accounts relating to the maintenance, as well as a copy of the description of Income and Expenditure statement duly certified by the Chartered Accountant. g). The basic principle is that the maintenance accounts are only managed by the builder in trust for a limited period, on behalf of the Residents Welfare Association, and does not constitute a stream of income for the builder. According to Real Estate (Regulation and Development) Act 2016 (“RERA”), the promoter or project developer is responsible for providing and maintaining essential and common services at a reasonable charge payable by the flat purchasers till the time the co-operative housing society or a residents’ welfare association is formed. Section 11(4)(d) of RERA states that the promoter is liable for provision and maintenance of essential services, on a reasonably chargeable basis, till the event where project maintenance is taken over by the allottees’ association. Section 11(4)(g) of RERA further states that the promoter is responsible to pay all expenses till the time he transfers physical possession of the real estate project to the allottees’ association, which the promoter has collected from the allottees, for payment of expenses/overheads. If the promoter fails to pay all or any of the outgoings collected by him from the allottees, mortgage loan and interest thereof prior to transferring the project to such allottees’ association, the promoter will continue to remain liable, post the property transfer, to pay all such outgoings and penalty charges (if any) to authorities to whom they are to be paid and be liable for the expenses of any legal proceedings, which may be undertaken by any such authority.

Once such a co-operative housing society or allottees’ association is formed, the title and maintenance of the project are formally handed over and taken care of by the said society or association thereafter. Thus the society or association has the authority and right to formulate its own guidelines for levying and collecting maintenance charges. In the case of new projects, the builder indicates a broad range of maintenance charges as there is no clarity on the actual charges which could be payable going forward. The promoter is liable to undertake maintenance using the funds collected from flat purchasers till the time of formation of society and handover of title as mentioned before.

We have seen the modalities of maintenance charges in case of under-construction projects or in cases where conveyance hasn’t been handed over to the co-operative society. Hereafter the article will cover computation and levy of maintenance charges in case of existing co-operative housing societies. The monetary contribution collected from the flat-owners or society members towards maintenance charges is covered under bye-law no. 65 of Model Bye-Laws of Co-operative Housing Society (“bye-laws”). It prescribes that maintenance charges to be collected from members are related to (a) Property taxes (b) Water taxes (c) Electricity charges incurred for common areas and lift (d) Contribution to sinking fund (e) Contribution to reserve fund (repairs and maintenance) (f) Expenses towards repairs and maintenance of society lifts, including overheads for operating the lift (f) Parking charges for vehicles (car and two-wheeler) (g) Interest or penalty on default or outstanding payments (if any) (h) Repayment of the loan and interest instalment (if any) (i) non-occupancy charges (if any) (j) Property insurance charges (k) House-keeping and upkeep (l) Non-agricultural tax or assessment (m) Education and training fund (n) Election fund (if any) (o) Any other expenses.

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Additionally, bye-law no. 66 of the bye-laws prescribes the managing committee to levy and collect service charges towards the expenses such as:

1. Property tax, electricity and water charges for society’s independent office (if any)
2. Expenses incurred on printing, stationery, postage and courier
3. Audit fees of internal and statutory auditor
4. Expenses incurred for the general body, annual general meeting and managing committee meetings
5. Applicable entrance fees towards affiliation to a housing federation
6. Sitting fees (if any) paid to the managing committee members of the society
7. Yearly subscription charges to whichever federation the co-operative housing society is affiliated
8. Payment of monthly wages / salaries of liftmen, office staff, gardeners, security agency / watchmen or any other personnel employed by such society
9. Travelling Allowance/conveyance charges to the staff and managing committee members for undertaking any official work on behalf of the society
10. Statutory enquiry fees, legal charges and retainer fees
11. Subscription to the education fund of the Maharashtra Rajya Sahakari Sangh Ltd.
12. Any other expenses or overheads approved by the general body at its meeting, which does not contradict the bye-laws of the society.

Further, bye-law no. 67(a) stipulates the way in which charges are to be shared by the members on the following basis:

1. Applicable property tax levied by the local authority (in this case the municipal corporation)
2. Applicable Water Charges on the basis of total number and size of inlets provided in each apartment
3. Sinking fund as provided under bye-law no. 13(c) 
4. Vehicle parking charges as fixed by the society’s general body during its meeting (bye-laws 84 and 85)
5. Society Service Charges divided equally among number of flats/units
6. non-occupancy charges as fixed under bye-law no.43(b)(iii)
7. For meeting expenses of normal and recurring repairs, overheads on building repairs and maintenance as per the rate fixed by society general body, provided it is minimum 0.75% (per year), of the construction cost of each flat
8. Levying interest on the delayed payments as prescribed under bye-law no.72 to be recovered from defaulting member
9. Lift repairs and maintenance inclusive of expenses for operating the elevator to be borne equally by all society members, irrespective of whether they use it or not
10. Repaying the loan and interest installment of fixed by the financing agency
11. Non-agricultural tax/assessment according to the built-up area of each apartment / unit
12. Insurance expenses calculated on the basis of built-up area of each flat. In case of an increase in the insurance premium due to storage of any specific goods inside any apartment, where such apartment is used for commercial purposes, then the additional charges of insurance premium shall be borne by those members who are responsible for the increased premium in proportion of their flat’s built-up area
13. Election fund to be borne equally by the members as prescribed by the authorities
14. Education & training fund at the rate of Rs.10 per apartment per month
15. Any other expenses as decided by the society’s general body meeting

Thus it is clear that in case of co-operative housing societies based in Mumbai, the model bye-laws for co-operative housing societies stipulated under Maharashtra Ownership of Flats Act (MOFA) 1963 prescribe the norms for charging maintenance expenses.

Sources:

1. Model bye-laws of co-operative housing society
2. The Economic Times (dated 18th Oct 2019)
3. www.commonfloor.com
4. http://www.rera.mp.gov.in/upload/files/141514066554.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 Are there any norms for charging society maintenance expenses under RERA or other laws in Mumbai appeared first on iPleaders.

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

You must wonder sometimes about LawSikho. Who are the people behind this organization? Let me share with you something about our team today. I wrote the following message to the entire group of LawSikho colleagues, who numbers around 40, last night.

Then Abhyuday told me, why don’t you share this with all our subscribers? Why not. It is a good moment for us to share this with you.

————————————————–

When we started LawSikho and focused all our attention on this one venture, in the face of tremendous challenges and setbacks in our previous business where we helped NUJS launch and market online courses, one thing worked in our favor – that we had a good team that came together to survive the difficult situation.

There were a few very dedicated colleagues who chose to stick it out while many left, and we had to pull off a series of miracles to create a stable, sustainable and then eventually a fast-growing edtech startup. We are definitely very proud of what we built up in the last 18 months. 

Since those days, some of those initial colleagues have left us, while new ones have joined. 

Those who were there in the initial team and remained with us till date, from April 2017 till today, December 2019, are the following:

Priyanka Karwa

Manoj Singh

Komal Shah

Vijay Deep

Harsh Jain

Abha Saxena

Tejal Shah

Veena Paswan

They are the original founding members of LawSikho and we are all very grateful to all of them for making what LawSikho has become. We have grown multiple times since then, and the founding team had played a key role in this success.

However, even among those who have been there since the beginning, only a few have gone on to take leadership positions as our team has grown. 

Among those who have played important leadership roles, Komal Shah and Harsh Jain have not only led from the front but have also built entire verticals and are managing P&L for a significant portion of the business each. They have built strong teams and have delivered results reliably. They have reduced the burden of responsibility of the founders to a great extent. It is hard to imagine running LawSikho without them. 

