There is hardly any doubt that negotiation skills are an important part of doing business. In today’s hyper-connected and increasingly competitive market, the ability to negotiate effectively is more highly valued than ever before. Lack of good negotiation skills can cripple a company far more quickly than losing key customers. While most negotiating strategies seem like common sense, it’s not uncommon for people to get caught up in the emotion of the moment and ignore their basic instincts. Things such as overt emotion and luck have no place in a successful negotiation.
While creating a course on contract drafting and negotiations, we spoke to many successful managers about their experience of contract negotiations and the big wins and losses. It was quite an enlightening experience. Most of the time, managers are left on their own to learn and become good at negotiations, a skill on which a lot depends. It is also quite rare for managers to make a special effort towards learning either legal or technical aspects of contract negotiations although it can significantly increase their competitive advantage.
The onus of negotiations lies primarily on the shoulders of managers. Most of the time, when contracts end up in disputes, and negotiations break down, the blame lands on the managers involved in the immediate task. However, how are they supposed to learn the skills involved and improve their performance?
Here are 5 common pitfalls that managers frequently fall into while negotiating contracts.
1. Unclear Terms
Parties involved tend to get lost in the midst of the negotiation and lose sight of what they set out to achieve owing to half-done preparations. This makes things unclear at the negotiation table, which then leads to either side going home unhappy at the end of the day. Effective planning is the most important tool at a manager’s disposal on the negotiation table. Often, in a hurry to get things over with, people take the preparation period lightly and find themselves without contingencies during a negotiation. As a contract stands for an agreement between another party and self, over a definite period of time, it is important to make adequate inquiries beforehand. Or as is the case, you might find yourself stuck with someone who doesn’t meet your requirements or is costing you way more than other competitors in the market.
Too many clients simply want a price for your services without defining the specifics of their program or their requirements for the project. Unless you have a clearly specified scope which reflects the details and challenges of the project, you and your client shouldn’t begin a negotiation.
What You Can Do To Avoid This Pitfall:
Preparation is key. As a manager, you have to take up the reins of any and all negotiations and make sure that planning is done accordingly. Firstly, ensure that both parties understand exactly what is expected of the other.
a) Review The Contract
If you’re going into contract negotiations, you need a working understanding of the document and its language so that you can discuss it knowledgeably and modify it to fit the needs of both parties to the agreement.
b) Define Your Goals
In order to negotiate effectively, you have to be thoroughly sure of what your company’s goals are and why. As you must know already, a contract negotiation usually has just one or two major goals and the rest are secondary issues.
c) Identify Your Interests
Successful negotiations focus on both parties’ interests, rather than focussing just on the positions taken. Your interests are all the underlying concerns or needs, factors that will motivate you to take a certain position in a negotiation.
d) Establish Your Alternatives
Not all negotiations are successful, and you need to plan for this possible outcome. Consider all alternatives and viable choices regardless of any negotiation.
e) Analyze The Other Party
To be able to maturely handle a negotiation, you have to see through the eyes of the other side. The issues surrounding them can make a substantial difference with respect to your negotiations.
2. Perception Is Reality
It goes a long way once you realise that perception is more powerful than fact. Negotiation is about perceived value. People act upon what they perceive to be true. Contract negotiations work the same way. A party is perceived to have power if they have access to resources that the other requires. In a negotiation, that power keeps shifting, so a good manager must keep the perception of self, above reproach.
It is important to remember that at the end of the day, negotiations are between individuals. No matter who they represent or seek to represent, it all comes down to that one individual sitting across from you. Usually, managers tend to forget that and hence fail to adapt accordingly.
What You Can Do To Avoid This Pitfall:
You have to have the ability to create a perceived value for yourself, your company and your product in the minds of the people with whom you are negotiating. Point out the value and benefits of doing what you want to be done. Educating others is a critical negotiating skill. Compare interests and assess leverage accordingly.
a) Be fully aware of yours as well as your company’s worth
b) Be prepared to handle the risks and the liabilities on either side of the contract
c) Be ready with proof of quality as well as quantity to match the contract
d) Be precise with your terms and never set unrealistic term limits
e) Expand the issues in a negotiation
As an executive or manager in a company, you already know of the number of third parties that you have to deal with on a regular basis. It becomes imperative to make sure you come from a position of power and have the appropriate leverage. Never let a negotiation narrow down to a single issue. Any negotiation that tapers down to a single issue becomes more of a confrontation than a negotiation. They tend to involve strong emotions and leave no room for concessions. Always leave room for multiple options and choices so as to create the opportune bargaining moments.
3. Adversarial Attitude
As they say, “You don’t get what you deserve; you get what you negotiate.”
Respect is an essential part of a business. A major part of negotiations lies in the way people present themselves. It is important that your employees respect you if you want to get the most productivity out of them, and it is just as important than anyone else you are negotiating with should respect you too. Clients and vendors alike should have faith in you, slightly fearful but overall respectful.
The impression you leave after a negotiation can have a lasting impression, which can impact everything from future negotiations to your reputation in your industry. This is a place where a lot of people fall back in. They tend to get into negotiations without the necessary tact and ultimately fall flat. This can lead to problems throughout the process of negotiation as well as leave room for bad blood later. Things like that don’t make for the most suitable workplace environment.
What You Can Do To Avoid This Pitfall:
It is far better to be a somewhat intimidating character due to your negotiating skills than it is to be looked at as a pushover at the negotiating table. Instead of being a roadblock in your future deals, your ability to negotiate well and fairly will make people want to come back and work with you. However, be ready to adapt according to every individual as that will take you much farther.
a) Confrontational Negotiation
Avoid it at all costs. Find common ground with the other party. You have to learn to visualize negotiation as a search for unequivocally acceptable solutions to the problems. Always try to see things from their perspective by figuratively, if not literally, stepping to the same side or sitting in their seat when you negotiate. Any and all confrontation escalates conflicts in the workplace and forces people to seek allies and in the end, breaks the workplace into groups. Treat a negotiation as mutual problem-solving. Ask, “How can we work together to find a solution to this problem?”
Look forward to the long term. Bargaining tough is usually a good way to get a good deal, but if you consistently insist on doing so, it may damage the working environment. Whenever people are forced into the corner with respect to unworkable agreements, they spend all of their resources trying to get out of it. Either way, as a manager responsible for your company’s well-being you stand to lose. So, pay attention to building a long-term relationship and assign extra value to it. You can never go wrong with making the other party go home thinking they got a better-than-fair deal. It is what builds repeat business.
4. Unconditional Concessions
When the other person asks you to give them something, ask for something in return. For example, ask “If I do this for you, what can you do for me?” Trading concessions is an expected and accepted practice in negotiation. It works for managers, too. People perceive a concession as more valuable when it costs something to get it. Use concessions from the other party to increase the value of what you are giving them.
Sometimes the other party will ask, “Would you be willing to take X?” This is an inquiry without a specific offer. Your response should be, “Are you offering X?” Otherwise, you are committing yourself to accepting something without getting something in return.
What You Can Do To Avoid This Pitfall:
Negotiate from interests, not positions. A common problem in negotiation is deciding what conditions you will or will not accept before you do any negotiating. When that happens, you dig into your positions and defend them at all costs. An alternative is to identify the real interests and needs behind the positions and look for other ways to satisfy those needs. Listen to learn about the other person’s interests and needs. Yes, really listen to what the other person is trying to tell you. Explore why the person wants what they are asking for and what it will do for them if they get it.
a) Find ways to trade things that are of low value to you, but of high value to the other party. In return, get them to give you what is of low value to them, but highly valued by you.
b) You need to have a good understanding about the value of your services. It goes down very dramatically after the product or service has been delivered. Always negotiate beforehand and you won’t be disappointed by any performance issues on either side later.
5. Willingness To Walk Away
The general rule of thumb: Whoever is bound by circumstances and needs to the tenth degree and must reach the given agreement has the least leverage and power in the negotiation. If you have to make a deal at all costs, you are not negotiating. You might be grovelling, begging or pleading, but you are not negotiating. Many managers, although adept at browbeating an opponent into submission, fail to see the right moment to jump in or pull out of a deal. This leads to undue friction. People unable to work or deliver according to the set terms just act like dead-weight having to be pulled by the rest of the team. Many times, managers in their haste to fulfil a contract term, fail to see the liabilities attached and end up risking themselves and their company in the longer run. Ultimately, the goal of a negotiation is to get the best deal possible for you and your organization. And to do so, you have to be open to walking away from a bad deal.
What You Can Do:
Determine what you will do if you cannot negotiate an agreement, and use that option to evaluate potential deals. If you are not able to reach an agreement that is fair to all parties concerned, walking away from that negotiation might just be the best option.
We understand that contract negotiations are generally tough, take a copious amount of time and are literally responsible for making or breaking a project. You have to keep in mind that usually, everything is negotiable, but bigger companies almost always have the upper hand. So, if you are a manager for a bigger company, you will be able to get away with a lot of things. You will find vendors bending over backwards to please you, accommodate your needs just to get your business. On the other hand, if you happen to work in a smaller company or a startup, you will face much worse. Working with big established vendors would usually mean taking in onerous agreements. Regardless, if you wish to do the best for your company, negotiation is the key.
To understand more about the prospects that will be brought on by a better understanding of contract drafting and negotiations, check out our course on the subject.
You can also check out the below mentioned course for which we are currently accepting enrolment.
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 Mehar Verma, a 3rd-year law student, from Jindal Global Law School. In this article, the author has discussed the concept of criminal trespass and aggravated forms of criminal trespass.
Introduction
Every individual has a right to the full enjoyment of their property without any disturbance, this is the reason trespass was made an offence. Even though trespass is ordinarily a civil wrong for which the defendant can sue for damages, but when such trespass occurs with a criminal intention it amounts to criminal trespass. If your enjoyment of your property, whether movable or immovable is disturbed due to criminal activities of any kind, be it theft or assault, you can seek remedy under the Indian Penal Code (IPC). For instance, X unlawfully and without Y’s permission enters into Y’s house to steal his grandfather’s antique watch, X would be liable for theft as well as criminal trespass. Further, the offence of criminal trespass may be aggravated depending upon the facts of certain cases. Consider the same example, with an additional fact that X entered Y’s property at night or in order to enter the assaulted Y, then X would have a greater liability. As the subject of criminal liability is so vast, the Indian Penal Code (IPC) has discussed criminal trespass in 22 sections, commencing from Section 441, IPC till Section 462, IPC.
Meaning of Criminal Trespass
According to Section 441 of The Indian Penal Code, whoever enters into property in the possession of another with the intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into such property, but remains there with intent thereby to intimidate, insult or any such person, or with an intent to commit an offence, is said to commit ‘criminal trespass’. Thus it can be deduced that criminal trespass occurs when a person unlawfully without any right or an express or implied license enters into the private property of another person or remains into such property with a criminal intention. The object of making criminal trespass an offence is to ensure that people can enjoy their private property without any kind of interruption from outsiders. Punishment for criminal trespass, as prescribed in Section 447 of IPC is either imprisonment which may extend to three months, or fine which may extend to INR 500 or both.
Ingredients of Criminal Trespass
Criminal trespass has two limbs, firstly, entering into the property of another with criminal intent and secondly, entering lawfully but remaining in the property with a criminal intent to harm or cause annoyance. Thus the essential ingredients for committing Criminal trespass are:
‘Whoever enters’
To commit the offence of criminal trespass, there must be an actual entry into the property of another by the accused person. No trespass can occur if there is no physical instrument by the accused into the private property of the victim. In the State of Calcutta vs Abdul Sukar, the court held that constructive entry by a servant does not amount to entry, under this Section as even though there was no possession in law, there was possession in fact. For instance, X throws garbage outside Y’s house on a daily basis, in this case, X may be liable for nuisance but he has not committed criminal trespass as there is no entry by X into Y’s property.
Property
The term property under this Section includes both movable and immovable property. Wrongful entry into one’s car or other movable property would have similar liability as wrongful entry into one’s house. In Dhannonjoy v Provat Chandra Biswas, the accused drove away from the boat of the possessor after attacking him. The court held that this would amount to criminal trespass even though it was a movable property. But the term property does not include incorporeal property or something which cannot be touched, such as patent rights.
Possession of another
The possession of the property should be in the possession of the victim and not the trespasser. Having the ownership of the property is not necessary, mere possession is sufficient to claim criminal trespass against the trespasser. However, it is not necessary for the person having possession or the owner of the property to be present at the time when the trespassing occurred, no presence of owner or possessor would also amount to trespassing as long as the premises are entered into by the trespasser to annoy. For instance, writing love letters and delivering them to a girl’s house against her will would also amount to criminal trespass, even if at the time of delivering such letters, the girl was not at home.
Intention
If it is proved that the intention of the accused parties was not to insult, harm or annoy the owners or possessors of the property, then it would not amount to criminal trespass. The Intention is the essence of this crime, and if there is no dominant motive to commit the crime, no criminal trespass. The test for determining whether the entry was done with an intent to cause annoyance or any kind of harm is to determine the aim of a trespasser at the time of such entry.
In Punjab National Bank Ltd v All India Punjab National Bank Employees’ Federation, the court held that as the employees who were on strike entered the bank with the intention to only put pressure on the management to concede their demands, and there was no intent to insult, harm or annoy any of the superior officers, their entrance into the bank cannot amount to criminal trespass. However, if in the given circumstances, the strikers would have stormed into the private cubicles or offices of the superior staff with the aim of causing annoyance to such members, then it would amount to criminal trespass.
Further, it is to be proved that the intention of the accused was not probable but an actual one, this principle was laid down in Ramjan Misrty v Emperor. It is not sufficient to show that the person entering into the property of another had the knowledge that his entrance would cause annoyance, it is to be proved that there was an intention to commit an offence, or intimidate, insult or annoy any such person for an offence of criminal trespass to take place.
The offence of criminal trespass may be committed at different occasions having different magnitudes and penalties. Depending upon the time of the trespass, its purpose and nature of the property trespassed, the offence may be aggravated and specific punishments are prescribed for those specific cases. Further, a crime may be aggravated by the way it is committed and the end for which it is committed.
Trespassing into the property where a man resides and stores his belonging is an aggravated form of criminal trespassing as the greatest safeguard is required against the habitation of people. Trespassing against such property is known as house trespass and is governed by Section 442 of IPC.
House trespass may be further aggravated if it is done in a way to avoid attention, known as lurking house-trespass and is governed by Section 443 of IPC. House trespass is also aggravated when it is done violently, knowns as house-breaking and governed by Section 445 of IPC.
House trespass of any form may be aggravated based on the time when it is committed, an offence taking place at night is more serious than an offence that took place during the day time. Housebreaking by night is governed by Section 446 of IPC.
House-trespass
Section 442 of IPC, defines house-trespass as committing criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling, place of worship or as a place for the custody of the property. A place of human dwelling does not always have to be a permanent resident of the defendant, temporary residents like school or railway platforms also count as a human dwelling. However for a building to be a human dwelling it must have some walls or some kind of security and a mere fence cannot amount to a human dwelling. This offence is an aggravated form of criminal trespass, thus every house-trespass is criminal trespassing but not vice versa. As house-trespass is against the possession of a property, it cannot take place if the defendant is not in actual possession of the property.
As per Section 448 of IPC, the defendant guilty of house-trespass may be imprisoned for a term not exceeding 1 year, fined for INR 1,000 or less or both.
Lurking house-trespass
Section 443 of IPC, deals with a further aggravation of house-trespass, known as lurking house-trespass. The section defines this offence as committing house trespass and taking precautions to conceal the offence of house-trespassing from any person who has a right to exclude or eject the trespasser from the building which is the subject of the trespass. In Prem Bahadur Rai v State, the court held that unless active steps are taken by the accused to conceal his presence, no charge under Section 443 can be made. Thus the ingredients of lurking house-trespass would include:
Trespass;
House-trespass;
Concealing the house-trespass from someone who has the right to exclude to the trespasser.
Therefore hiding in a porch behind a tree would fall within this section and the trespasser, under Section 453 of IPC, would be liable to imprisonment for a maximum of 2 years and fine as may be prescribed by the court.
Lurking house-trespass by night
Section 444 of IPC, talks about an aggravated form of lurking house-trespass, i.e trespass committed at night. Any lurking house-trespass committed after sunset and before sunrise fall within the ambit of this section. This offence is punishable with imprisonment not exceeding three years and fine, according to Section 456 of IPC.
House-breaking
Housebreaking is also an aggravated form of house-trespass and implies forceful entry into one’s house. Section 445 of IPC lays down 6 ways in which housebreaking can occur, namely:
Through passage made by the house breaker himself;
Through any passage not used by any person other than the intruder;
Through any passage opened for committing an offence of housebreaking which was not intended by the house occupier to be open;
By opening any lock;
By using criminal force at either entrance or departure;
By entering or quitting any passage fastened against such entrance or exit. The word ‘fasteners’ implies something more than being closed, merely pushing of door shutters would not amount to house-breaking.
The first three ways are the one in which entry is effected by using passage which is not the ordinary means of entry or exit and the last three ways are the ones in which entry is effected by use of force. The entry of any part of the human body is sufficient to constitute housebreaking under Section 445 of IPC if the following ingredients are present:
Trespass;
House-trespass;
The entrance by the trespasser must be done in any of the 6 ways prescribed above.
In Pullabhotla Chinniah case, the court held that the breaking open of a cattle-shed in which agricultural implements are kept would also amount to house-breaking. Further, making a hole in the wall to enter a house, using a window to enter a house, assaulting the guard or doorkeeper to enter a house, all amount to housebreaking and the accused will be liable for imprisonment not exceeding 2 years and fine under Section 453 of IPC.
Housebreaking by night
When housebreaking is committed after sunset and before sunrise, it is considered an aggravated form of house-breaking and is governed by Section 446 of IPC. This offence is punishable with imprisonment not exceeding three years and fine, according to Section 456 of IPC.
Dishonestly breaking open receptacle containing property
Meaning and punishment for dishonestly breaking open receptacle containing property are defined under Section 461 of IPC. The said section punishes whoever dishonestly or with the intent of committing mischief, breaks or open any receptacle or container used as storing place. The offence is cognizable, non-bailable and triable by any magistrate and the punishment for the same may extend up to 2 years, fine, or both. The ingredients of this offence would be:
There was a closed container or receptacle;
It contained property or the accused believed it contained property;
The accused intentionally broke opened the receptacle;
The accused did so dishonestly;
The accused did so with the intent to cause mischief.
The term ‘receptacle’ signifies all kinds of vessels and not only includes a safe box, chest or closed package but also includes a room or a part of a room such as a warehouse, or godown. The only condition is that such a vessel must be closed by means of chain or bolt or fastened in any manner. The offence is said to be completed as soon as the receptacle is broken or unfastened with dishonest attention to steal or cause any other kind of mischief.
Conclusion
If a stranger or for that matter even a known person enters any property in your possession with an intent to cause harm or injury, then such a person would be liable for committing an offence of criminal trespass under IPC and remedy can be sought by any court of law. While determining the offence of criminal trespass it is necessary to have an intention to commit wrong and mere knowledge would not amount to criminal trespass. Further, the punishment prescribed for the offence of criminal trespass would depend upon the aggravation that occurred while the crime was committed. House-trespass is a more serious offence than mere criminal trespass, lurking house-trespass and house-breaking are aggravated forms of house-trespass and lastly lurking house-trespass by night and housebreaking by night would attract the highest kind of punishment.
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Satya Nadella is widely credited for turning around the fortune of Microsoft. From a behemoth that failed to remain the front runner in the big tech race, and was losing out to younger companies like Google, Amazon, and Facebook, he has turned it into number 1 again, in terms of innovation and growth.
The change has reflected clearly in the stock price of Microsoft. Since July of 2016, Microsoft stock price has more than doubled, reflecting the growth in prospects of the company’s various businesses. Since Nadella joined as CEO, the stock price has more than tripled.
Microsoft is too big a company, and it is hard to turn around or bring any meaningful change in a massive company like that with thousands of moving parts. Most human beings fail to even bring any meaningful change within their tiny nuclear family, imagine aiming for transformative change in a company that employs tens of thousands of people around the globe.
In that way, what Satya Nadella managed to do is considered incredible. A lot is being written these days about what led to this massive turnaround of Nadella and Microsoft under him. This is probably the greatest story of our time in terms of wealth creation and success, and nothing of this scale have been achieved before, except perhaps Apple under Steve Jobs.
Many have highlighted the difference between Nadella and his predecessor Steve Ballmer. Steve Ballmer was known for drama, show off, epic public appearances and meetings. He was charismatic, and he tried to inspire people with pomp and buzz. He would tell Microsoft employees that they work for the greatest company in the world so they must celebrate that.
Steve Ballmer was CEO of Microsoft for a long time, from 2000 to 2014. He was definitely successful, but Microsoft lost some crucial battles to competitors during this duration. Internet Explorer went from being the most used browser to a joke that everyone wanted to avoid, for instance. It’s Bing search engine never took off. It failed to compete with Android or Apple in the phone OS market. Windows phones never took off despite it making expensive acquisitions of companies like Nokia. Amazon built AWS and Microsoft missed the bus with Azure and was trying to catch up. There are many such examples.
Basically, despite having all the resources, money, talent in the world, Microsoft, the hot favorite, was losing match after match with relatively junior competitors.
It still did fine based on its legacy businesses, where it was entrenched and very profitable, but the future was being stolen by other newer, scrappy, more innovative companies from under the nose of Microsoft.
Satya Nadella is not just a manager, he is a techie. When he came on board, he set out to change the culture of the company. He changed the culture from competitive to collaborative. He put a premium on innovation. He got involved in tech development even himself, at the grassroots level. But the main change was in the way he saw Microsoft.
He did not bask in the glory that Microsoft was the biggest software company. He only said that there is so much possible with new technology, from AI, IoT to blockchain, how much has Microsoft done? Does it offer the best cloud software? Where is the technology industry headed? Is Microsoft leading the tech industry in innovation in these fields?
Let’s take an example. Slack is a cloud-based workplace collaboration app. It garnered million-plus users and billion-dollar valuation at rocket speed. In 2019, it went public. However, since then, it’s stock price has been going down. Why? Because Microsoft has a new cloud-based product called Team that it is selling with its Office suite, that has been hitting earning of Slack quite hard.
This was unthinkable earlier. Microsoft historically did not even consider such markets to be of significant interest. It bought Yammer, an office chat solution in 2012 but never put its full weight behind it. But not in the times of Nadella. Under him, Microsoft wants to create and sell the greatest cloud-based workplace software too. And many, many other such cloud-based solutions, taking the fight to newer companies that were so far having a free run despite Microsoft having a huge advantage thanks to Office.
Nadella sees the massive scope for growth and points out where Microsoft is not a market leader but could have been! The humility to see where you are lacking even when you are so big is the most critical turn around factor in Microsoft that Nadella has instilled.
Nadella also aggressively acquired younger and newer companies that were leading in their domain and gave them leadership within the Microsoft empire. Now, this is something that is not unusual, big companies are always acquiring startups.
What was unusual was how these companies were treated after joining Microsoft during Nadella’s tenure. Instead of destroying their previous identities and subverting their earlier vision to make them more like the old monolithic Microsoft, he let them be more like what they were before the acquisition. He perhaps wanted Microsoft to imbibe the startup-like growth mindset, that begins with humility, which was terribly missing up to that point.
What can we learn from this Microsoft-Satya Nadella revolution in our legal industry in India?
Now think of this in terms of big NLUs. What do they exactly do today that was not already done 10 years or even 20 years back? Where is the innovation? Where is the drive from next level of growth?
Alumni and teachers complain that even the good standards already created a decade back is now being compromised due to rent-seeking behavior of the new generation of students and some faculty members.
It is understandable. As a world champion boxer once said, it is hard to wake up at 4 am in the morning to run 10 km when you are sleeping in silk pajamas.
If you know that you are going to get a nice cushy job when you graduate, no matter whether you work hard or not, just based on some optics, why work so hard? Unfortunately, getting a job from campus placement of a top NLU is way easier than actually succeeding in a job. Or succeeding as a lawyer for that matter.
Sure, the NLUs can survive this way for a long time, just as Microsoft did for a long time and would have continued even if Satya Nadella was just another Steve Ballmer, and it did not seem it was under any immediate survival threat. Or it may have disappeared one sudden day under attack from new startups and global competitors just as Nokia did.
Sometimes you just survive not because you deserve to thrive but because the rest is even worse. The TINA factor – there is no alternative. That is the situation with the NLUs today.
Still, the NLU brand name has taken a beating already, and the industry is increasingly asking why it should continue to fork out top salaries for law graduates who are unable to cope with the job and leave their first job within a few months in large numbers. They already prefer to hire from their own internship programs rather than from campus placements, though doing campus placement is an important part of the big law firm optics that big law firms find hard to opt-out of.
The top few NLUs may not be under any immediate threat of losing recruiters yet, especially because there are no better alternatives, but what if such alternatives were to present themselves?
Can NLUs evolve and adapt to such threats?
Jindal Global Law School has emerged to threaten the hegemony of NLUs and has already shown how easy it is to beat the NLUs in many of their own games. JGLS has the drawback of much higher fees than even NLUs, but the gap is fast disappearing.
My guess would be that new challengers will emerge form of tech-driven education solutions that would disrupt the NLUs eventually, and that would be very easy because NLUs are not moving forward. They are either standing still or moving backward.
At LawSikho, within a couple of years, we are able to deliver an advanced level of legal education with very little resources that top NLUs fail to deliver! Please take a premium course offered by LawSikho (say M&A, contract drafting, or media law), go through the syllabus, and then ask an NLU graduate if they were taught some of that in their class, and you will find out how it is.
Imagine how things will look like 5 years or 10 years down the line. And we are certainly not going to be the only one, I expect a bunch of new edtech companies would provide the next level of legal education. A massive missed opportunity for NLUs.
What about law firms and litigation practice?
The biggest law firms have realized that the traditional areas of work that make a lot of money today are slowly losing the margins they once used to command. Premium work does not remain premium as more and more law firms and partners begin to do a certain well-paying niche work and begin to undercut to get clients.
The incumbents then have only two choices to retain their primacy – either by providing a superior quality of work or by discovering and acquiring new premium niches that replace the less profitable niches that they are leaving behind.
Sometimes they use their superior spending abilities to train their lawyers better or get better software or IT systems or captive BPOs that make their fee earners more productive and efficient.
The idea is that one must move forward. There has to be innovation and growth even if a big organization is to stay relevant. What is highly profitable today, will probably not remain so profitable tomorrow, and that is the nature of the game. However, if you keep innovating, if you stay humble and focus on growth opportunities, you can stay miles ahead of everyone else!
Is it all that different in litigation? I think not. If you want to build a successful litigation today, you cannot follow the footsteps of Jethmalani or Salve. You need to find new markets with unsolved problems, and find new business models and service delivery systems to success big. Vakilsearch is a great example, with hundreds of lawyers, it is not a law firm but a very big legal services delivery organization that has leveraged technology and the internet to disrupt hundreds of law firms and CAs. The business model and the use of technology has been critical in its success.
Unfortunately, too few lawyers think like Hrishikesh Datar, the founder of Vakilsearch. More people want to replicate what Salve did! Seeking status rather than opportunity is ruining the future of many young lawyers.
We need to reinvent the legal profession.
And it all starts with humility. We may be the best in business, but that does not matter. We have done nothing compared to what is possible ahead. We may be at the hilltop, but we could reach for the stars. We need to focus on the headroom that we have for growth, and that is the lesson we must take from Satya Nadella.
What do you guys think? How are you investing in growth and new trends that would become the waves of tomorrow?
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This article is written by Gauraw Kumar, a student of BVP-New Law College, Pune. In this article, he covers ‘Attempt to commit Crime’ under Section 511 of the Indian Penal Code.
Introduction
‘Attempt’ in general meaning is said to be an effort to achieve tasks or activities. “An ‘Attempt to crime’ is when someone tries to commit a crime but fails. ‘Law of Attempt’ under IPC prevents offenders from attempting the offence again and helps keep society safer.