Komal has taken charge of the entire content team. Even in the absence of Abhyuday, she is doing a wonderful job independently, recruiting and managing her own team, and delivering growth. She also has been handling our compliances.

I still remember the day we were very worried after NUJS debacle, and was under tremendous personal pressure as some key members of our team left, Komal called and told me “don’t worry Ramanuj, anyone else may leave but I will not leave even if you can’t pay me a salary.” That has definitely been her commitment and dedication, even though we managed to pay her a small salary, much below her market value. She has always exceeded expectations and has delivered growth in whatever she has picked up.

She even started writing articles and making videos for marketing. She never hesitates to do whatever it takes in order to make LawSikho succeed.

Harsh has also played a key role. While you guys may know that my relationship with him did not start on a good note, but I never met anyone who is more coachable than Harsh. Whatever I taught him, he learned very fast and his implementation surpassed my own. He had joined us as an unpaid intern originally and has risen through the ranks now to lead multiple teams.

Click Above

Harsh is not only leading our litigation courses vertical, but he is also one of the teachers with the highest approval rate from students. He is managing the iPleaders blog with the help of a team and is also leading our judiciary course, development team. He is not only recruiting and training people, but he is also helping our operations team to reach excellence. His contribution to our evaluation team is truly remarkable. He helped a lot with sales as well in this last month and is continuing to do so.

He is, indeed, just like Komal, doing things that surpasses what I or Abhyuday can do in the areas he has chosen or has been asked to deal with. 

In line with our commitment to expand shareholding of the company and share ownership with those of you who grow the business and take independent charge of taking LawSikho to the next level, we have decided to recognize the contribution and leadership of Harsh and Komal. We are recognizing them as co-founder of LawSikho and also bringing both in as shareholders of the company. 

I hope that Harsh and Komal are not the last but only the first two shareholders. I hope many among you will become our partners in growing LawSikho by becoming a shareholder, and that can happen if you are leading verticals, growing teams that do stunning work and contribute to the growth of revenue and profits. 

Please note that it is not necessary that you are into sales to impact revenues. Even good products, good operations, superb customer service, and great marketing can contribute to revenue growth. There are other opportunities, like building our youtube channels to million subscribers, Tiktok, Instagram, Hindi blog, international blogs, foreign jurisdiction courses, B2B vertical, microlearning, tech and everything else that we need in order to become a 100 cr per year business. 

Please note that Abhyuday and I have set aside 20% of all of our shares of LawSikho for sharing with the best performing leaders of LawSikho who will build new verticals, teams that generate profit and make an extraordinary contribution to the company. 

We are also considering other senior members of the company for shareholding at present, both within and outside the founding team. This is a strict meritocracy, and we will only go by your contribution to the growth of LawSikho. It is not restricted to original founding members, but anyone who achieves the required level of excellence will be extended the same opportunity.

If you want to know how you can become a shareholder in LawSikho, feel free to reach out to me and have an open conversation.

——–

So that’s how we roll at LawSikho. If you take ownership of your work, you get ownership in the company!

We will be hiring some new faces in the coming months. We have open and immediate requirements for evaluators (part-time), sales, marketing, content writing, video producer and such other roles. 

You could respond to this mail and share your CV, we will get back if we find it relevant. 

Also, here are the courses in which we are currently taking enrollments:

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 LawSikho gets 2 new co-founders appeared first on iPleaders.

This article has been written by Aadarsh Singh and Himanshu Mishra, 4th-year Students, National Law University, Delhi.

Abstract: The Jurisdiction contempt of court is essential for the functioning of courts and delivery of justice. However, many a time overuse of this provision is suspected and alleged. This article attempts at, with the help of an analysis of court proceedings and the language used in the course of such proceedings, to decipher the basic issues involved and the concepts involved.

Background

The jurisprudence of contempt of court arose in the 18^th Century^[1] in common law. It perhaps is reminiscent of the court being a king’s court and the concept that the king can commit no sin or crime.

However, in the modern-day courts this concept is still found useful as The proceedings of a court need a certain amount of order and decorum in the first place, so that the business of the court can be conducted in an uninterrupted and orderly manner, and further, if the court is not respected, and rather it is held in contempt then there would be no value of its decisions. We can argue that enforcement is not the work of a court but rather of the police administration, but courts do have limited jurisdiction in this regard in the form of contempt of court proceedings. This is very lucidly reflected in R. V. Vermette[2] in these words:

‘For the essential character of a superior court of law necessarily involves that it should be invested with a power to maintain its authority and to prevent its process being obstructed and abused. Such a power is intrinsic in a superior court; it is its very life-blood, its very essence, its immanent attribute. Without such a power, the court would have form but would lack substance.’

The emphasis upon the need of promptness in contempt proceedings[3] in Keeber v Keeber[4] only goes on to highlight the importance attached with contempt jurisdiction of the courts by some jurists.

It can be argued that this jurisdiction is justified, with safeguards. The judicial thinking reflected in Attorney General v Leveller Magazine[5] where it was held that ‘It is justice itself which is flouted by contempt of court, not the individual judge who is attempting to administer it.’ appears to be clear in upholding the judicial process and not the individual dignity of the judge.

The Scales of Justice

Despite of this giving due consideration to the freedoms at stake the Supreme Court has advised caution in Jhareswar Prasad Paul[6] in the following words: ‘The power is special and needs to be exercised with care and caution. It should be used sparingly by the courts on being satisfied regarding the true effect of contemptuous conduct.’ In this case the court went ahead further in defining and restricting the contempt jurisdiction to avoid its misuse in the following words: ‘The contempt jurisdiction should be confined to the question whether there has been any deliberate disobedience of the order of the court and if the conduct of the party who is alleged to have committed such disobedience is contumacious.’                                                                            

Further, contempt of court in essence should not be contrary to the right of freedom of speech and also it should not be used for defending the judges’ individual egos, or even esteem. On the other hand as held in M.R. Prashar v. Dr. Farooq Abdullah[7] the court ruled that ‘The liberty of free expression is not to be compounded with a licence to make unfounded allegations of corruption against judiciary.’ This demonstrates an attempt to attain the mean position of equity where on the one hand freedom of speech is protected and on the other dignity and freedom of the court to function, and its functionaries is upheld. Likewise In re Ajay Kumar Pandey[8] it was observed:

 ‘fair comments, even if, out-spoken, but made without any malice and without attempting to impair the administration of justice and made in good faith in proper language do not attract any punishment for contempt of court. However, when from the criticism a deliberate, motivated and calculated attempt is discernible to bring down the image of judiciary in the estimation of the public or to impair the administration of justice or tend to bring the administration of justice into disrepute the courts must bitter themselves to uphold their dignity and the majesty of law.’

Which is in continuation of the above attempt of striking a balance between two opposing goals. Again in C.Elumalai & Others[9] the court held that ‘punishing a person for contempt of Court is indeed a drastic step and normally such action should not be taken.’ However, in the same breath the ruling goes on to add that, ‘it is not only the power but the duty of the Court to uphold and maintain the dignity of Courts and majesty of law which may call for such extreme step.’ This reinforces the dilemma outlined above. Likewise in  M. Muthuswamy v P. Kandasamy[10]  Madras High Court while dismissing a contempt petition held it to be a well settled principle of law ‘that if the action taken by the Contemnor are bona fide, without any intention to violate the order of the court, the said action cannot be treated as wilful disobedience as defined in S. 2(b) of the Contempt of Courts Act, 1971. Here the element of intention has been added to arrive at the “balance”.