‘Attempt’ is not defined in the Indian Penal Code. Section 511 of the IPC only dealt with punishment for attempting to commit offences.
‘A’ makes an attempt to steal some valuable things by breaking a box and finds after opening the box, that there is nothing in it. In this case, there is no crime occurred but it is punishable under the Indian Penal Code because it is considered as an “Attempt to Commit a crime”.
What is an Attempt to Commit a Crime?
Attempt to commit a crime occurs when a person makes a proper mindset to do a criminal act and put a step forward for fulfilling by arranging the means and methods necessary for the commission of that crime but fail to do so.
A person with a proper mindset to commit a crime and also put a step forward to commit that crime by arranging the means and methods necessary for the commission but fails. Then we will say that the person has attempted to commit a crime.
Why is an Attempt to Commit a Crime Punishable?
An attempt to commit a crime is a crime under the Indian Penal Code. Every attempt, falls short of success must create a threat in the mind of people which by itself is an injury and the moral guilt of the offender is the same as if he had succeeded. According to Section 511 of the IPC, only half of the punishment is awarded because the injury is not as great as if that crime had been committed.
An Attempt to Commit a Crime – An Inchoate Crime?
The term “inchoate” means “undeveloped”, “just begun”, “incipient”, “in an initial or early stage”.
Inchoate offences cannot be understood in isolation and must be read in conjunction with substantive offences. A characteristic feature of these offences is that they are committed even if the substantive offence does not reach a stage of completion and no consequence ensues.
Thus, if the offence of crime has not been completed, even then a person can be guilty of an attempt to commit a crime.
Actus reus and mens rea are essentials for a commission of any crime.
Actus reus: Action or conduct which is an element of a crime,
Mens rea: The intention or knowledge of wrongdoing that constitutes part of a crime.
Here, actus reus to commit a crime is not completed but mens rea to commit the same crime is completed in an attempt and therefore attempt itself would be said to have been committed at this stage.
However, some scholars disagree with the usage of the term “inchoate” because according to them, offences like a conspiracy, attempt, and incitement are complete in themselves although they form steps in the process of reaching an end, that is Actual commission.
The Indian Penal Code 1860 and the Law of Attempt
The word attempt is not defined in IPC but there are some cases in which the Supreme Court has tried to clear the concept of attempt.
In the case of Koppula Venkata Rao vs State of A.P. the Supreme Court has said that ‘Attempt’ should be taken as ordinary meaning. The ordinary meaning of ‘Attempt’ to commit an offence is an act or series of acts which leads inevitably to the commission of the offence unless something which the doer of the act neither foresaw not intended happens to prevent this.
Section 511 of IPC deals with “Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonments”.
This section deals with the one-half of imprisonment for life or one-half of fine as provided for offences or both.
There are four stages in the commission of an offence:
intention to commit an offence;
preparation to commit an offence;
attempt to commit an offence; and
the actual commission of the offence.
Intention: Everyone cannot prove malice by looking at the brains of criminals. It is a psychological factor. It is impossible to know exactly the intention of a person. However, the acts of people and the context in which they act are often used to clearly indicate the intention of a person. So, it is not punishable.
But there are some exceptions in which ‘Intention to commit a crime’ are punishable. These exceptions are:
2. Preparation: Preparation means ‘to arrange the means or measure for intending criminal act’. It is difficult to prove that the preparation was made for committing an offence.
For example: ‘A’ buys a knife for the purpose of killing ‘B’ but after some time, his intention to kill ‘B’ has changed and he used that knife in the kitchen. In this way, we can not be held liable for arranging means and measure for murder. So, mere preparation is not punishable under IPC.
But there are some exceptions in which mere preparation is punishable in IPC:
Attempt: Attempts to commit a crime are basically a positive step toward committing the contemplated crime after preparations have been made. The trail cannot be cancelled. Once an attempt is made, the perpetrator cannot change his/her mind and return to its original state without committing a crime.
Commission of Crime: The actual commission of the offence leads to criminal liability. If the accused succeeds in his attempt, the offence is accomplished. If he missed then it is considered as an attempt.
“If ‘A’ shoots ‘B’ by pistol to kill him. If ‘B’ dies, then ‘A’ is liable for murder. If ‘B’ is injured, then ‘A’ is liable for Attempt to murder”.
“If ‘A’ makes an attempt to pick the pocket of ‘Z’ by inserting his hand into Z’s pocket. ‘A’ fails in the attempt in reason of Z’s having nothing in his pocket. But ‘A’ is guilty under Section 511 of the ‘Indian Penal Code’ because he has attempted to commit the offence by putting a positive step towards the commission of the offence.
An Attempt to Commit all Offence: Approach of the Indian Penal Code 1860
There are four different ways to deal with an offence in the Indian penal code:
Attempt to commit offence and commission of the same offence, both have separate punishment in Indian penal code e.g. Section 302 dealt with punishment of murder and Section 307 dealt with an attempt to murder.
Section 309 dealt with punishment of attempt to commit suicide.
There are some cases where no specific provisions are made regarding an attempt. Section 511 of the IPC deals with such type of cases, which provided that accused shall be punished with ½ of the longest term of imprisonment mentioned for the offence or with fine mentioned for offence or both.
In this case, the Supreme Court has described essential elements of ‘Attempt’ as follows:
i) Accused has an intention or means rea to commit the intended offence.
ii) He has taken a step forward (that is an act or step which was more than preparatory to the commission of the intended offence towards the commission of the contemplated offence).
iii) He failed to commit that intended offence by any reason.
When does Preparation end and Attempt Begin?
In Aman Kumar v State of Haryana, the Supreme Court held that the word ‘Attempt’ is to be used in its ordinary meaning. There is a difference between intention to commit offence and preparation. Attempt begins and preparation ends. It means when any step is taken towards committing that offence is considered as ends of preparation and begins of attempt.
Tests for Determining Whether an Act Amounts to a Mere Preparation or an Attempt to Commit an Offence
At what stage an act or series of acts is done toward the commission of act intended would be an attempt to commit an offence. Some principles have been evolved to solve that issue:
(a) The Proximity Rule: Proximity in Relation to Time and Action or to Intention?
The Proximity test examined how much the defendant close to completing that offence. Measured difference is the distance between preparation for the offence and successfully completion of that offence. In the case of Commonwealth v. Hamel, it was held that the proximity rule amount left to be done, not what has already been done, that is analyzed.
(b) The Doctrine of Locus Poenitentiae
It deals with those cases in which an individual made preparation to commit the crime but changes his mind at the end, thereby pulling out at the last instant. Such intentional withdrawal prior to the commission or attempt to commit the act will be termed as mere preparation for the commission of the crime and no legal liability will be imposed.
(c) The Equivocality Test
‘Equivocality Test’ is used to differentiate between preparation and attempt in a criminal case. When a person’s conduct, in itself, shows that the person actually intends to carry out a crime without reasonable doubt, then the conduct is a criminal attempt to commit that crime.
An act is proximate if it indicates beyond reasonable doubts what is the end towards which is directed. The Act to commit a specific crime is constituted when an accused person does an act which is a step towards the commission of that crime and doing of such an act cannot reasonably be regarded as having another purpose than the commission of that specific crime.
(d) Attempting an Impossible Act
If a person attempts to commit a crime which is impossible, then also it will be punishable under the Indian Penal Code.
If a person attempts to kill someone by empty gun, or steal something from an empty pocket, or steal jewels from empty jewel box. Then it is considered as an impossible attempt of committing that crime but here intention to commit the crime is present and also a step is taken towards completion of that crime. Thus it is considered as ‘attempt to crime’ under Section 511 of the IPC.
Conclusion
Actual commission of the offence is not important to prove anyone guilty. Anyone can also be guilty of mere commission or attempt to an offence under Section 511 of the IPC. There are three essential for the attempt to the offence. The initial stage is to prepare a proper mindset for the offence. Secondly, proceed a step forward toward the commission of that offence. Lastly, fails to commit that intended offence.
Intention to kill someone by an empty gun is not a crime but it is satisfying all the essentials of an attempt of crime. So, this is punishable under Section 511 of the IPC.
There are some principles for determining whether an Act amounts to a mere preparation or an attempt to commit an offence.
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The article has been written by Ayush Verma, 2nd year student at Dr. Ram Manohar Lohiya National Law University. This article provides an overview of Article 102 of the TFEU.
Introduction
Article 102 of the Treaty on the Functioning of the European Union {TFEU} (formerly under Article 82 of the European Community Treaty (EC)) prohibits dominant undertakings from abusing their position within an internal market or in a substantial part of it, as incompatible with the internal market in so far as it affects trade between member states. Such abuse may consist of:
Imposing unfair purchase or selling prices, or unfair trade conditions, directly or indirectly.
Restraining production, markets or technical development which might be detrimental to the customers.
Discriminating between the trade parties by placing dissimilar conditions to equivalent transactions.
Making the original contract subject to acceptance of supplementary obligations which by their nature or commercial usage, have no connection with the subject of such contracts.
Commission’s Guidance on Article 102 Enforcement Priorities
Adoption of the Commission’s Guidance on Article 102 Enforcement Priorities
It is important to understand the context in which reforms have been brought in the EU Competition law. Historically, it has been criticized because it followed a form-based approach, placing too much reliance on the form of the conduct rather than its effects.
Adoption of effects approach in Discussion paper on exclusionary abuses
The modernizing of the Article 102 can be traced back to the speech of the Commissioner Kroes at the Fordham International Antitrust Conference in 2005, where she said that “market power should be assessed on the effects it creates on the market, acknowledging the exceptions such as per se illegality of horizontal price-fixing. […] Article 82 EC (now 102 TFEU) should focus on realistic problems in competition; behaviors that have restrictive effects on the market, and harm consumers.” Her speech was followed in a discussion paper on Article 82 EC, in which the effects-based approach was taken.
There was a lot of uncertainty regarding the new approach in modernizing Article 102, which was led by a series of judgments based on the old formalistic approach. To cater to all this, Commission in 2009, therefore, adopted the guidance on enforcement priorities.
A The undertakings that are talked about in Article 102 are those who have a ‘dominant position’ in the market or where two or more undertakings are ‘collectively dominant’. The European Court of Justice in the case of Hofner v Elser said that an “undertaking” includes any entity engaged in economic activity regardless of the legal status and the way it is financed.
Effect on Inter-State Trade
The concept of “Effect on trade” has been brought to give context to the law governing competition. The law applies to every agreement in the European Union that may affect trade between member states. However, it must be regarded that the abuse may have a direct or indirect influence on the trade between member states, and it must be decided on the objective factors.
Dominant Position
The Court of Justice in United Brands v Commikssion defined the dominant position as a position of economic strength enjoyed by an undertaking which gives it power to prevent effective competition in the relevant market, and to behave independently of its competitors, customers and consumers.
Actual competitors
Commission’s guidance provides that ‘market share’ actually determines the status of various undertakings active in the market. It further emphasizes that dominance is not likely if the undertaking’s share is below 40% in the relevant market. It also states that the time for which the larger market share is kept would be the deciding factor while considering the ‘dominant position’ by the commission.
Relevance of market shares
The Court of Justice’s judgement in Hoffmann-La Roche v Commission.
In this case, the court held that the dominant position does not prevent such competition, where there is a monopoly or quasi-monopoly, which is profiting but is effectively promoting competition unless it is a detriment to it. Also, it does not apply where there is an oligopolistic market, in which undertakings having market power can react to each other’s conduct in a similar way.
The AKZO presumption of dominance
In this case, the court was of the view that an undertaking having a market share larger than 50% would be considered to be in a dominant position, leaving exceptional circumstances.
Findings of dominance below a market share of 50 per cent
In the case of United Brands, the court considered even 41% to 45% to be a large market share, to ascertain the dominant position. In the case of Hoffman-La Roche, court acknowledged that presence of 40% market share is reflective of dominance when considered with other factors.
Paragraph 16 of the Commission’s guidance says that competition is a dynamic process and undertakings can not be restrained solely based on the existing market situation/shares. Expansion of the existing undertakings and the entry of potential competitors, including the threat of such expansion or entry is also relevant. An undertaking may be restrained from increasing prices if such expansion of entry is likely, timely and sufficient.
To ascertain such likelihood, the commission must look if such expansion or entry is profitable to the competitor or entrant, and should take into account barriers to such expansion or entry, the likely reactions of the allegedly dominant undertakings and the risks and costs of failure.
For considering ‘timely’, such expansion or entry must be ‘sufficiently swift’ to deter the exercise of dominance.
For ‘sufficiently’, it must be of such magnitude to deter the dominant undertaking from increasing prices, and not to be a small scale entry.
Other barriers to entry or expansion
Legal barriers
In addition to the above barriers, undertakings might also impose some legal barriers in the form of tariffs and quotas that may be imposed by the undertakings.
Economic advantages
There are economic advantages like economies of scale, ‘privileged’ access to inputs, resources, and technologies, or an established distribution or sales network that are enjoyed by dominant undertakings.
Costs and network effects
Barriers also include costs and networks that restrict consumers from switching suppliers.
Conduct
The conduct of the undertakings may also contribute to the barriers to expansion or entry. That conduct may be in the form of the investments that undertaking has made which would have to be matched by the competitors or entrants and where it has made long term agreements with its customers that may have a foreclosing effect.
Countervailing buyer power
It supports the view that consumers also have the power to restrict competition by exercising their bargaining power. Such power may be the result of magnitude of customers that are involved, their ability to switch to other suppliers, to promote the entry of new competitors or to threaten to do so.
This power when exercised by the high magnitude of customers results in restraining the undertaking from increasing prices. Also, if such restraint is only limited to a particular segment of the consumer, then that power would not be considered to have exercised an effective restraint.
The degree of market power and super-dominance
Assessing the market power that the dominant undertaking holds becomes important for the application of Article 102 of the functioning of the EU. Commission has asked that the three factors need to be considered while assessing the market power.
Constraints imposed by supplies from, and the position of the existing competitors.
Constraints imposed by the threat or expansion or entry by the actual or potential competitors.
Constraints imposed by the bargaining strength of the customers.
There might be some companies that have ‘super dominance’. Though there is no particular legal definition as to what ‘super dominance’ is, but it is generally taken where an undertaking’s position is so strong in a given market that any residual competition is, at best, marginal. It is on this basis that some have suggested that such a company (one with a very high market share and evident economic strength) has an even greater ‘responsibility’ to the market.
Substantial Part of the Internal Market
The dominant position of an undertaking must be held within a substantial part of the internal market. This is the acknowledgement of geographical scope for finding dominance. To determine whether a territory amounts to a “substantial part of the internal market”, the volume of consumption and production of the said product of an undertaking need to be assessed, in addition to this, habits and economic opportunities of the vendors and buyers must also be considered.
Small Firms and Narrow Market
Small firms
A small firm has less number of employees and there is a limited flow of finances and materials than a regular-sized corporation.
Narrow market
A market where there is less number of buyers and sellers is called a narrow market. Here the price is highly volatile and low liquidity of assets because fewer transactions take place.
Abuse
Introduction
Any conduct of an undertaking that is not based on merits and impedes effective competition would qualify as abuse.
Three preliminary points
The ‘special responsibility’ of dominant firms
The dominant undertaking has a ‘special responsibility’ not to undermine undistorted competition in the common market. The dominant undertaking should not engage in such pricing practices that makes it earn more profit than it would have earned if there were effective competition.
Article 102 contains non-exhaustive list of what amounts to abuse
There is no legal definition of abuse in the legislation but Article 102 contains a non-exhaustive list of examples in clauses (a) to (d) which can be inferred as abuse.
Avoiding false positives and false negatives
The concept of false positives and false negatives is aimed at promoting accuracy while determining abuse.
Avoiding false positives/ Type 1 errors – this says that the abuse should not be determined in a way that it restricts the dominant undertakings from competing effectively for the benefit of consumers, even if it harms the competitors.
Avoiding false negatives/ Type 2 errors – this says that the abuse should allow dominant undertakings to involve in anti-competitive behaviour that may harm consumers.
What is the purpose of Article 102?
Protection of competitors or protection of competition?
It is an area of critique because the provision protects the competitors, including those who are inefficient, rather than the competition. This is based on the view that Article 102 subjects dominant firms to a handicap; that competitive acts such as a reduction in prices and bundling of products that are not allowed to the dominant firms are permitted to the firms which are not dominant. Rationale behind this is that the firms which are already dominant should give way for small and inefficient firms.
Article 102 protects competition; competition is for the benefit of the consumers
While applying Article 102 to the conduct of the dominant undertakings, the Commission looks on those conducts that might prove harmful to the consumers. Consumers benefit from a market where there are low prices, better quality and ample choices of goods available to them. The commission, therefore, checks whether a market is functioning properly, and consumers are benefiting from efficiency and productivity, which is a result of effective competition between undertakings. Hence, the commission needs to ensure the safeguarding of the internal market and the competitive process.
Jurisprudence on the meaning of abuse
Hoffmann-La Roche v Commission
In this case, the court said that the abuse is an objective concept where an undertaking engages in such conduct to influence the market structure, due to which the degree of competition is weakened and the growth of the competition is affected, by using methods that deviate from normal.
Competition on the merits
Conduct which is not based on the merits is abusive conduct, and the undertaking is prohibited to involve in such practices. Commission’s guidance gives an example of merits as “lower prices, better quality and wider choices of new goods and services.” A competition that is not based on merits is likely to cause harm to customers.
Different approaches under Article 102
Are per se rules present under Article 102?
Conduct that has an anti-competitive object is presumed as having an anti-competitive effect. Finding a restriction of competition by the object has, therefore, great consequences as the burden of showing a concrete anti-competitive effect is removed. An important question is, therefore, whether this equals as per se abuse. This has been discussed in the case laws given below.
In the case of Intel v Commission, the General Court held that the conditional rebates on a customer in which requirements are obtained from a dominant firm are per se abuses of dominance in contravention with Article 102 TFEU and whether such rebates have anti-competitive effect or not should not be considered by the commission while finding of infringement.
However, in the case of GlaxoSmithKline Services and others, where though the European Court of Justice did not explicitly address it but General Advocate addressed the issue. He was of the opinion that it is not possible to have a per se rule since it does not conform well with Article 102 TEFU even when the circumstances are such that the intent and anti-competitive effect is clear.
Effects analysis or effects-based approach
An effect analysis focuses on assessing outcome rather than practices, assessing legitimacy by reference to consumer impact, preference of rule of reason over per se and preference for limited intervention targeting exclusionary conduct (barriers to entry).
In the case of Konkurrensverket v. Telia Sonera, the court laid down the principle of effects analysis, that while determining the anti-competitive behaviour, the effect of the conduct is to be determined rather than the degree of dominance being enjoyed by the firm.
The per se view taken by the General Court in the Intel v Commission was rejected by the European Court of Justice (ECJ) when Intel appealed against the decision of the General Court. Here, ECJ welcomed the “effects analysis” for all types of rebates. The court said that where the dominant undertaking has submitted that its conduct was not capable of excluding competitors, the commission must look out for the effect of such conduct.
De minimis doctrine under Article 102
The doctrine of de minimis means “the law does not concern itself with trifles.” It warns the parties the parties should not come to the court with matters that are too immaterial for the court to consider.
There have been various case laws that have dealt with the issue of de minimis doctrine. In the case of Franz Völk v S.P.R.L, the court acknowledged the de minimis rule and held that agreements having ‘insignificant effects on the market’ are not covered under Article 101 TFEU. Considering this, it can be inferred that this rule also falls out of Article 102.
However, in the case of Post Danmark A/S v Konkurrencerådet, the court said that it is not justified to set a de minimis threshold in the context of Article 102.
Similarly, in the case of the Intel, where the Intel argued that its conduct was only concerned with a small part of the market, the court held that the de minimis threshold is not applicable.
Types of abuse
There are generally three types of abuse: Exploitative, Exclusionary and Single market abuse.
Exploitative abuse
These abuses are concerned with exploiting the consumers directly by charging excess prices or other unfair trading conditions. The dominant firms may also use their market power by extracting rents higher than that are normally achievable.
These abuses also involve discriminating between customers by charging different prices or dissimilar terms to similarly placed customers, where there is no justification for such difference in prices. They may also use a tying arrangement where customers are compelled to buy a secondary product with the primary one and that secondary product is charged at excessive prices.
Exclusionary abuses
Exclusionary abuses are those abuses where the conduct of dominant undertakings prevents competitors from entering into the market, or limits profiting of the existing competitors which as a result harms the customers.
These abuses are considered as more detrimental as they can undermine the competition over a long period by limiting the new or small competitors to challenge the dominant firm which in turn reduces the choices available to the customers.
Continental Can v Commission
In this case, the court held that the abuses given in Article 102 TFEU are not exhaustive. It further held that abuse does not only cover direct harm that may be caused to effective competition but also includes indirect harm in the form of conduct that can adversely affect the market structure.
Causation
Following elements need to be there to cause exclusionary conduct within Article 102:
The conduct of the dominant undertaking must hamper or eliminate rivals’ access to supplies or the market.
The abusive conduct of the undertaking must cause the anti-competitive effects.
The anti-competitive effects must be reasonably likely.
The anti-competitive effects must be significant in creating or reinforcing market power.
Foreclosure
Market foreclosure is conducted by a dominant undertaking which may lead to anti-competitive effects. Conduct that may cause actual or potential competitors to lose profitability in the market, likely to hinder the existing competition in the market or inhibit the growth of such competition is said to have a disclosure effect, leading to an increase in prices.
Foreclosure can be of two types: Horizontal or Vertical foreclosure.
Horizontal foreclosure consists of non-price based exclusions like single branding and tying, and price based exclusions like mixed bundling, loyalty rebates, and predatory pricing. Here the dominant company attempts to exclude, or marginalize its rivals by preventing the customers to access their market.
Also, ‘upstream’ and ‘downstream’ market is used to distinguish between two different levels, which is based on the concept that where a consumer is more closer to the market, the more ‘downstream’ it is.
In upstream foreclosure, a downstream buyer is denied access to an upstream supplier and in downstream foreclosure, an upstream supplier is denied access to downstream buyers.
Vertical foreclosure consists of non-price based exclusions like refusal to supply, and price based exclusions like margin squeeze.
Abuse in different markets
Michelin v Commission
Here the court said that the dominant position of an undertaking is not an incrimination in itself, irrespective of the reason for such a position, the undertaking has a “special responsibility” that its conduct must not impair genuine undistorted competition in the market.
Commercial Solvents
This case dealt with the refusal to supply. The producer in order to increase the supply of its finished products (derivatives) refused to supply the raw materials for making that product, to certain parties to facilitate its access in the derivatives market.
The court said that since the party is in a dominant position in case of the supply of raw materials and therefore able to control its supply to manufacturers, cannot just because it itself wants to start manufacturing those derivatives, eliminate other principal manufacturers of those derivatives.
De Post-La Poste
In this case, De post-La Poste had abused their dominant position by operating a tying policy, the undertaking having a statutory monopoly over general letter mail service made it subject to the acceptance of a supplementary contract in which they covered a new business to business service. This policy of tying one service to the other was considered as an abuse.
Telemarketing
In this case, the European Court of Justice held that abuse is committed where a dominant undertaking, without any objective necessity, reserved for itself an ancillary activity which might be carried out by another undertaking in a neighbouring but separate market, with the possibility of eliminating competition from such undertaking.
Sealink/B&I – Holyhead: Interim Measures
In this case, the court was of the view that an undertaking which is dominant in providing an essential facility and itself uses that facility, and refuses other companies to use that facility, without any objective justification, and grants such access on less favourable terms than it gives to itself, infringes Article 102.
British Gypsum v Commission
In this case, British Gypsum had committed abuse on British and Irish plasterboard makers by offering conditional rebates upon the customers to buy exclusively from the British Gypsum. Therefore such conditional rebates were taken as abuse.
Tetra Pak II
Here the Court of First instance noticed that if a dominant undertaking ties its customers with an exclusive supply obligation, it denies the customer to freely choose his supplier and deprives other manufacturers to access the market, and this constitutes abuse.
Examples of exclusionary abuses
Predatory Pricing: It is a technique used by dominant undertakings where they decrease the prices for a short term to attract consumers towards them, due to which small firms cannot recover their costs and decide to leave the market. Once the dominant undertakings get successful in eliminating the existing or potential competitors from the market, they can charge supra-competitive prices and may degrade the offerings to get profits.
Refusal to Supply: Here the dominant undertakings may refuse to supply to the consumers, certain essential inputs, IP or facility to eliminate all competition on the part of the consumer. The practice may be used to force a retailer from discounting the product or to sell a product to a specific class only.
Margin Squeeze: An undertaking may supply inputs to those wholesale customers who are also retail competitors, to eliminate competition from the retail (downstream) market. In this way, competitors ‘squeezes’ the competition from the downstream market by charging high prices to the wholesalers or low retail prices or both.
Loyalty Rebates: This is a way of encouraging the customers for purchasing the products from a particular firm by giving a refund if they buy a threshold quantity of products for a particular period. In this way, customers instead of splitting their orders buy products from a single firm only.
Tying: It is defined in Article 102(d) TFEU as making the parties accept supplementary obligations along with the original agreement, which by their nature or commercial usage have no connection with such contracts. It is generally tying of one product to the other which restricts the consumer’s free choice.
Bundling: It is somewhat similar to tying in a way that two products are sold in a single package at a discount. A consumer here is compelled to buy the entire package as a whole.
Exclusive Dealing Agreements: Here a customer is bound to purchase all the products of a particular type from a dominant firm thereby restricting to buy from any other supplier. A customer is therefore prohibited from having a similar agreement with a third party.
Abuse of intellectual property rights: In this, an undertaking uses its intellectual property rights in such a way that the entry of new competitors gets restricted, to strengthen their dominant position.
Single market abuse
These abuses are exercised by the dominant undertakings to prevent the flow of goods across member states. It is aimed at maintaining dominance in a particular member state by barring competitors from another state.
Defences
Objective necessity
Any conduct of the dominant undertaking may escape the prohibition under Article 102 TFEU if it can give an objective justification of its behaviour. The dominant undertaking needs to show that its conduct was necessary based on external factors such as health or safety concerns. On the basis of these factors, it needs to be shown that without such conduct, the concerned product cannot be produced.
Efficiencies
The undertaking need to show that the following conditions are fulfilled for efficiency defence:
That the conduct would lead to efficiencies. They may include improving production or distribution of goods, promoting economic or technological process or reducing the cost of production or other efficiencies.
That there is no other alternative to achieve the claimed efficiencies besides such conduct.
That their conduct has resulted in less harm to the consumers than they might otherwise have and the efficiencies brought outweighed the likely negative effects of the competition.
That effective competition is not eliminated by such conduct. This is a recognition of the fact that the rivalry between undertakings leads to economic efficiencies, including dynamic efficiencies in shaping innovation. In its absence, dominant undertakings will lack incentives to continue to create efficiency gains. Ultimately the protection of rivalry and competitive process is given priority over efficiency gains.
Abuse relating to proprietary rights
This is used as a defence where a dominant undertaking refuses access to its property or proprietary rights and may also involve refusing access to its intellectual property or physical property. A dominant firm may use this defence if it can show that the restriction was necessary for protection of competition.
Burden of proof
In the case of Microsoft v. Commission, the court held that the burden of proof lies on the dominant undertaking to give the objective justification of its conduct and to produce evidence and arguments to support such justification. However, the commission has to show the abuse of dominant position by the undertaking and that the justification given on the basis of evidence and arguments is not proper.
Consequences of Infringing Article 102
If the commission can establish that there is an abuse of dominant position by the undertakings, it has the authority to impose behavioral and structural remedies on such undertakings:
Behavioural remedies:
Asking the dominant firm to stop such abusive conduct and there may be a further requirement of positive action by the firm.
Imposing a fine on such firms for their abusive behaviour.
Structural remedies:
Depriving a business of its assets.
Mandating a breaking up of such business.
Public enforcement
In public enforcement, antitrust rules are made enforceable by the state authorities. They are vested with special powers and procedures, which they use to investigate the infringement.