Definition and types of Contempt of court

In Jhareswar Prasad Paul v. Tarak Nath Ganguly[11] it was observed that ‘The power to punish for contempt of court is a special power vested under the Constitution in the courts of record and also under the statute’.

The Indian law as embodied in the Contempt of Court Act 1971 has in its definition (in Sec-2)[12] recognised two types of contempt of court viz. ‘civil contempt’ and ‘criminal contempt’. The latter has been further classified into two categories: one which has ephemeral effect while the other that causes permanent damage to the institution and the administration of the justice[13].

The judicial interpretation of civil and criminal contempt of court however may show different judicial perspective. For example In Every Women Health Centre Society v Bridges[14] the distinction is very much on the lines of classical definition of civil and criminal law i.e. civil cases involves disputes between individuals while in criminal cases the offence is presumed to be against the state. While in AG v Times[15] the civil contempt is seen as a specific act of violating a competent court’s order, and criminal contempt is a commission of prohibitive wilful interference in the administration of the justice[16].

Jurisprudence of the contempt of court is not new and is not surprising because law is associated with the authority, and to be more than a kangaroo court and dispenser of summary justice it requires people to respect it, as in Indirect Tax Practitioners Assn. v R.K. Jain the court observed that “Faith in the administration of justice is one of the pillars through which democratic institution functions and sustains.” Likewise, in another case[17] the Judge DP Mohapatra observed that ‘The purpose of contempt jurisdiction is to uphold the majesty and dignity of the courts of law, since the respect and authority commanded by the courts of law are the greatest guarantee to an ordinary citizen and the democratic fabric of society will suffer if respect for the judiciary is undermined’.

Respect

In summary justice guns are the only justification that follow the whims of a dictator. The other types, or civilian or democratic setup it is very important that justice follows some principles of equity, fair play, Logic and Justification for its actions so that the society in general governed by this administration of justice accepts the court’s ruling or judgments guided by their own concept of right, wrong and justice.

This line of thinking incorporates the concept of ‘respect’. However, this respect is of that abstract entity known as ‘Court’. Which Roughly can be construed as being made up of a building, litigants, defendants, officers (including advocates), ‘procedures’, ‘ceremonies’, and ‘symbols’ of the court and authority personified by the judge. The judge may himself, or herself be the authority for ex. the king, ruler, dictator, or may have assigned authority by virtue of being a representative of the ruler, the constitution, or God.

In light of enunciation it becomes imperative that all these elements of the court must be defended, namely: the defendant, litigant, officers of the court (advocates and judges), procedures of the court, ceremonies and symbols of the court, and the source of the authority.

In theocratic societies where the source of authority of the ruler and the judge is divine there blasphemy laws are very important and they are zealously protected. In the societies where the king is the source of the authority, sedition laws are very important, which can be seen in imperial and colonial setups, likewise where constitution is the authority the basic principles including the freedom of the speech, personal liberties also become important and hence only the procedures of the court are to be guided and defended more zealously for the practical purposes.

In many modern legal systems and specifically in the Indian legal system there appears to be a lack of clear understanding of these principles. In the overall picture of all the systems of legal thinking explored above it would become necessary to defend 3 things, viz. (i) Processes of the court (ii) The human elements involved (iii) The authority.

This sounds very logical and is of course necessary. Further, most of the legal systems of the world ultimately defend these three for the functioning of the legal systems. The problem is not so clear understanding of the inter-relationship between these elements and the paradigm in which they have to be protected. In India the legal system is about democracy believing firmly and vowing in, and having allegiance to the Constitution of India which is seen as the source of all judicial, administrative and executive authority. As discussed earlier in India it is important for us to uphold in any judicial proceeding the dignity of the constitutional provisions including the freedom of speech, dignity of the individual, and also functioning of the court (Art. 19(2), Art. 129, and Art. 215). In this paradigm there should be a crystal clear understanding that the judge is not the ruler, priest, or an agent of the imperial power. We primarily need to protect the judge and all other human elements as citizens. This can also be argued that the judge by virtue of holding a constitutional position, or as a government employee himself or herself becomes a symbol of the constitution. With these concepts we should primarily defend under the contempt of court, the procedures and the proceedings.

In view of this the image of the judge should be that of a citizen first and not of a demigod, or super human being. Reflecting on other aspects the judges must by law be held as a citizen who holds a responsible office, should be addressed in consonance with the spirit of the constitutional article prohibiting titles (Art. 18). It is an anachronism that a judge be addressed as ‘Lord’ or ‘Ladyship’.

Remedies available to a Judge as an individual and as an officer of the court

Although the judge is also a symbol of the constitutional authority but the symbol has to take a secondary role as compared to the fundamentals of the constitution namely equity, equality, and the freedom of speech. As an individual the judge can seek protection against defamation. However, in the case of Bathina Ramakrishna Reddy[18] the court held that

‘Although contempt may include defamation, yet an offence of contempt is something more than mere defamation and is of a different character. When the act of defaming a judge is calculated to obstruct or interfere with the due course of justice or proper administration of law, it would certainly amount to contempt. Attacks upon the judges excite in the minds of the people a general dissatisfaction with all judicial determinations…… and whenever man’s allegiance to the laws is so fundamentally shaken it is the most fatal and dangerous obstruction of justice and in my opinion calls out for a more rapid and immediate redress than any other obstruction whatsoever; not for the sake of the judges as private individuals but because they are the channels by which the King’s justice is conveyed to the people”.

Three Heads

The judge at the same time wearing the three heads, one of the private citizen and individual and the second of the public servant and third as a judge. We have already discussed the balance between judge as an individual and as the judge. However, the other axis namely the judge a public servant and as an officer of the court is also important, as S-186, IPC gives them ordinary protection against obstruction on the discharge of their duties. However, this doesn’t weaken the need for the contempt laws given the very special nature of the court in the justice dispensation system.

This argument has merit, but the risk involved is obvious, and ‘Clear and present danger test[19]’ as practiced in deciding contempt situations in the US is certainly a step forward in the jurisprudence of contempt of court because: (i) It has tried to restrict the scope of the contempt of court jurisdiction, and (ii) It has bypassed the concept of ‘dignity’ and ‘scandalizing’. It may arguably be said that words like ‘honour’ and ‘dignity’ are not only difficult to define, but they can be dangerous, and in many a situations courts are seen defending their dignity under the shield of the contempt laws. This to some may be reminiscent of the defence of ‘honour’.

According to the Universal Declaration of Human Rights, ‘Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.[20]’ This way contempt of court jurisdiction has always to be weighed against the issue of Human Right of Freedom of speech.

Freedom of Speech

Krishna Iyer[21] very philosophically expressed his perception on the issue of contempt of court in the following words,

“This shift in legal philosophy will broaden the base of the citizen’s right to criticize and render the judicial power more socially valid. We are not subjects of a king but citizens of a republic and a blanket ban through the contempt power, stifling namely, Administration of justice, thus criticism of a strategic institution, forbidding the right to argue for reform of the judicial process and to comment on the performance of the judicial personnel through outspoken or marginally excessive criticism of the instrumentalities of law, and justice, may be a tall order for change through free speech is basic to our democracy, and to prevent change through criticism is to petrify the organs of democratic government. The judicial instrument is no exception.”

Likewise, Lord Atkin’s[22]says that ‘Justice is not a cloistered virtue. She must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men’. However, there are differing voices, for example, in Sanjiv Datta[23] the court took a contrary stand by saying that ‘The court’s verdict has to be respected not necessarily by the authority of its reason but always by reason of its authority.’