Private enforcement
This type of enforcement is initiated by an individual, as a stand-alone or follow up action, for getting remedy against the infringement of Article 102.
Conclusion
It is now clear that Article 102 of the TFEU has been brought to prevent the abuse by the dominant undertakings. It is aimed at promoting effective competition in the market and for the benefit of customers.
This article has been written by Lakshmi. V. Pillai of 5th year pursuing B.A. LL.B from GLS Law College, Ahmedabad.
Introduction
Under the European Union law, in the Treaty on the Functioning of the European Union (TFEU) under the provisions of Article 102, the concept of Abuse of Dominance is laid down.
As per the EU law, a company/undertaking will not be considered as abusing its dominant position per se just because it is dominant in the market. There are precedents that layout the factors which are counted as an abuse of dominant position by the company.
The factors are as follows:
The undertaking using its dominance is acting independently.
And the independent act of the undertaking is adversely affecting the consumers and competitors.
By acting independently we understand that the undertaking is in such a position wherein it need not consider the consumers and competitors. As it carries a huge market share which gives it the liberty to act independently as per its need. And this independent act from the dominant adversely affects the competitors and consumers which results in the distortion of the fair competition in the market, which subsequently turns out to be ‘abuse of dominant position’.
While considering the Abuse of Dominant Position the points which need to be considered are:
The substantial market power of the undertaking;
The ability of the undertaking to control entry conditions;
And the degree of buyer power from the undertaker’s customers.
To assess whether the undertaking concerned is dominant or not, it is important to understand the relevant market. To determine the relevant market of the undertaking the product market and the geographic market are considered.
By product market, it means the availability of the substitute or the interchangeable product in the relevant product market to the consumer based on characteristics of the products or services, their prices and intended use. If there are no substitutes then that means the undertaking is enjoying the dominance in the market. This happens when the competitor does not have any substitute or a similar product to sell in the market. So if any other substitute is available then the consumer has an option to opt which cuts down the market share of the undertaking.
By geographic market, it means relevant geographic market comprises the area in which the conditions of competition for the supply of goods or provision of services or demand of goods or services are distinctly homogeneous and can be distinguished from the conditions prevailing in the neighbouring area. The factors which are considered under these criteria are regulatory trade barriers, local specification requirements, national procurement policies, adequate distribution facilities, transport costs, language, consumer preferences and need for secure or regular supplies or rapid after-sales services.
Another important factor that is considered while determining the dominance of the undertaking is the market shares. Under the EU law if the company has more than 40% of market share, then it is considered to be a preliminary indication of dominance.
As per Article 102 of the TFEU, under the following grounds the abuse can be determined:
(a) when there is direct or indirect imposing unfair purchase or selling prices or other unfair trading conditions to the product in the market;
(b) limiting production, markets or technical development to the prejudice of consumers by the dominant undertaking;
(c) applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage;
(d) making the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts.
By reading Article 102 of the TEFU the Abuse of Dominance can be categorized into two major practices:
Pricing practices:
This practice is performed by the undertaking by controlling the pricing of the products and services in the relevant market abusing its dominant position in the market. Article 102 (a) of the TFEU specifically deals with the pricing practice.
Non-pricing practices:
These practices do not have a direct impact on the pricing of the products in the relevant market however, the dominant undertaking performs such acts that can affect the consumer and competitor directly or indirectly. By putting restrictions on the dealings of the seller, tying products, by putting conditions on the seller to refuse the supply of the product to particular consumers or market. The sub-clauses (b), (c) and (d) of Article 102 of the TFEU deals with the non-pricing practices.
Exceptions to certain acts under the TFEU
However, it is to be noted the TFEU provides some exceptions which will not be considered as an act of Abuse of Dominant Position. The burden of proof is on the defendant in such cases.
“Any agreement or category of agreements between undertakings, any decision or category of decisions by associations of undertakings and any concerted practice or category of concerted practices:
which contributes to improving the production or distribution of goods or;
to promote technical or economic progress;
While allowing consumers a fair share of the resulting benefit, and which does not:
impose on the undertakings concerned restrictions which are not indispensable to the attainment of these objectives;
afford such undertakings the possibility of eliminating competition in respect of a substantial part of the products in question”.
UK Law
Till the time the United Kingdom is a part of the European Union, the courts of the UK need to consider its Competition Act with parlance to the EU Treaty.
Section 18 (Chapter II Prohibition) of the Competition Act 1998 states that ‘any conduct on the part of one or more undertakings which amounts to the abuse of a dominant position in a market is prohibited if it may affect trade within the United Kingdom’.
However, there are two major differences between EU and UK law:
Under UK law, no cross border effect needs to be proven;
There is no minimum threshold mentioned under UK law.
To check and regulate the anti-competitive activities in the UK, there is a non-ministerial government department- Competition and Market Authority (CMA). It is responsible for strengthening fair competition in the business/market of the UK. The CMA is the successor of the Competition Commission and the Office of Fair Trading and it started fully operating on 1 April 2014.
Exclusive Dealing Agreements
In Exclusive Dealing Agreements, the customers are tied up in a contractual obligation wherein they are required to purchase specific goods or services exclusively from a particular supplier for a particular period of time. The time duration can vary from case to case. This kind of obligation prevents customers from exploring other suppliers. And this results in the creation of barriers to the competitors of the undertaking to enter into the market and provide service to the customers.
As per paragraph 32 of the Guidance of the Commission, the ‘Exclusive Dealing Agreement’ is defined as “A dominant undertaking may try to foreclose its competitors by hindering them from selling to customers through the use of exclusive purchasing obligations or rebates, together referred to as exclusive dealing. This section sets out the circumstances which are most likely to prompt intervention by the Commission in respect of exclusive dealing arrangements entered into by dominant undertakings.”
Hoffmann-LaRoche v Commission of the European Communities– It is a landmark case which laid down the principles of Abuse of Dominant Position. A dominant undertaking said to be abusing its dominant position “when that ties purchases, even if does so at their request, by an obligation or promise on their part to obtain all or most of their requirements exclusively from the said undertaking.”
EU Law
The application of Article 102 TFEU to exclusive dealing agreements.
In the EU law under Article 102 (2) (c) of the TFEU deals particularly about exclusive dealing agreements.
Meaning of exclusivity
The exclusive dealing agreements can be of two types:
1) Exclusive supply obligation– In this type of obligation, the supplier is restricted from supplying the service or goods to any other party other than the specific downstream customers.
2) Exclusive purchasing obligation– In this, the purchaser/customer is restricted from acquiring the goods or services other than a specific supplier.
The perfect example for exclusive purchasing obligation is the Intel v Commission case, wherein the General Court held that the requirement on the part of the customer to buy 80% of CPU’’s requirements from the Intel results into the agreement which is analogous to the abuse of dominant position.
However, there are some factors to which we can look into wherein we can understand what can lead to an exclusive dealing agreement. The elements for exclusive dealing are well established and comparable to other abuse of dominance cases:
Market power by at least one party to the arrangement;
Conduct that forecloses rivals from the opportunity to compete; and
The absence of overriding legitimate business justification.
As per Article 102 of EU law, market share is always an important determining factor. But in various cases of EU courts, the thresholds of determining the dominance of the company varied which certainly make confusion in the minds of the people. Except in some cases, the other factor which carries prudent weight is foreclosing the opportunity to the entrants. By understanding various cases adjudicated by the EU courts the points which are essential to consider an act as an abuse of dominant position under the exclusive dealing agreement will be comprehensible.
Judgments in the EU Courts
Konkurrensverket v TeliaSonera Sverige[2011]
Konkurrensverket v TeliaSonera Sverige is the first case in which the Stockholm District Court penalized the highest fine of a total amount of SEK 144 million due to a violation of Chapter 2, Section 7 of the Swedish Competition Act and Article 102 TFEU respectively. In the year 2004, the Swedish Competition Authority (Competition Authority) brought an action against TeliaSonera, a telecom operator. The District Court found that TeliaSonera had abused its dominant position by a margin squeeze by offering wholesale and end-user services for broadband connections at prices where the margin between the wholesale price and the price to households was insufficient to cover TeliaSonera’s costs for offering broadband to households. The price squeeze had occurred on the Swedish market during the period April 2000 through to January 2003.
According to the District Court, TeliaSonera had, in several cases, applied higher prices towards competitors than private customers. The marginal squeeze resulted in no entry of the new entrants and forced them to make their prices extremely less which them not able to do active marketing.
However on 30 January 2009, the Court stayed the proceedings and referred the matter to the ECJ. The ECJ answered the referred questions through a preliminary ruling on 17 February 2011.
The ECJ stated that in the absence of any objective justification, the fact that a vertically integrated undertaking, enjoying a dominant position on the wholesale market for ADSL input services, applies a pricing practice of such a kind that the spread between the prices applied on that market and those applied in the retail market for broadband connection services to end-users, was not sufficient to cover the specific costs which that undertaking must incur in order to gain access to that retail market, may constitute an abuse within the meaning of Article 102 TFEU.
Post Danmark A/S v Konkurrencerådet [2012]
In Post Danmark case the CJEU ruled that: “Article 82 EC [now Article 102 TFEU] must be interpreted as meaning that a policy by which a dominant undertaking charges low prices to certain major customers of a competitor may not be considered to amount to an exclusionary abuse merely because the price that undertaking charges one of those customers is lower than the average total costs attributed to the activity concerned but higher than the average incremental costs pertaining to that activity, as estimated in the procedure giving rise to the case in the main proceedings.”
Therefore, if the dominant firm charges prices below average total cost (ATC) but above average variable cost (AVC) to attract a rival’s customers is not in itself an infringement, even if the discount is selectively made to target rivals’ customers. To constitute abuse, the selective price-cutting must be shown to be part of a scheme to dominate and to be capable of having that effect, rather than merely reflecting competition for customers.
The Commission’s approach to exclusive purchasing agreements
As from the above cases, we can understand that the commission majorly focuses on one aspect, i.e. whether the act of reducing prices or having a contractual obligation with customers is hindering the entrance of the competitors or new entrants in the market. If the dominant company is making barrier through various strategies which distort the fair competition in the market then that will ultimately be considered as an abuse of dominance.
However, in the case of TeliaSonera the commission had laid down a test called “efficient competitor-test” as per paragraph 40 of the case the court observed that- “Where an undertaking introduces a pricing policy intended to drive from the market competitors who are perhaps as efficient as that dominant undertaking but who, because of their smaller financial resources, are incapable of withstanding the competition waged against them, that undertaking is, accordingly, abusing its dominant position.”
There is a methodology laid down by the commission to determine whether the dominant undertaking is abusing its position or not.
The method is as follows:
Firstly, determine the margin of the input price and the price of the derived product of the dominant undertaking.
Secondly, compare the undertakings own cost of processing the input product to the derived product. If the margin of the second outcome is lower than the first one then that means there is an abuse of dominance.
Article 102 applies to de facto as well as to contractual exclusivity
Article 102 applies to de facto as well as contractual exclusivity. The de facto exclusivity results when there is no stipulation regarding exclusivity upfront, however, the act of the undertaking is as such which results in exclusivity.
In the case of Van Den Bergh Foods, the commission noted that Van Den Berg is exclusively providing free freezers to the retailers with a condition that they will store any other ice cream other than Van De Berg’s ice cream. the result of this practice was de facto the Van Den Berg able to close the outlets for other competitors and took control of all retailer outlets. Under para 33 of the Guidance on Article 102 Enforcement Priorities- ‘stocking requirements’ are considered as a practice which can lead to anti-competitive behaviour.
Is there an objective justification for a long-term agreement?
In recent cases like Distrigaz case (2007) andEDF case (2010), long-term contracts were considered as harming the fair competition in the market. In both cases the firms were having the public monopoly in the market, the EDF had a monopoly in the supply of electricity to large industrial customers and Distrigaz had a monopoly in the supply of gas to large customers. The Commission has taken a hard stand regarding dominant firms and their long term contracts. the term of the contracts was varying from 8-10 years. The firms need to prove that the long term contracts are not deterring the rivals from entering the market. The main concern for the commission was long term contracts between energy companies and their customers which was leading to customer foreclosure. Whether exclusive contracts are foreclosing often presents an interesting issue. Courts and regulators typically look to some combination of the percentage of the available customer base to whom the contracts applied and their duration.
There is no as such objective justification, as a company applying dominance in the market varies from case to case. The important fact is that the dominant power of the company affected the competitor.
The potential for harm to competition from exclusive contracts increases with:
(1) The length of the contract term;
(2) The more outlets or sources covered; and
(3) The fewer alternative outlets or sources not covered.
The Commission also provides Guidelines on exclusive dealing which states that ‘in general, the longer the duration of the obligation, the greater the likely foreclosure effect’.
The Commission’s Guidelines on Vertical Restraints give a little more specific time duration under which the act of the dominant can be considered as an Abuse of Dominant position. The Guideline is as follows “single branding obligations exceeding five years are for most types of investments not considered necessary to achieve the claimed efficiencies or the efficiencies are not sufficient to outweigh their foreclosure effect’. However, it is important to understand that the quote points are rebuttable presumption and the burden of proof is on the respondents to prove that they do not come under the ambit of anti-competitive behaviour.
UK Law
In the matter of exclusive dealing agreement there are a series of cases which we can refer to:
The Arriva v Luton Airport case, Luton Airport’s decision to grant National Express exclusive right to provide bus service from the airport to various London locations for seven years. It was also combined with a right to refuse new routes. This was held to anti-competitive by the High Court in 2014.
A similar case was there in the Court of Appeal in the matter of National Grid, the provisions regarding meter readers that lasted for many years, adding charges for early termination and a clause which required to maintain a proportion of National Grid’s meters at the end of each year. The terms by National Grid in their agreements were considered as exclusionary by the commission.
There was another case of EWS Coal Haulage Contracts in which the Office of Rail Regulation (ORR) noticed that the EWS Coal Haulage was entering into long term agreement which is approximately 10 years with the owners of power stations. It has been also noted that in certain cases they are supplying all of their coal rail haulages to the parties. Such agreements were also considered as anti-competitive agreements.
The case concerning exclusivity through commitments has also been looked after by the CMA.
In Western Isle Road Fuels they made a five-year exclusive deal agreement with the customers which is made terminable on three months’ notice, this was considered as an anti-competitive agreement.
Tying
Terminology and illustrations of tying
As per the Commission’s Guidelines, the tying “refers to situations where customers that purchase one product (the tying product) are required also to purchase another product from the dominant undertaking (the tied product).”
The Tying can take place on two basis:
Technical basis
It occurs when the tying product is designed in such a way that it only works properly with the tied product (and not with the alternatives offered by competitors).
Contractual basis
It occurs when the customer who purchases the tying product undertakes also to purchase the tied product (and not the alternatives offered by competitors).
The term bundling is usually used interchangeably with the term tying, however, it is important to understand that in general terms bundling is considered as legal with certain conditions but tying is illegal. Bundling basically “refers to the way products are offered and priced by the dominant undertaking.”Another important thing to note is Indian law differentiates between tying and bundling but the EU law, UK law, and US law does not differentiate the two terms.
In bundling is also there are two types:
Pure bundling– In the case of pure bundling the products are only sold jointly in fixed proportions.
Mixed bundling– In the case of mixed bundling, often referred to as a multi-product rebate, the products are also made available separately, but the sum of the prices, when sold separately, is higher than the bundled price.
This practice is performed to provide customers with better service at less cost. A dominant undertaking may try to foreclose its competitors by tying or bundling. Product bundling may not only squeeze existing competitors out of the market but also deter potential competitors from entering the market.
For example: If an IT manufacturer bundled the charger with the laptop then it is not coercing the buyer to buy anything unrelated to the product. However, if a webcam is tied with the laptop, that coerces the buyer to take the product which is something not needed to run a laptop. Therefore such agreements can be considered as anti-competitive.
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Policy considerations: arguments for and against tying
The reason behind the objection of the tying practice is basically because leveraging its position as a dominant firm in relation to the tying product can increase their sales and therefore they can extend their market power. and this practice can be an example of horizontal foreclosure. This is so powerful that earlier in the US law it was held to be per se illegal.
However, over time this kind of approach was subjected to sustained criticism. The ‘Chicago School’ of economists was one of them who made the central thrust for this criticism. Their viewpoint was that a monopoly can make a profit on product A for a particular duration but it can not extend the same leverage to product B after the completion of the duration. This insight was quite persuasive and thereby the US law subjected this anti-competitive behaviour under the ‘rule of reason’, which requires the commission to probe into the matter, giving full analysis to the behaviour of the dominant considering likelihood of competitive harm.
So, today tying is not per se considered as illegal. Rather it is considered as a normal feature of commercial life, wherein things are tie-up so that customers can get the benefit of the product wholly.
The benefits of tying are as follows:
1) By tying the components are integrated into one product and this leads to significant economic efficiency to the firm.
2) It results in lowering the cost:
the product;
the production;
the distribution.
3) It improves the quality of the product.
4) It can increase the efficiency of the product.
EU Law
Under the EU law Article 101 (1) (e) and Article 102 (2) (d) deals with the tie-in arrangement agreements. Article 101 applies to vertical agreements (para 214-222), however, Article 102 is based on those tie-in arrangements which is created by Dominant undertaking. Article 102 (2) (d) states tie-in arrangements as follows “making the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts.”
However, in various cases, the Court of Justice held that if the act does not precisely come under the ambit of Article 102(2) (d) then it can be considered under Article 102. In the case ofTetra Pak v. Commission, the court observed that there was an unlawful tie in which products were connected by commercial usage and such a connection is not expressly mentioned in the phrasing of Article 102(2)(d), still that was considered to be a part of tying under abuse of dominance (para 37 of the judgment). However, the same observation was made by the General Court in the case of Microsoft Corp. v. Commissionbut it concluded that the act of the firm fell under the ambit of Article 102 (2)(d).
While determining infringement under Article 102 following issues must be considered:
a) Does the accused undertaking has a dominant position?
b) Is the dominant undertaking guilty of tying two distinct products?
c) Was the customer coerced to purchase both the tying and tied products?
d) Could the tie have an anticompetitive foreclosure effect?
e) Is there an objective justification for the tie?
Does the accused undertaking have a dominant position?
The ambit of Article 102 is itself all about dominance in the market, so if any firm/ undertaking is in dominant position then only their actions can be covered under the infringement otherwise it is not possible. As per the guidance of the Commission the undertaking need to be dominant in the tying market rather than in the tied market. This means the tying product is the main product to which another product i.e. the tied product is attached. If the undertaking dominates the tying product then only it can coerce the consumer to buy the tied product. For example, Apple Company has a monopoly in manufacturing laptops or mobile phone, however, the headphones of apple are not in monopoly, in such cases the Apple can have tying agreement. Therefore, as per the Guidance of the Commission, a monopoly in the tying market will suffice. However, in the bundling market having the monopoly in one of the bundled markets will be enough. The undertaking should be dominant in the tying market, though not necessarily in the tied market. In bundling cases, the undertaking needs to be dominant in one of the bundled markets. But in some ‘special’ cases in the aftermarket of tying market dominance can be in tying as well as in the tied product.
Is the dominant undertaking guilty of tying two distinct products?
To determine, whether the dominant is guilty of the tying of two distinct products, it is important to understand what can be a distinct product.
The distinct product generally means the customer would have bought the tying product without purchasing the tied product. Therefore, this leads to stand-alone production of both the products. The commission considered the demand of the customer to determine the tying of two distinct products. There can be two types of evidence to determine the same:
1) Direct evidence: In this, the customer has purchased the tying products separately from different sources of supply if given a chance.
2) Indirect evidence: There are various to determine indirect evidence, they are as follows:
The presence of the undertaking which is specialized in manufacture or sale of the tied product in the market without tying product; or
number of each product which is bundled by the undertaking; or
evidence which shows that undertakings which have little power in the market as are not bundling or tying similar products.
By this, we understand that when customers are forced to purchase as a product with another product which they are intended to purchase then such practice turns out to be an abuse of dominant position by the undertaking.
For example, you want to buy a car, the manufacturer or seller gives you four tyres with the car. Now this as such cannot be called tying. Further, a spare tyre is also provided by the seller, which can also be considered as fair practice. But if the seller tells you to purchase a radio or have insurance from a particular insurance company then that will be considered as tying.
Therefore in each case, the situation will differ, and it is on the circumstances and evidence we can determine that particular product tied is infringing Article 102. Generally, in such cases, the burden of proof lies on the authority or claimant.
Euro fix-Bauco v Hilti
In the Euro fix-Bauco v Hilti case, Hilti was accused of doing the sale of nails (tied product) with nail gun (tying product) upon the customer. The tying was not absolute the customers were given a discount if they buy nails with nail guns. The Commission held that Hilti’s practices (para 75) “leave the consumer with no choice over the source of his nails and as such abusively exploit him.” The Hilti appeal to the General court. The argument made by the Hilti was that they want to protect their customers. The point made by Hilti was the nails provided by the other company did not comply with the nail guns provided by the other companies. The General Court invalidated the argument, as there was no valid evidence for the same and the commission also stated that it is not Hilti’s responsibility to take care of their customers towards other products.
Tetra Pak International SA v Commission
In the Tetra Pak International SA v Commission case, Tetra Pak was forcing its customers to only use Tetra Pak cartons while packaging Tetra Pak machines. And it was made mandatory to obtain the cartoons exclusively from Tetra Pak. The General Court held that “where an undertaking in a dominant position directly or indirectly ties its customers by an exclusive supply obligation, that constitutes an abuse since it deprives the customer of the ability to choose his sources of supply and denies other producers access to the market.” And the same was upheld by the ECJ (European Court of Justice) in the appeal made by Tetra Pak.
Microsoft Corp v Commission
The case Microsoft Corp v Commission was filed in 1998, the Sun Microsystems filed a complaint against Microsoft. The complaint was based on the Abuse of domain position by Microsoft. They were tying their media player (tied product) with the Operating system(tying product). Customers do not have the choice to purchase the tying product without the tied products. The court observed that the Operating system and the media player are two distinct products and therefore it is not a part of technological advancement. The Commission fined €497 million and as a remedy appointment of Independent, Monitoring Trustee was made. The commission order was appealed in the Court of First Instance (Grand Chamber). On 17 September 2007, the judgment of the Commission was upheld by the Court.
In January 2008, again the Commission initiated fresh proceeding against Microsoft. The Opera was the complainant, who was a competing browser. The complainant alleged that Microsoft’s inclusion of the Internet Explorer needs to be considered as an illegal tie. In December 2010 the Commission announced that Microsoft had accepted the commitments under Article 9 of Regulation 1/2003. And under the commitment, Microsoft accepted to allow its users of Windows to choose different web browsers. However, a fine of €561 million from May 2011 to July 2012.
Was the customer coerced to purchase both the tying and tied products?
The phrasing of Article 102 (2) (d) is clearly states that when two distinct objects which actually do not need to be tied up is tied up by the company by giving discounts or putting conditions as we saw in the case of Tetra Pak that the tying product is only available if the tied product is purchased by the customer. Hence, the result is the customer is coerced to purchase both the tying and tied products.
Could the tie have an anti-competitive foreclosure effect?
In Microsoft case, one of the factors on which the Court emphasized was the tie-in arrangement which will result in the foreclosure effect on the competitors. Attaching media player with the Operating system was per se restricting the other media player of competitors was creating a detriment effect on the competitors. The operating system of Microsoft in the year 2002 had 90% market share, the users who get pre-installed media player with the Operating system would be less likely to opt for the media player system of competitors.
In the case of Napier Brown/British Sugar,(Commission Decision of 18 July 1988), the commission held that the foreclosure effect resulted in tie-in arrangement considered as an infringement of Article 102. Napier Brown was the leading sugar supplier in the UK. However, they put a condition that sugar will only be sold if the right to transport of sugar is given to them. This eliminated the market of other competitive transporters, therefore the Commission held it as an act of infringement to Article 102(2) (d).
Is there an objective justification for the tie?
The dominant firm can make an argument by saying that the tying was made to make the product more efficient. However, this argument made by the firms is not considered normal by the Commission, as in the Microsoft case and Hilti case it was evident.
In paragraph 62 of the Guidance of the Commission, the Commission will look into the claims of Dominant undertakings if:
1) They benefit the consumers;
2) They reduce the transaction costs;
3) Combining two independent products will enhance the product;
4) The supplier wants to pass efficiencies arising from its production to consumers.
If the above claims are made and proved with evidence by the Undertaking then that will be considered as objective justification.
UK Law
Under the UK Law Chapter II Sec 18 (2) (d) of the Competition Act, 1998 deals with the tie-in arrangements.
“making the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of the contracts.”
However, there is a small difference between the application of Article 102 of the TFEU and Chapter II of the UK Competition Act, 1998. Under Chapter II, even the firm having a Dominant Position in a fairly small area of the UK, then that will be also considered as dominance.
Refusal to Supply
Refusal to supply per se is not anti-competitive in the eyes of Competition laws. A firm can refuse to supply if it has certain objective justifications. Consider for example if an oil pipeline company refuses to give pipeline service to an oil producer then there can be some rationale behind the refusal. the reasons can the oil producer produce bad oil or no good reputation in the market regarding oil production, management concerns or peak load concerns. Such reasons are justifiable, but if the pipeline company does not give supply to an additional customer, then there the question arises why, and the Commission will look into the matter thereafter.
As per Commission’s Guidance para 78 the concept of refusal to supply covers a broad range of practices. They are as follows:
A refusal to supply products to existing or new customers;
Refusal to license intellectual property rights;
Refusal to grant access to an essential facility or a network.
Refusal to supply can be vertical as well as horizontal. By using this practice by the vertically integrated dominant undertaking it can lead to a potential strategy in the market. In the vertical refusal to supply a dominant firm tries to eliminate the competitors from the downstream market and thereby it protects its market share and prevents itself from effective competition. This is generally practiced by refusing supply or access to the competitors to an input in which the undertaking is in a dominant position. For example, it can deny to give access or refuse to give raw material, pipeline services, harbor facility services, etc.
However, in the horizontal refusal to supply it directly stops to give supply or service to the competitors or tries to stop distributors from giving service to the competitors. In the United Brands Company and United Brands Continentaal BV v Commission of the European Communities(Judgment of the Court of 14 February 1978) (Case 27/76), they tried to stop distributors to participate in an advertising campaign of the competitors which was considered as an act against Article 102.
EU Law
Vertical foreclosure: competitive harm in a downstream market
Is there a refusal to supply?
There are various factors the Commission looks after in the case of refusal to supply. As per the Commission’s Guidance paragraph 79 it is not necessary that refused product is in the market, even if the product is in demand from potential purchasers and there is stake in the potential market on the input of the product that will suffice the conditions to put the dominant undertaking in a position to refuse the supply of the product.
Another type of refusal to supply is ‘constructive refusal’. Upfront when we see the practice we can not conclude it as a refusal to supply, however, this is a tactic by the undertaking in which they make such conditions where the other party itself withdraws from the contract. For example by unduly delaying the supply of the product, or else providing a degraded product, or to impose unreasonable impositions or conditions at the party.
However, the Commission under the following conditions will strictly give enforcement priority if mentioned all circumstances are present in the refusal to supply (as per paragraph 81, Communication from the Commission — Guidance on the Commission’s enforcement priorities in applying Article 82 of the EC Treaty to abusive exclusionary conduct by dominant undertakings(2009/C 45/02):
If the refusal of service or product sufficiently effects the effective competition on the downstream market;
If refusal leads to the elimination of effective competition on the downstream market;
If the consumer is likely to be affected by the refusal.
In the case of Commercial Solvents v Commission– As per paragraph 25 of the Judgment, “An undertaking which has a dominant position in the market in raw materials which, with the object of reserving such raw material for manufacturing its own derivatives, refuses to supply a customer, which is itself a manufacturer of these derivatives, and therefore risks eliminating all competition on the part of this customer, is abusing its dominant position”.