The Supreme Court in Rama Dayal Markarha[24] interestingly declared: “Fair and reasonable criticism of a judgment which is a public document or which is a public act of a Judge concerned with administration of justice would not constitute contempt. In fact such fair and reasonable criticism must be encouraged because after all no one, much less Judges, can claim infallibility” while refusing to consider the case of an advocate who published and distributed a paper alleging waywardness of a judge in convicting an accused without evidence to be ‘fair criticism’. This demonstrates a dangerous mixture of ambiguity of language and subjectivity in interpretation of the words ‘fair criticism’.

In Aligarh Municipal Boards[25] the judgement upholds the contempt proceeding by listing the following benefits: ‘(1) vindication of the public interest by punishment of contemptuous conduct and (2) coercion to compel the contemnor to do what the law requires of him.’

Discussion

Contempt of court is a very vexed issue; it has no simple or clear-cut answers. On the one hand the freedom of speech of an individual is at stake and on the other the proceedings of the court have to be protected against threat, coercion and intimidation for the dispensation of fair justice without fear or favour. The other irresolvable issue is of the judge as a symbol of court’s authority and the judge as an individual. The two roles of the judge are clearly distinct but the individual in the two roles is one. This leads us to the conflict between application of defamation laws for the protection of an individual’s dignity, and application of the contempt of court law for the protection of the sanctity of law. This is a philosophical issue and the boundaries between the individual and the professional are bound to be fuzzy, and dependent upon perception and interpretations.

By this discussion can only hope to enrich the ongoing debate and jurisprudential thinking can inch towards a clearer understanding of the issues in whatsoever small a way, and hopefully this would also lead to a resolution sooner or later in full, or whatsoever small a fraction.

The contempt of court proceedings are not unique in the modern legal-judicial frameworks, as we also have provisions in the Indian Penal Code to provide an atmosphere of fearlessness to public servants in the discharge of their duties so that they can perform without fear or favour[26].

In Jayarajan[27] the following points can be constructed: (i) according to the court dissection of the judgment and arguing against its legality is a fair exercise of the freedom of speech. (ii) a person has the freedom to hold their perceptions on a matter, for example in this case the defendant said that judges live in glass houses and also that the judgment’s worth was less than grass. However, the court refused to accept abusive and pejorative language. This way a line was drawn by the judges, but again this is not an absolute line, it is subjective and can keep shifting from jurisdiction to jurisdiction and country to country. There are benefits of this dynamism of interpretation as it can be argued that human circumstances are so complex and varied that straitjacketed rules with no flexibility can lead to miscarriage of law more often than not, however on the flip side this very flexibility can become a victim of human biases and imperfections.

Conclusion

As we have seen in the fore going discussion, it is very difficult decision due to the considerations of the personal liberties and the societal order that often appear to be in conflict or in opposition of each other that is why arriving at a set formula for resolving all situations where contempt jurisdiction is evoked is illusive if at all possible. The issues of the contempt of court bring us face to face with the philosophical and jurisprudential issues, and have to be resolved on a care to care basis. This doesn’t mean that the jurisprudence of contempt of court should not evolve, or would not evolve. Like it is true for all philosophical issues concerning law, we can say that in dealing with contempt of court cases current societal, beliefs, norms, conditions should be considered. Globalized human society as a singular entity and individual societies are moving towards the consensus of a world where human individual have greater autonomy, rights and dignity. In this perspective focus should be given a precedence over ‘dignity of court’, but not blindly. Contempt of court jurisdiction appears to be essential and need to be applied sparingly, with greatest caution and in cases where the court purposes of this jurisdiction lie. All the superfluous cities have sediment upon the basic concepts of this jurisdiction must be dusted and removed.

Endnotes

[1] Joseph H. Beale’s, Contempt of Court Criminal and Civil, 1908, 21 Harv. L. R., p. 161

[2] R v Vermette [1988] 1 S.C.R. 985

[3] Contempt proceedings should be dealt with swiftly and decisively and adjourned only where there was a real risk of serious prejudice which might lead to injustice.

[4] [1996] 1 FCR 199

[5] Attorney General v Leveller Magazine [1979] AC 440

[6] Jhareswar Prasad Paul v. Tarak Nath Ganguly, [2002] 5 SCC 352

[7] M.R. Prashar v. Dr. Farooq Abdullah, [1984] 1 Cr LJ 433

[8] In re: Ajay Kumar Pandey, AIR 1997 SC 260

[9] (C.Elumalai & Others v. A.G.L.Irudayaraj and Another, AIR 2009 SC 2214

[10] M. Muthuswamy v.  P. Kandasamy, SCC Online 2012 Mad 3488

[11] ibid8

[12] 2. Definitions – In this Act, unless the context otherwise requires – a) “Contempt of court” means civil contempt or criminal contempt” b) “Civil contempt” means wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court. c) “Criminal contempt” means the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which- d) Scandalizes or tends to scandalize, or lowers or tends to lower the authority of, any court, or i. Prejudices, or interferes or tends to interfere with the due course of any judicial proceeding, or ii. Interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.

[13] Delhi Judicial Service Association v.  State of Gujarat, [1991] 3 SCR 936

[14] [1990] 54 BCLR 273

[15] [1991] 2 All ER 398

[16] ibid15

[17] ibid8

[18] Bathina Ramakrishna Reddy v. The State of Madras ,AIR1952 SC 149

[19] Schenck v United States [1919] 47 US 249

[20] Universal Declaration of Human Rights, Art-19

[21] Baradakanta Mishra v. The Registrar of Orissa High Court [1974] 1 SCC 374

[22] Lord Atkin in Ambard v Attorney General of Trinidad & Tobago [1936] UKPC 16, [1936] AC 322

[23] In Re:Sanjiv Datta [1995] 3 SCC 619

[24] Rama Dayal Markarha v. State of Madhya Pradesh, AIR 1978 SC 921

[25] Aligarh Municipal Boards and ors. v. Ekta Tonga Mazdoor Unions, AIR 1970 SC 1767

[26] S.186, IPC. ‘Obstructing public servant in discharge of public functions. —Whoever voluntarily obstructs any public servant in the discharge of his public functions, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both.’

[27] M.V Jayarajan v. High Court of Kerala & Anr, SCC OnLine 2012 Mad 3488

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 Contempt of Court: Language, and the Fundamental Right of the Freedom of Speech appeared first on iPleaders.

This article has been written by Varnik Yadav, a 2^nd year Law student at GNLU.

Introduction

Hate crimes are vicious signs of narrow mindedness and deeply affect not only the injured individual but as well as the gathering with which that unfortunate casualty recognizes oneself. They affect community cohesion and social stability. A vigorous reaction is, therefore, fundamental both for individual and communal security. 

Hate crimes are distinguished from other types of crime by the motive of the perpetrator since the motive is typically unessential in demonstrating the essential components of a crime, it is rarely examined in adequate detail to draw out the genuine explanation behind the crime. If a criminal justice system does not use the concept of “hate crime”, the motive is not recognized as an essential element of the offence and the existence of hate crimes will, therefore, remain invisible.

Although states have passed different and varieties of separate laws to address hate crimes, these crimes do happen and significantly affect the person in question and the unfortunate victim’s community. If police, prosecutors, and judges can be trained to understand and respond to these crimes effectively, the damage caused by hate crimes can be lessened. 

What is a hate crime?

Hate crimes are criminal acts carried out with a bias thought process. It is this thought process that makes hate crimes not quite the same as other crimes. Hate wrongdoing isn’t one specific offence. It could be a demonstration of intimidation, dangers, property harm, assault, murder or some other criminal offence. 

The expression “hate crime” or “bias crime”, therefore, describes a sort of crime, as opposed to a particular offence inside a correctional code. An individual may carry out hate crime in a nation where there are no particular criminal sanctions by virtue of bias or prejudice. The term describes an idea, instead of a lawful definition.

Hate crimes always comprise two elements: a criminal offence committed with a bias motive. 

The first component of hate wrongdoing is that an act is committed that establishes an offence under basic criminal law. This criminal act has been referred to in this guide as the “base offence”. Since there are little varieties in lawful arrangements from nation to nation, there are a few divergences in the sort of lead that adds up to wrongdoing; still, all nations have a basic criteria that criminalize a similar kind of vicious acts. Hate crimes consistently require a base offence to have happened. If there is no base offence, there is no hate crime. 

The second component of hate wrongdoing is that the criminal act is carried out with a specific thought process, referred to in this guide as “bias”. It is this component of bias thought process that separates hate crimes from normal crimes. This implies the culprit deliberately picked the objective of the wrongdoing in view of some secured characteristic. 

Hate crimes are intended to intimidate the person in question and the victim’s community dependent on their personal attributes. Such crimes make an impression on the injured individual that they are not welcome they have the effect of denying the victim’s right to full participation in society. They additionally make an impression on individuals from the network sharing the trademark that they likewise don’t have a place, and could similarly be a target. Hate crimes, therefore, can damage the fabric of society and fragment communities. 

Bias or hate?

Taken actually, the expressions “hate crimes” or “hate motive” can be deluding. Numerous crimes that are roused by hatred are not classified as hate crimes. Murders, for example, are often motivated by hatred, yet these are not “hate crimes” except unless the victim was chosen because of a protected characteristic. 

On the other hand, wrongdoing, where the culprit doesn’t feel “hate” towards the specific unfortunate casualty, can still be viewed as hate wrongdoing. Hate is a quite certain and extraordinary passionate state, which may not appropriately portray most hate crimes.

Hate crimes can be committed for different reasons and they have been listed below : 

• the culprit could act under the influence for many reasons such as hatred, jealousy or want for peer approval; 
• the culprit may have no feelings or attraction towards the individual target of the crime but can be threatening considerations or emotions about the gathering to which the target belongs; 
• the culprit may feel hostility towards all the people  who are outside or don’t belong to  the group in which the culprit identifies himself or herself to; or 
• at an even more abstract level, the target may simply represent an idea, such as immigration, to which the culprit is hostile. 

Why have hate crime laws?

If the hate crimes are dealt with like different crimes and are not perceived as an extraordinary classification they are frequently not managed appropriately. This can manifest itself in manners, for example, specialists doubting the victim or neglecting to appropriately explore claims of bias motive; investigators limiting the offence when picking charges, and courts neglecting to apply their forces to expand sentences to mirror the motives of the culprit. Hate crimes do not occur in a vacuum; they are a violent manifestation of prejudice, which can be pervasive in the wider community. 

In instances of poor investigation, prosecution, and punishment of hate crimes, certain patterns can be observed. Where the crime is committed against an individual who is an individual from a stigmatized group (for example if the gathering is characteristically thought of as being engaged with a crime), this can influence the examination by painting the victim as being by one way or another to blame. It takes very few such cases for affected communities to become disillusioned with the response of law enforcement officials. Conversely, where prosecution and sentence assess the bias motive, such open affirmation consoles the victim that their experience has been completely perceived. This thus can motivate trust in different individuals from the network that hate crimes won’t go unpunished. Classifying the social judgment of hate crimes into law is essential to influenced networks, can assist work with confiding in the criminal equity framework, and along these lines can fix social fissures. 

Practical arguments 

The practical effect of passing hate crimes enactment can be noteworthy. Ideally, enactment is passed after a certain level of discussion inside the government, law implementation specialists and society at large. This serves to centre consideration and brings issues to light of the degree and nature of the crimes. The way toward passing enactment can in this way improve attention to and reactions to hate wrongdoing. Once authorized, the execution of hate wrongdoing enactment requires proficient preparing which builds the abilities and information on police, investigators and judges. This outcomes in improved criminal equity reactions to hate crimes.

An improved criminal equity reaction raises the certainty of influenced networks. This prompts data and participation from networks who may somehow or another be careful about the police. This prompts more examinations being settled, in connection to hate crime as well as into different issues in which police need network help. In this manner, enactment expands mindfulness and empowers better examination, which thusly prompts increasingly viable execution and improved police-community relations. 

Theoretical arguments 

First, the representative estimation of the law can and ought to be used to exhibit society’s dismissal of crimes dependent on the bias. The establishment of hate wrongdoing laws is a ground-breaking articulation of society’s judgment of specific offences as particularly unpardonable and meriting more noteworthy discipline.

Second, criminal law punishes the mischief caused. As noted already, hate crimes greatly affect the injured individual than customary crimes, and they likewise influence other people who are individuals from the unfortunate casualty’s gathering. The justification for increased sentences is, therefore, the extra harm affected both the individual and the community.

Third, hate crime laws punish the greater culpability of the perpetrator.  The culprit’s motive makes the crime more genuine than if the offense had been committed without such motive. The criminal law as often as possible forces expands punishments for acts put together with respect to their result, however on the goal of the perpetrator. This contention, therefore, expects that it is the purpose of the culprit to cause lopsided harm, or that they are reckless to the risk of additional harm. 

Are  Hate Crime Laws Discriminatory? 

A few adversaries of hate wrongdoing laws guarantee that they secure some groups more than others, and are therefore oppressive. This isn’t the situation. Although hate crimes are frequently carried out against individuals from minority communities, they can likewise happen against larger part networks as well. 

• The perpetrators may come from a minority group. 
• The target may be selected because they are part of a majority group.
  • Both perpetrator and target may be members of different minority groups. 

The guideline of balance under the watchful eye of the law implies that hate wrongdoing laws don’t and ought not to secure one gathering over another. For example, if a hate wrongdoing law incorporates ethnicity as a characteristic, it doesn’t indicate a specific one; under such a law an unfortunate casualty could be of any ethnicity, including a majority one.

Drafting legislation: Key Policy Questions

Various questions came up in the mind of the legislators and Each policy question consists of an overview of the issue, and solution on how to deal with that crime.

The following questions were posed:

Policy Question One: Should the law create a new substantive offence or operate as a penalty enhancement for existing crimes? 

Policy Question Two: Which characteristics should be included in the law? 

Policy Question Three: How should motive be defined in the law? 

Policy Question Four: How should association, affiliation and mistakes in perception be dealt with? 

Policy Question Five: What evidence is needed and how much motive is required? 

Question1: Should the law create a new substantive offence or operate as a penalty enhancement for existing crimes? 

A “substantive offence” is a separate offence that includes the bias motive as an integral element of the legal definition of the offence. 

Penalty enhancements, which are here and there alluded to as “aggravating sentencing clauses” or “aggravating circumstances clauses”, can likewise be utilized to make a hate wrongdoing law. Basically, they increment the penalty for a base offence when it is submitted with a bias thought process. At the point when penalty enhancements are utilized to rebuff hate crimes, the topic of bias thought process is generally viewed as when the wrongdoer is condemned. As it were, a wrongdoer should initially be seen as blameworthy of the base offence, and afterwards, the court thinks about whether there is adequate proof of bias to apply a penalty improvement. In customary law wards, this will be at the condemning stage. In common law purviews, assurance of blame and condemning are not separate stages, and the judge will think about proof of thought process influencing sentence as a major aspect of a similar procedure. Penalty enhancements can be either general or specific.