Further, in the case ofBronner v Mediaprint, it was held that when there is no potential or actual substitute and the refusal creates concern on business due to indispensable input, then such refusal is likely to eliminate the competition and such refusals can not be objectively justified.
However as per paragraph 77 of Commission’s Guidance, certain actions by the undertaking will not be considered as a refusal to supply, those practices will be dealt under exclusive dealing and tying and bundling:
When supply is halted in order to punish the customers as they are dealing with competitors;
Refusal to supply when the customers do not comply with tying arrangements, likewise.
Does the accused undertaking have a dominant position in an upstream market?
As per Article 102, one of the important factors which need to be fulfilled is that the undertaking is in a dominant position. When the undertaking has a dominant position in the upstream market then only it can refuse to give supply or restrict its supply to the downstream market.
In De Montis Catering Roma v. Aeroporti di Roma, the Rome airport was fully controlled by a state-owned company. They were exclusively providing maintenance and ground services. When another company asked for permission for catering services the state-owned company denied to give rights to them. This was observed by the Italian Antitrust Authority and they found that refusal with no justification by Aeroporti di Roma leads to the extent of its monopoly. Refusing the consumers from getting good services from new entrants is also anti-competitive. Thereby, we can understand that a dominant undertaking can create such circumstances which can result in anti-competitive behavior.
Is the product to which the access is sought indispensable to someone wishing to compete in the downstream market?
When a dominant firm refuses to give access to the input in the downstream market which is indispensable for the downstream for the work, the firm creates a monopoly in the market by refusal and thereby it increases its monopoly strength. By creating scarcity to its services at the downstream market the monopolist finds it profitable, as it can overcome the regulatory constraints and also at the same time it can create a barrier to the competitor. Thereby the competitor turns to be incompetent to provide service and this leads to the elimination of the competition.
Would a refusal to grant access lead to the elimination of effective competition in the downstream market?
The paragraph 85 of the Commission’s Guidance clearly says that a refusal by a dominant undertaking over time or immediately can lead to the elimination of effective competition. We can understand this by an example, there are two dominant undertaking- Du1 and Du 2. Du 1 has 40 % market share and Du2 have 60% market share in two different relevant markets.
If Du2 refuses to supply to its downstream competitors, the elimination of effective competition is double compared to Du1 refusal to supply. Thereby, we can understand that if a dominant undertaking who have greater market share refuse to supply the downstream competitors will be having less option to opt with, and this scarcity in the market creates the monopoly of the dominant undertaking. This results in the foreclosure of the competitors, they will divert away from the market and this will advantage the dominant undertaking.
Is there an objective justification for the refusal to supply?
Some objective justifications are argued by the dominant firm regarding its refusal to supply. As per paragraph 89 and 90 Commission’s Guidance on Article 102, the Commission can consider the points if they are as follows:
1) When it is necessary for the operator to compete effectively on the market, which means the operators can refuse to supply to competitors in case if they feel that there are chances of Duplication. However, the Commission will make an effective assessment of the capacity of the competitor to make such duplicated of the operator’s product.
2) The operator can refuse to supply it the other party is not giving adequate compensation to the operator. Such situations can include wherein:
The customer is credit risk;
The customer is a bad debtor;
The customer will use the product for illegal purposes;
The customer failed to observe the contractual obligations.
However, de novo refusals are different from the above situation. De novo refusal means when from the initiation the operator refuses to supply to a particular party. But it is to be noted that refusing an existing agreement considered as more abusive compared to the de novo refusal, therefore it is on the firm to justify their action.
Remedies
Fine and injunctions are some remedies that are available if there is an infringement of Article 102. However it is noticed that to make the judgment implement it takes quite a long time, an example is Microsoft case, wherein it took three years and two decisions for the application of the obligation terms by the Microsoft case.
Horizontal foreclosure
Refusal to supply a distributor as a disciplining measure
In the case of United Brands Company and United Brands Continentaal BV v Commission of the European Communities (Judgment of the Court of 14 February 1978), United Brands trying to put a disciplinary measure on the distributor as they were distributing the competitor’s product as well. The act of the United Brands to prevent the distributor from participating from the advertisement campaign of the competitor even when there was no exclusive purchasing obligation held to be an Abuse of Dominant Position by United Brands. This will be considered as horizontal foreclosure as the United Brands were trying to stop the contract between the distributor and competitor.
Refusal to supply a potential competitor in the supplier’s market
As an exclusionary tactic, if a supplier immediately refuses to supply the product to a customer who can become a potential competitor who is trying to enter an upstream market, it can be considered as an abuse. The Commission found that in BBI Boosey & Hawkes: Interim Measures case (Commission Decision of 29 July 1987), the act dominant to refuse the supply of brass band instruments altogether immediately to a distributor who was intending to be the manufacturer of such instruments in the future was an abuse of Dominant Position. The Commission said that taking reasonable steps by the Dominant need to be proportional and fair, however withholding all supply suddenly is abusing its dominant position in the market
Refusal to supply on the basis of nationality
As per Article 18 of TFEU, discrimination on the grounds of nationality is considered as a discriminatory practice. In the case ofFootball World Cup 1998 Commission Decision of 20 July 1999, the Commission investigated the arrangements of ticketing as it was discriminating French residents. The Court of Justice in theGVL v Commission case held that to refuse to give membership to other nationals in national copyright collecting society is discriminatory.
Refusal to supply to prevent parallel imports and exports
In the case of BL v Commission, the BL was refusing to give certificates to the metro cars to be imported to the market, which was considered to be a restriction on parallel imports and the Court held that BL had abused its dominant position by doing such practice. Further, in the case of the United Brands v. Commission, the UB made a ‘green banana clause’ with distributors by preventing them to export unripened bananas to the other places. In this case, also the court held that UB having 45% share market abused its dominant position by imposing such clauses with the distributors.
UK case law
In the case of JJ Burgess & Sons v Office of Fair Trading, the CAT (Competition Appellate Tribunal) concluded that the W Austin & Sons (“Austin”) had Abuse of Dominant position by refusing to grant of Harwood Park Crematorium to JJ Burgess & Sons (“Burgess”). This was the case that was brought on an appeal by Burgess against the order of the OFT dated June 29, 2004, in which they held that Austins were not held liable for the Abuse of Dominant position. However when it was taken to appeal the CAT observed that Burgess are in competition with Austin in the downstream market for funeral directing services, hence to protect its market they abused their dominant position. The CAT surveyed the whole case and formulated some propositions which were sufficient to reach a finding on the facts of the case. The propositions can not be held as exhaustive, however, they are determinative to conclude whether it is a refusal to supply or not.
Non-Pricing Abuses that are Harmful to the Internal Market
British Leyland Public Limited Company v Commission of the European Communities(Judgment of the Court (Fifth Chamber) of 11 November 1986)- parallel import- this was the case which was upheld by the Court of Justice of the European Union when an appeal filed against the Commission. In this case, BL was trying to discourage the parallel import of the Metro cars from the continent by refusing to supply type-approval certificates. The Court held that BL is abusing its dominant position by refusing to give approvals for the certificate.
United Brands Company and United Brands Continentaal BV v Commission of the European Communities (Judgment of the Court of 14 February 1978)- export ban- United Brands committed an abuse by restricting its distributors to impose ban on the exportation of the green and unripened bananas and this practice lead to export ban as ripened bananas can be exported. UB had 45% market share which made it amount to be in ‘dominant position’ in the market. The UB inserted a “green banana clause” which effectively resulted in the prevention of exporting Chiquita bananas. Therefore, this practice of UB by the Court in the case against appeal of the order of the Commission was held to be anti-competitive and breach of Article 102.
Miscellaneous Other Non-Pricing Abuses
Harming the competitive structure of the market
In the case of Tetra Pak I (BTG licence), as per paragraph (59) (44), it has been observed by the court that Tetra Pak has 91.8 % of market share, in the EEC (European Economic Community) market and has automated technology which was able to supply cartoons in continuous form. The other competitor was PKL which had the technology which was only able to supply individual flattened blanks. Therefore, Tetra’s technology was already superior to its competitor. Furthermore, an acquisition of an exclusive license from BTG (British Technology Group ) will fully eliminate the competition in the market. Because of this elimination of the competition how consumers will be allowed to get fair pricing or share in any benefits was also a question. By these observations, the Court concluded that an argument from the TetraPak that exclusive license will increase its efficiency is not sufficient enough to avoid that point that it can drastically harm the competitive structure of the market.
Vexatious litigation
The litigations which are filed to ‘Abuse’ of the process can be called as Vexatious litigation. In the US this is termed as ‘Sham litigation’. The abuse of process can be done by making a misrepresentation in the regulatory process or fraudulently using the regulatory process before patent offices. This can also be done by instigating litigation with a collateral purpose to harm the competition in the market.
In the case of ITT Promedia NV v Commission of the European Communities (Judgment of the Court of First Instance (Fourth Chamber, extended composition) of 17 July 1998), the court observed that in order to determine whether the party is abusing legal proceeding there are two criteria, “the two cumulative criteria”:
The undertaking has taken the litigation step just to harass the opposite party and these criteria need to be manifestly unfounded;
The main plan of the undertaking is to eliminate the competition.
Conclusion
By understanding various non-pricing practices under the Abuse of Dominance we observed the approach of the Commission, the EU and the UK in various circumstances. The main aim of Article 102 is to prevent the factors which can eliminate the effective competition structure in the market and foreclosure the ways of the consumer, the new entrants and existing competitors to access the market and other sources. Being dominant in the market is per se is not anti-competitive. However, abusing a dominant position in the market by hindering ways to consumer and competitor is anti-competitive.
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This article is written by Asgar Ali, pursuing a Diploma in Industrial and Labour Laws from LawSikho.com. Here he discusses “Key Personnel Involved in the Implementation of Standing Orders within a Company and Their Duties”.
The aim of Standing Order Act is to require employers in any Industrial establishment to formally define conditions of employment under them. This Act has been designed to provide service rules to workmen.
This Act came into force on date 23 April 1946 with the title “The Industrial Employment (Standing Orders) Act, 1946 and is applicable to the whole of India. In every industrial establishment wherein One Hundred or more workmen are employed in any day of the previous year (However, State Government may prescribe to enforce compliance of this Act over Industrial Establishment owing a lower quantity of workmen too like in States of Haryana and Delhi, the applicability of this Act starts from 50 workmen), the compliance of this act becomes obligatory for that employer.
The Term Industrial Establishment can cover as follows:
Factory ( i.e. applicability of The Factories Act, 1948 )
Railways ( i.e. applicability of Indian The Railways Act, 1890 )
Establishments ( i.e. applicability of The Payment of Wages Act, 1936 )
Company
Workshop
handicraft
Construction Work
Transport Service
Mines
Plantation
Workplace related to Transmission of power
Workplace related to building activities/establishment of the contractor
Newspaper establishment
Television / Media Industry
Others, related to the similar nature of work
Here, It is necessary to mention here that in case, a newspaper Industry / Television or Media establishment the applicability of The Industrial Employment (Standing Orders) Act, 1946 becomes obligatory on 20 workmen or above than twenty (Referring- Section 14 of the Act) and their salary/wages/working hours/leaves and holidays etc. shall be regulated as per The Working Journalist and other Newspapers Employees (Condition of Service) and Miscellaneous Provisions Act, 1955 and 1957.
Key Person Involved In Implementation of Standing Order Within a Company and Their Duties:
1. Employer
he Term Employer is very broader. Section 2(d) of this Act defines the term “employer” which can be as :
In case of a Factory, Any Manager as per the Factories Act, 1948 – Section 7 /1/f. A manager holds administrative as well as Supervisory capacity who performs his duties at the workplace as like owner
Any HOD ( Head of Department ) or any authority appointed by state / central government in case of an Industrial Establishment under the control of that government
Any Supervisor or controller who is responsible to the owner for any industrial establishment other than the control of the government. In other similar viewpoints related to Industrial establishments, an Employer means any Managing Director /Occupier/ CEO / COO / Director /ED / CS / HR Manager or any other similar designation or any other officer who can discharge his duties as “Employer” and to whom the powers and functions can be delegated in this behalf.
Duties of Employer:
To submit a draft copy Standing Orders to the Certifying Officer and getting the same approved within a stipulated time frame. Section 3 of this Act says that every employer covered under this Act shall prepare standing orders covering the matters required under it such as classification of workmen, hours of work, holidays, leaves, disciplinary matters/proceedings, misconduct, suspension/termination rules etc. A Set of Five copies of draft standing order shall be sent by the employer to Certifying Officer ( Labour Commissioner / Joint labour Commissioner / Assistant Labour Commissioner as appointed by Appropriate Government ) of his territorial area for his approval.
Compliance as per approved Standing order: Employer shall display copies of his approved Standing orders at the entrance of the establishment/ prominent place where the majority of workmen get accumulated i.e. time office/punching machines/ gate entry etc. There is a statutory requirement of Displaying a Certified / Model Standing Orders in English and Hindi as language understood by the majority of Person.
Copy of standing order has to be given to all employees for their communication and record purpose.
To make policies and procedures, to define service rules, conditions of employment in conformity of Certified/approved Standing order.
In case any amendment or modification is required, then the employer shall involve and take consents of workers, employees, workers’ Union representatives by communicating necessary changes and shall get their acknowledgement overdraft amended copy for his internal record.
To safeguard and promote the employment rights of his workers in compliance with certified standing orders’ rules.
Grant of leaves/holidays to workers and timely payment of wages/ salary to workmen and payment as per applicable compliance requirements.
In any matter related to standing order compliances, to represent as employer/occupier before certifying officer / appropriate government/trade union/board/ external forum like any third party etc.
To maintain Safety, Health fitness and welfare measures of workers in industrial establishment : In present situations, when the manufacturing sector is growing and more workers are demanded in the form of manpower in order to fulfil the manufacturing production targets, the Safety and welfare measures of working people are prime requirement with the intention of ensuring Safe, healthy, secure and most important, a risk-free work environment. This is the reason that as per provisions of the Factories Act, 1948 in a factory, over every 500 working people, there shall be a Welfare officer appointed who shall look after the welfare as well as wellbeing of workers and over every 1000 people there shall be a Safety officer appointed who shall look after and educate the working people of associated safety risks and relevant Safety measure. The employer shall have to comply with the advice of welfare as well as Safety officer/ safety Committee so that there should be no harm at the workplace.