General penalty enhancements- Enhancement provisions that apply to a wide range of criminal offences covering mostly all of the crimes are described as general penalty enhancements. 

Specific penalty enhancements -Specific enhancements is applied to increased penalty of only some selected criminal offences. 

Question 2: Which characteristics should be included in the law?

All hate wrongdoing laws characterize ensured attributes, however various states secure various qualities. All hate wrongdoing laws ought to incorporate “race” as an ensured class. Some incorporate classifications, for example, “sex,” “sexual orientation,” and “disability.” Less commonly, some hate crime laws protect such characteristics as “education”, “profession”, “political affiliation” or “ideology.” 

The choice of protected qualities is one of the most significant parts of hate wrongdoing laws. There is no exact answer concerning which attributes ought to be incorporated, however, they are typically ones that are obvious or perceptible to other people and consequently more effectively focused by guilty parties. The choice must be made concerning the necessities of each state. 

“Race”, national origin, and ethnicity are the most commonly protected characteristics, closely followed by religion. These characteristics were the ones recognized during the early period of hate crime law-making. 

Further, some strict groups may likewise be depicted as far as “race”, and an individual might be exploited based on more than one secured trademark. To be sure the culprit may not make a qualification between the “race” and the religion of his or her victim.

The Most Commonly Protected Characteristics 

• Race
• “Race” is a social build that has no premise as a logical idea. The expression “race”, in view of its absence of clearness, can likewise cause issues of understanding for courts and law implementation. Consequently, when drafting enactment it is desirable to utilize alternative terms, for example, “family line”, “national root” or “ethnicity.” Although numerous worldwide associations, and a few states, presently abstain from utilizing the expression “race”, the utilization of related words, for example, “racism” and “racial discrimination” continues. 
• National Origin/Ethnic Origin/Ethnicity 
• The definition describes “ethnic group” as “a collectively inside a bigger populace having a genuine or putative regular ancestry, recollections of a common past, and a social concentration upon at least one representative components which characterize the group’s identity”.”National source” can now and then be utilized to signify “citizenship”, however, it can likewise mean social alliance to a national gathering, which might be connected to a state other than that of which the individual is a resident, or to no state by any stretch of the imagination.
• Nationality
• “Nationality” signifies the “legal bond between an individual and a State and doesn’t demonstrate the individual’s ethnic origin.” Nationality commonly infers citizenship or a legal status given by the state. Despite the fact that “nationality” is here and there mistaken for “national origin”, the previous ought to be utilized to mean the legal connection between a state and an individual, while the last ought to be utilized to allude to the person’s ethnic or social origin.
• Religion 

A hate wrongdoing law that incorporates religion as a trademark ought to ensure individuals from all religions and ought to likewise secure the individuals who don’t pursue a specific religion. Truth be told, some hate wrongdoing laws indicate that “religion” includes the lack of any religious belief. Atheists or non-believers are thus protected.

Question 3: defining motive – hostility or discriminatory selection? 

• In drafting a hate wrongdoing law, the words utilized in the law may have a critical effect to the classification of offences as hate crimes. Numerous states may have drafted their enactment without intentionally picking either model. It is significant likewise to hold up under as a main priority the effect the decision of model can have on investigatory and prosecutorial assets.
• The Hostility Model 

In the hostility model, the offender must have committed the offence in light of hostility or scorn dependent on one of the ensured attributes. A resolution that requires proof of a guilty party’s bigot or unfriendly intention may fit in with the prominent thought of what hate wrongdoing is, however it may likewise exhibit obstructions to usage. Regardless of whether an individual really feels “hate” is a profoundly abstract inquiry, and can be difficult to demonstrate in an official courtroom. The trouble is intensified by the way that no other criminal offences require verification of rationale as a component of the offence.

The Discriminatory Selection Model 

In the discriminatory selection model, the wrongdoer intentionally focuses on the injured individual in view of a secured trademark, yet no real disdain or hostility is important to demonstrate the offence. A guilty party who assaults a settler, feeling that the outsider is more averse to report the wrongdoing to the police, would fall inside the biased choice classification. Another type of prejudicial determination wrongdoing would be a guilty party who assaults a gay man since “gay-slamming” is basic in his companion gathering and will pick up his status and acknowledgement among his companions.

Question 4: issues of association, affiliation and (mistakes in) perception 

A few crimes are carried out against people in light of their association with a specific gathering. This association may appear as participation in or relationship with a specific gathering. Or on the other hand, it may appear as an alliance with an individual from a specific gathering, for example, an individual relationship, fellowship or marriage. International and provincial instruments secure the privilege of the opportunity of affiliation and the privilege to regard one’s private life.

Association and affiliation 

Some hate wrongdoing exploited people are picked not on the grounds that they themselves share a specific secured characteristic, but since of their relationship with other people who do.

Mistakes in Perception 

An offender may also select the victim because of a mistaken belief about the victim’s membership in a particular group. following the terrorist attacks of 11 September 2001, a wave of “backlash” crimes occurred against Muslims. 

Question 5: what evidence is needed and how much motive is required? 

Similarly, as with every single criminal offence, the choice regarding whether to squeeze charges under a specific arrangement of the reformatory code relies upon the accessibility of proof. Regardless of whether to squeeze charges in regard to hate wrongdoing relies upon whether there is adequate proof to demonstrate the bias intention. The idea of the wrongdoing, the nature of the law requirement examination, and any sacred or statutory arrangements in regards to proof will all influence a definitive choice.

Notwithstanding general issues in demonstrating the thought process, hate crimes frequently present exceptional inquiries of blended rationale. A blended intention implies that the guilty party may have had more than one purpose behind acting. Even though there is a well-known origination of “average” hate wrongdoing, in which the guilty party is spurred simply by contempt of the unfortunate casualty’s gathering, at times the thought processes behind hate crimes are unquestionably increasingly mind-boggling. Research has indicated that hate wrongdoing offences frequently have different inspirations. “Frequently culprits are affected similarly or all the more emphatically by situational factors (counting social standards that distinguish specific groups as appropriate exploited people) than by their very own mentalities towards the objective gathering.

Key points for legislators 

• Hate crime laws should recognize that people or property either can fall in the category of the victims. 
• Hate crime laws should be symmetrical in their application. 
• Courts should be required to consider them as evidence of motivation. 
• Courts should be required to state on the record reasons for applying or not applying a penalty enhancement so the motive behind it can be calculated.
• States ought to think about a mix of substantive offences and penalty enhancements. 
• Hate wrongdoing laws ought to incorporate attributes that are unchanging or basic to an individual’s personality. 
• Patterns about hate crime laws should be recognized like social and historical patterns of discrimination. 
• Hate wrongdoing laws ought to incorporate qualities that are obvious or promptly known to the wrongdoer. 

• Hate wrongdoing laws ought to abstain from utilizing ambiguous or indistinct wording.
  • Hate crime laws should use a combination of terms such as “race”, ethnicity, national origin and nationality in order to ensure broad coverage.
  • Hate wrongdoing laws should focus only on a specific emotional state of mind, for example, “hate” or “hostility.”
  • Hate crime laws should protect victims who are associated or affiliated with persons or groups having protected characteristics.
• Hate wrongdoing laws ought to incorporate offences where the guilty party was mixed up about the injured individual’s personality.
  • Hate crime laws should recognize that offenders sometimes act with multiple motives.

Conclusion 

The basic issue is that when criminal cases are indicted, the hate inspiration ought to be expressly perceived and rebuffed. Here and there when instances of hate wrongdoing are arraigned, the inspiration for choosing the person in question, (for example, the injured individual’s “race”, nationality or ethnic origin) is never referenced. On the off chance that this occurs, the chance and potential for the culprit’s discipline to deterrent affect others are lost. The risk is that the message to the person in question and the culprit is that the state doesn’t see truly the hate intention which caused the wrongdoing. 

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 Amarnath Simha, pursuing a Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution from Lawsikho.com. Here he discusses “How Does 2018 Amendment To Specific Relief Act Impact Contract Enforcement”?.

The Specific Relief Act, 1963 (Act for short) was amended by the Specific Relief (Amendment) Act, 2018 (Amending Act for short) (http://www.egazette.nic.in/writereaddata/2018/187919.pdf) which came into effect from 01.10.2018 (http://egazette.nic.in/WriteReadData/2018/189830.pdf).  

Background to the Amendment

1.1 The Ministry of Law and Justice constituted an Expert Committee on 28.01.2016 consisting of six members including the Additional Secretary, Ministry of Law and Justice as the Member Secretary of the Expert Committee.  The Expert Committee was constituted for the purpose of making suggestions for amending the Specific Relief Act, 1963. The Expert Committee deliberated and submitted a report containing its recommendations to the Minister of Law and Justice on 26.05.2016 (http://practicalacademic.blogspot.com/2018/05/download-expert-committee-report-on.html). 

Report of the Committee

The report is consisting of eight chapters with the Chapter I being the Introduction.  Chapter I contains the terms of reference which are stated hereunder in brief:

1. To review the Act from the point of view of enforceability of contracts in the context of tremendous developments and the present changed scenario involving contract based infrastructure projects, PPPs and other public projects involving huge investments;
2. To study the remedies so that specific performance is granted as a general rule and the grant of compensation or damages as an exception;
3. To examine and suggest amendments to ensure that discretionary relief is done away with.

Chapter III:  Analysis of the Provisions of the Act 

1. At paragraph 11 of the report, it is observed that the changes in some provisions of the Act will improve the ease of doing business, and will encourage parties to perform their contracts.  Primarily, the recommendations enable any party to the contract to seek whichever remedy he chooses. Hence, specific performance or injunction will be available by choice, and will no longer be exceptional or discretionary.
   
2. At paragraph 11.7 of the report, amendments were proposed that the Section 10 must be amended to make the specific performance a regular relief and not just an exceptional one.  It was also proposed that the grounds for refusal of the relief must be merged into one Section i.e., Section 14 instead of the grounds being diverse in Section 14 and 20. The new relief of compensation pursuant to substituted performance was also to be created.
3. Paragraph 11.9 of the report deals with refusal of the remedies and states that the relief can be refused under the new Section 14, 16 and 41.  

Chapter IV:  Discretion of Courts

1. At paragraph 12.1.1, it is observed in the report that the there is a lack of certainty for those asking for this remedy, and creates the need for limiting the discretion.    At paragraph 12.1.2, it was proposed that the grounds on which specific performance may be withheld should be clearly delineated in the statute. It was further observed that once the plaintiff successfully meets the conditions for obtaining specific performance, the relief must be granted unless the defendant can prove that the case falls squarely within the negative grounds or exceptions.

2. At paragraph 12.2.4 of the report, the exceptions which are to be allowed for enforcement are mentioned.  Some of them are as under:

(a) Hardship on the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff.  It was observed that when it is unreasonably burdensome for the contract to be enforced, then the contract need not be enforced and that was something out of the ordinary.  

(b) The terms of the contract or conduct of the parties at the time of entering the contract give the plaintiff an unfair advantage over the defendant.  

Chapter VII:  Amendments required to address certain contracts

The report states that the committee considered whether an amendment to the Act was required to address unconscionable contracts, unfair contracts, reciprocity in contracts etc., The committee concluded that the current provisions in the Act deal with these issues adequately, and no amendment was required.  At paragraph 17.10.2, it was concluded that Section 20(1) of the unamended Act specifically grant wide discretion to the court whilst decreeing specific performance and hence no separate provision was required as the current provisions of Section 20(1) were proposed to be incorporated into Section 14 as grounds for refusal of relief.

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Chapter VIII:  Recommendations for amendment

1. Chapter VIII of the Expert Committee report contained the recommendations for Amendment with brief explanations (pages 92-107).    All the Sections were considered and in respect of a few sections, recommendations for the amendment were made. Only a few of those recommendations with regard to the specific performance are considered herein.

2. Section 10 was to be substituted by Section 10 (1), (2) and (3).  Section 10(1) was to be as follows:

   Notwithstanding anything contained in any other law for the time being in force, a party to a contract, or any person so entitled under Section 15, shall be entitled to specific performance of a contract or injunction, unless such relief can be refused under Sections 14, 16 or 41.

3. Section 14 (1) to be substituted.  Some of its important recommendations were:-

1. Where the party or person seeking specific performance can reasonably obtain substituted performance from another source on comparable terms, including price and time.
2. The provisions of Section 20(2) of the unamended act were to be incorporated into Section 14(1) except for Section 20(2)© which dealt with the enforcement being inequitable.    In the explanation 1: to Section 20 (2), along with mere inadequacy of consideration, any rise or fall in prices or market value or any change in circumstances after entering into the contract were also included.

Differences between Expert Committee Recommendations and Actual Amendment Carried out in Respect of Specific Enforcement

Effect of these Differences

The Expert Committee in Chapter VII of its report had extensively dealt with the need for dealing with unfair or unconscionable terms and had felt that Section 20 specifically deals with it and it was recommended to incorporate the provisions of Section 20 within Section 14.  While doing so, it had referred to provisions of the law in various countries including United Kingdom, United States, Australia, Canada and New Zealand, and had also at various other places in the report referred to Uncitral and Singapore provisions. In Paragraph 17.10.1, the Expert Committee had considered whether to specifically cover unfair or unconscionable terms, a separate legislation on the lines of the Unfair Contract Terms Act, 1977 prevalent in the UK and Singapore had to be recommended or not.  Ultimately, it stated in paragraph 17.10.2, that due to incorporation of the current provisions of Section 20 into Section 14 as grounds for refusal of relief, a separate legislation was not necessary.

However, by virtue of the amendment, the provisions of Section 20 of the unamended Act have been completely been disregarded.  There seems to be no reason as to why that recommendation was not followed. The only implication would be that the Legislature and the Executive in general and the Ministry of Law and Justice, in particular, want even the contracts containing unfair and/or unconscionable terms to be specifically enforceable as a matter of routine.  Since the courts cannot attribute this intention to the Legislature, the courts will now have to consider the whole of the ‘specific performance’ relief from the pre-statutory law as to this equitable relief. Even if this intention is attributed to the legislature and sought to be honoured, it would be facing one more contention. Since the Legislature is attributed the knowledge of the entire existing law and the effect of its amendments, the courts will be forced to consider the question as to whether the legislature’s intention of making even the contracts with unfair and/or unconscionable terms enforceable supersedes the basic conscience of justice which could ultimately be attributed to Article 21 of the Constitution of India.  Hence, instead of giving statutory guidelines for the refusal of the relief of specific performance, the amendment has only made it vaguer than it could ever have been. This will only to more confusion in the years to come till it gets settled by an authoritative judgment of the Hon’ble Supreme Court. Hence, the whole objective of the amendment has been made to a nought as far as the provisions regarding the specific performance is concerned.

Criticism of one of the members of the Expert Committee as to the Amending Act

1. Mrs. Nilima Bhadbhade, one of the members of the Expert Committee, has criticised the amending Act (https://barandbench.com/specific-relief-amendment-act-hurried-legislation/).  Some of the excerpts from that article are produced herein.

2. The entire discussion in both Houses has overlooked the fact that the same amendment, and the Specific Relief Act as amended, is not restricted to business contracts, but applies to the common man and his personal contracts. The Amendment grossly violates his expectations of fairness and justice in enforcement of contractual remedies.
3. The amending Act has not adopted all recommendations of the Committee relating to the changed approach of remedies and has disregarded recommendations that ensured fairness in the procedure. The amendment has become a patchwork of some contradictory and inconsistent provisions. The amendment has been rushed without consultation with the main stakeholders who administer this Act: advocates and judges.
4. Hence, if the member of the Expert Committee, based on which the amending Act has been passed, criticises the amending Act, then it definitely deserves a relook.  This amending Act has brought in more problems than it intended to solve.

Conclusion

The terms of reference to the Expert Committee itself contained requirements to suggest changes to make specific performance to be granted as a general rule and that the discretionary relief is done away with.  The manner in which the expert committee recommendations have been ignored only shows that the report was only a pretence and nothing more. There is no reason or rhyme available on the internet as to why many of its provisions have been ignored.  The discussions in the house of the Lok Sabha which took place on 15.03.2018 show no material to verify that the legislature has actually applied its mind in this regard (http://loksabhaph.nic.in/Debates/textofdebate.aspx?tab=1&lsno=16 at pages 662-668, internal page 65 onwards).  Except for amendments moved from one member from Kerala i.e., Mr. N K Premachandran, there seems to be no discussion whatsoever on this issue.  Hence, the amending Act requires a relook immediately and comprehensively and till then the old Act has to be followed.

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This article is written by Amarnath Simha, pursuing a Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution from Lawsikho.com. Here he discusses “What is Common to Contracts in South Africa and India?”.

There are many similarities between the contractual law in South Africa and India.  Before entering into similar aspects of the contractual law, it is relevant to understand the background of the contractual law in India and South Africa.

Background of the Contractual Law

The contractual law in India is based on the common law of English and is in the statutory form i.e., the Indian Contract Act, 1872.  This statute is the mainstay of the contractual law in India even though the saving clause in Section 1 thereof saves usages, customs of trade and incidents of contracts as long as they are not inconsistent with the provisions of the Indian Contract Act, 1872.  Many specific contracts which were part of the Indian Contract Act, 1872 have now been legislated into separate Acts by themselves like the Partnership Act and the Sale of Goods Act. Some of the specific contracts like Agency, bailment, Indemnity, Guarantee and Pledge are still retained in the Indian Contract Act, 1872.  However, the entire basis of the contracts in India is still referable to the Indian Contract Act, 1872.

Background of the South African Contract Law

South Africa has a ‘hybrid’ or ‘mixed’ legal system,[1] formed by the interweaving of a number of distinct legal traditions: a civil law system inherited from the Dutch, a common law system inherited from the British, and a customary law system inherited from indigenous Africans (often termed African Customary Law, of which there are many variations depending on the tribal origin). These traditions have had a complex interrelationship, with the English influence most apparent in procedural aspects of the legal system and methods of adjudication, and the Roman-Dutch influence most visible in its substantive private law.[2] As a general rule, South Africa follows English law in both criminal and civil procedure, company law, constitutional law and the law of evidence; while Roman-Dutch common law is followed in the South African contract law, law of delict (tort), law of persons, law of things, family law, etc. With the commencement in 1994 of the interim Constitution, and in 1997 its replacement, the final Constitution, another strand has been added to this weave. (https://en.wikipedia.org/wiki/Law_of_South_Africa#:~:targetText=As%20a%20general%20rule%2C%20South, things%2C%20family%20law%2C%20etc.)

There is no statute in South African law which is similar to the Indian Contract Act, 1872.  There are a few statutes which deal with specific aspects/transactions like the National Credit Act, 2005 which regulate the credit agreements but the contractual law is mostly non-statutory.  Hence, the general system of law requires to be looked into.

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South Africa was ruled by the Dutch (Netherlands) from the 17th Century to the 19th Century and later by the Britishers.  South Africa adopted the Roman-Dutch law as its system of law and continued with it even though the Netherlands itself adopted the Napoleonic Code as the system of law.  The Roman-Dutch law was basically a civil law system i.e., the application in Holland province of the Netherlands of the modified Roman Law represented by the compilations of the Justinian and also modified by the Germanic customs.  Due to the influence of the Britishers, many aspects of the common law of England were also incorporated into the South African system of law. Since many sources of law existed, the system of law was called the South African Law, based on Roman-Dutch Law.  These aspects are gathered from The Hamlyn Lectures Series (The contribution of the English Law to South African Law; and the Rule of Law in South Africa at https://socialsciences.exeter.ac.uk/media/universityofexeter/schoolofhumanitiesandsocialsciences/law/pdfs/The_Contribution_of_English_Law_to_South_African_Law.pdf).

However, opinions vary as to the applicability of the common law of England to the contracts in South Africa.  The contractual law is said to be the modernised version of the Roman-Dutch law of contract (https://en.wikipedia.org/wiki/South_African_contract_law#Nature). The South African common law of contract is a blend of uncodified Roman Dutch law and English law. This is the historical legacy of two successive colonial powers. When one refers to the “common law of contract” in South Africa, one refers not just to the branch of the law made by the courts, but also to the underlying sources of the old Roman Dutch authorities, which remain a binding source of law.  (https://www.journalofcommonwealthlaw.org/article/7441-good-faith-in-contract-a-uniquely-south-african-perspective).

Requirements of a Valid Contract in South Africa

The basic contractual law is non-statutory.  Hence, reliance is placed on published articles which have relied upon the textbooks on the contractual law in South Africa.  

A contract, in South African Law, is said to be an agreement between the two parties containing a serious intention to create legally enforceable obligations (animus contrahendi).  A contract, in Indian Law, is an agreement enforceable under the law. Hence, there is not much difference in the definition of the contract except for the specific aspect of the requirement of a serious intention.  The intention to enter into a legal relationship is also a requirement but is examined objectively in Indian Law as to the existence of that intention.  

The requisites of a valid contract in South Africa are denoted to be the following:

• Consensus
• Contractual capacity
• Certainty
• Possibility
• Legalities
• Formalities

If the above-mentioned requirements are met, a valid and binding contract with a particular content comes into being.  The terms or content of a contract are determined by the contractual parties. These contractual terms represent the intentions and options of the parties and may be categorised as essential, naturalia or incidencialia.  (https://repository.up.ac.za/bitstream/handle/2263/45988/Mbhele_South_2015.pdf?sequence=1&isAllowed=y)  The rest of the reference to South African Contractual Law is sourced from this article.

Similarities between South African and Indian Contractual Law

Hence, it can be seen that all the basic ingredients of a contract are similar in both the South African system of law and Indian system of law even though they have different sources and origins.

Conclusion

The similarities are many but there are also many differences also.  In the opinion of many practitioners in South Africa, there is a general trend off late to remove the common law elements as it is perceived to be inequitable and more formalistic.  (https://www.journalofcommonwealthlaw.org/article/7441-good-faith-in-contract-a-uniquely-south-african-perspective).  One element of ‘good faith’ as being one of the requirements of the contract is generally being considered in the South African contractual law field to be essential, while the same element is not required in the Indian system of contractual law except in the contracts of insurance.  Hence, it can be said, apart from a few similarities, a person knowing the Indian Contract Act cannot claim to know the South African Contractual law.

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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