Fair Inquiry / Investigation in case non- compliance caused by workers: An employer should promote conducting fair inquiry/investigation against an accused worker(s) giving him a reasonable opportunity of being heard and presenting his side also. This process should be based upon natural justice with the implementation of certified standing order rules from the side of an employer empowering the constituted committees, appointing inquiry officers, giving them authority to investigate and presenting relevant facts and most important to involve a representative of workers’ trade union, if any.
No doubt, these essential requirements are incorporated into stranding order rules but it is the duty of the employer to ensure necessary compliances.
2. Workman
The Term Workman is has been defined clearly in The Industrial Disputes Act, 1947 that any person employed in an establishment who is skilled, semi-skilled or unskilled, hired, rewarded to do any manual, clerical, technical, operational and supervisory work but not employed in any managerial or administrative capacity.
In the Factories Act, 1948, A Worker is defined as any person who is employed, directly or indirectly through contractor (or manpower supply agency), with or without brought into knowledge of principal employer which may be with or without remuneration in any process of manufacturing, any cleaning work of machines, manufacturing premises, allied work activities of manufacturing process. Hence, the implied meaning of worker as per the Factories Act, 1948 covers its employees also.
The Standing Orders Act classifies the workers into permanently employed, on a temporary basis, as an apprentice, a probationer, or a badli worker.
Duties of Workmen:
Standing Orders Act not only defines the rights of workers in any industrial establishment but also defines certain roles and responsibilities which are communicated to them by providing them with a copy of certified standing order in English / Hindi or language understood by the majority of workers. In these copies, certain roles responsibilities of workers are written. Few of them are mentioned below:
It is the core responsibility of all types of workmen and employees to obey certain applicable rules and regulations mentioned in certified standing order rulebook of their industrial establishment where they are working like entry and exit on time, to follow all security and safety rules applicable there, to get them searched during entry and exit and not to do any misconduct. Misconduct can be like any type of insubordination, defiance, deception, non- compliance of company procedures, corruption, harm to employer’s property, taking bribe, habitual absenteeism, habitual late coming at work, disorderly behaviour, habitual negligence of work, any illegal work or illegal involvement in strike/dharna/bandh against management, etc
To comply all applicable Company Safety, Health, Welfare and Company’s HR Policy, Hence to follow all compliance applicable as an employee/workmen/ apprentice ( whatsoever the designation is there) including not to divulge any confidential matter and trade secrets of employer’s business to any third party.
In any industrial establishment where manufacturing process-related risks are present and whenever management organise relevant training and awareness training programs then all workmen and employees including apprentices/ badlis / temporary etc. to attend training programs and to follow applicable guidelines, to use appropriate safety gears and not to misuse employers’ equipment, machinery or property ( Section 111 of the Factories Act, 1948 )
Not to refuse to work in shifts / at overtime whenever there is exigency of work at the company.
3. Managers:
The manager of the Company includes the Head of department or person employed in any managerial or administrative capacity.
Duties of Manages:
As the managers are delegated the power to work on behalf of the employer, So Manager of any Company is personally believed responsible for the appropriate and truthful compliance of the Standing Orders.
Conclusion
The implementation of standing order within an industrial establishment is binding on all persons associated with it i.e. Employer, employees, trade unions, workmen of all classes in which there may be all genders i.e. male, female and transgender.
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This article is written by Tanya Gupta, a 2nd-year law student, from BVP-New Law College, Pune. In this article, the author has discussed the concept of “Constituent elements of a crime”.
Introduction
A Crime is an unlawful Act punished by the state or any lawful authority. A crime or an offence is an act which is harmful not only to the person but also to the community, society or state. Such acts are forbidden and punished by law.
Every crime violates the law but every violation of the law does not commit a crime.
Greed, anger, jealousy, revenge or pride are the main reason for committing a crime.
The elements of a crime should be legal in nature (must be in law), Actus Reus (human conduct), causation (human conduct must cause harm), harm (to some other/thing), concurrence (state of mind and human conduct), Mens rea (state of mind and guilty), Punishment.
The essential ingredient of crime blameworthy condition of mind. Its absence cannot make a person liable.
Stages of Crime:
1) Theintention is the first stage of a crime.
2) Preparation is the second stage of crime.
3) The third stage is an attempt. It is direct movement of an Act towards execution of an Act after preparation of the plan.
4) The fourth stage is the accomplishment
Act to be Voluntary
Crime is the product of our own choice and our own independent will. The Act should be voluntary. The Act done by a person must be of conscious choice to constitute a voluntary Act for which he is held criminally liable. The voluntary Act is an Act that does not fully result from independent will are committed with extreme indifference to inhuman life. A conscious person who loaded a gun at others will typically be held liable for any harm that results during accidental discharge because loading the gun is treated as a voluntary activity.
Fundamental elements of a crime
To establish criminal liability, crime can be broken down into elements which a prosecution must prove beyond a reasonable doubt. There are basically four elements of a crime are as follows:
1) Human being: Section 11
Human being must commit wrongful Act to fulfill first element of a crime that means any non living thing or animals are not considered in the category of a person or a human being whereas in ancient times when criminal law was closely dominated by the idea of ritter bit theory punishment was also inflicted on animals for the injury caused by them. For Example, if a dog bites anyone he is punished a horse was killed for kicking a man but in Indian Penal Code if animal cause injury we do not make animal liable but the owner is held liable for such injury so the first element of crime is human beings who must be given appropriate punishment and should be under legal obligation to held criminally liable. ‘Person’ is defined in Section 11 of Indian Penal Code which includes company, association or body of persons whether incorporated or not. The word person includes artificial or juridical persons. He is a legal entity created by law which is not a natural person such as corporation created under state statute. It is a legal entity having a distinguished identity and legal rights and obligation under the law.
2) Mens rea or Guilty intention
The second element is derived from the famous maxim Actus Non-Facit Reum Nisi Mens Sit Rea. This maxim is divided into two parts. The first part-
a) mens rea (guilty mind);
b) Actus reus ( guilty act ).
It means the guilty intention and guilty Act together constitute a crime. It comes from a maxim that no person can be punished in a proceeding of criminal nature unless it can be shown he has a guilty mind. The second element is Mens rea which can be explained in various forms a guilty mind; a guilty or wrongful purpose; a criminal intent, guilty knowledge and willfulness all constitute the same thing that mens rea.
Motive and Intention are both aspects in the field of law and justice both are very important. They are also associated with the purpose of proving or disproving a particular case or crime Wrong motive with guilty intention is necessary to prove criminal liability.
3) Actus reus or illegal Act or omission
It is the Latin term used to describe a criminal Activity. It is commonly defined as a criminal activity that was the result of voluntarily bodily movement. This describes a physical Activity that harms another person or damages property. In other words, due to guilty or wrongful intention, some overAct or illegal omission must take place. There are two types of Actus reus first is commission and the second one is an omission. The commission is as a criminal activity that was the result of voluntarily body movement. This describes a physical Activity that harms a person or property. Against human body includes physical assault, murder, hurt, grievance, hurt etc & property includes theft, decoity, extortion etc.
The omission is another form of Actus reus as an Act of criminal negligence. An omission could be falling to warn others that you have created a dangerous situation, for eg. not feeling an infant who has been left in your care or not completing a work-related task which resulted in an accident.
4) Injury under Section 44
The fourth requirement of a crime is injury should be caused to another person or to society at large. According to Section 44 of Indian Penal Code, 1860 the injury is defined as any harm illegally caused to any person in body, mind, reputation or property by another person. Elements of crime are a set of facts that must be proven to convict a defendant of a crime. Criminal elements are sets forth in criminal statutes or cases in jurisdictions that allow for common law crimes.
Actus Reus
Meaning
It is a Latin term for the guilty Act. The Act you need to commit an offence. It must be a voluntary Act Actually doing something eg taking a bracelet in a theft. It is not an involuntary Act. An example of an involuntary Act given in the case ofHill vs Baxter was someone losing control of a car because they are attacked by a swarm of bees or because they have a heart attack.
Actus reus is such a result of human conduct as law seeks to prevent. It should be prohibited by law. It is a physical aspect of the crime. There are basically two main components of criminal law is Actus Reus and Mens Rea.
Actus Reus is the wrongful Act or task committed by a person and Mens Rea is the state of mental aptitude behind such Acts. Mens rea is a term from which a famous Latin maxim Actus Non-Facit Reum Nisi Mens Sit Rea had been derived. Actus Non-Facit Reum Nisi Mens Sit Rea further explains as to how Mens Rea is applicable in committing an offence or a crime. It states that if a guilty mind or intent is accompanied by a wrongful Act then only the person will be held liable. This maxim is used to determine whether an Act committed by a person is an offence or crime or not. Severe penal Actions are required for crimes committed with specific intentions and not for unanticipated or unintentional Acts. However, no breach of law cannot be unpunished. To differentiate between intentional and unintentional criminal Act this legal maxim is established so that the type of punishment can be decided accordingly. There can be no crime and no suit for damages can arise without a guilty Act.
General Principles Of Actus Reus
The general rule of Actus Reus is no liability for failing to Act unless at the time of failure to Act the defendant was under a legal duty to take positive action.
The duty arises from statute- Children and young persons Act,1933 (UK), omission culpable by people over the age of 16 falling to look after a child under 16.
The duty arises from a contract- Failure to perform the contrActual duty in question can perform the basis of criminal liability.
The duty owed to family members-
R VS Gibbons and proctor 14 Crapp-man and his wife were guilty of murder by failing to feed the man daughter.
A Mere omission to Act cannot be lead to criminal liability unless a statute specifically provides or a common-law imposes a duty on it. Moral duty should be distinguished from the legal duty of an Act.
Causation in Crime
Causation doctrine can be boiled down to the question of whether the defendant illegal Action was an operative and substantial cause of harm which resulted. The question which the court asked was ‘but for’. ‘But For’ defendant Action, the harm has occurred. For example, Albert poisoning victoria when victoria dying of a heart attack before the poison takes effect to put events in another way around however it does make a difference shooting the life of someone with terminal illness causing their death because without the illegal conduct they would not have died at the time and in those circumstances.
The ‘But For’ doctrine however still involve a lot of potential causes also we also ask for legal causation that is whether the defendant Action is the operative and substantial cause of harm. This is most significant where the Action and inAction of another person or the victim themselves change the normal course of events. This is known as nervous Actus intervenes and a new intervening Act. Professor hard and honour develop this principle using the distinction between those circumstances that are apart of factual background or conditions and those who are causes. They point out that in order to start a fire u need a drop match, oxygen, and combustion material but we will only the cause of that fire. In this case, oxygen and flammable material are normal ways whereas causes the dropped match is abnormal and in their view, abnormal things can only be causes. The question of what things are abnormal. It was emphasized that only free voluntarily and an informal Act of a third party can be abnormal and break the chain of causation.
In the case of R vs Smith defendant, a soldier got in a fight at an army and stabbed another soldier the injured soldier was taken to a hospital but was dropped twice at route .once their treatment given was described as wrong .they failed to diagnose that his lung was punctured and the soldier died. The defendant was convicted of murder and the appeal contended that if the victim was given correct medical treatment he would not have died. It was held that the stab wound was an operating cause of death and therefore conviction was upheld. In such cases, the court was reluctant to lead the defendant complaints that their victim was have survived if they had received proper medical care.
Causa causes
Causa causes literally means the primary cause or the originator of Action. It is the reason for all the causes. Damages that resulted from all the causes are generally referred by causa causes. To get the damages the defendant illegal Act must cause harm that should be proved by the claimant. There is no need to prove the original cause of harm by the defendant. However, while determining the cause of harm the court will consider the proper explanation given by the defendant for the original cause of the harm.
Moti Singh and Jagdamba Prasad appellants together with five other persons were convicted by the session judge of Unnao of offences under Section 148, Section 302, read with Section 149 and Section 307. Each of them was sentenced to life imprisonment under Section 302 read with Section 149 of the Indian Penal Code. It was alleged that the accused party members fired with guns and pistols both from inside and outside the room on the other side of passage when the victim party passed along with the passage. The evidence relied on for the conviction of Moti Singh consists of the dying declaration Ex kha 75 of Gaya charan and presumably also of the statements of the prosecution witnesses as HC has not specifically stated so. Again, HC relied on exhibit Kha 75, the alleged dying declaration of Gaya charan as deciding, factor in deciding the number of persons who had taken part in firing from the room and from the platform. The result is that the statement of Gaya charan Ex Kha 75 is inadmissible in evidence. It was a mainstay of the judgement of HC upholding the finding of the session. Appellants were among the persons who had fired from room and platform. It therefore accordingly allowed appeals the order of the HC and acquit Moti Singh and Jagdamba prasad of the offences they were convicted of and hold that Moti Singh and Jagdamba prasad have not been to have taken part in that incident. It was directed that they are released forthwith, if not required to be detained under any process of law. Appeal allowed by the court.
In this appeal, the conviction was challenged by appellant rewarm. Under sec 302 of the Penal Code for which he has been sentenced to imprisonment for life for committing the murder of this wife. The prosecution case is four children and appellant resided with deceased Gyanwati Bai in the house of Bhurkin Bai. It was found that the appellant was standing close to her and she was lying close to her bed in the pool of bed. Dr Mahajan performed post mortem examination and found numerous incised wounds on the persons of the deceased. As per the report, in the ordinary course of nature to cause death he opined that injury no 5 as written in the report was sufficient. Due to effective medical treatment, Gyanta bai had recovered from the shock.SHRI Datt relied upon a decision of this court in NOOR Khan vs the state of MP. In that case, the medical evidence was used to refer to the injuries sustained. In the result, the appeal was not allowed and not implemented. Under Section 302 of the Penal Code, the conviction of the appellant Rewaram with a sentence of imprisonment for life is confirmed.
In this case, a fight took place between Dalip Kumar and Harjinder Singh, appellant near the water tap in front of a tin factory in Zamirwali lane, Delhi. Harjinder Singh was badly injured in the fight and he then left the place holding out a threat that he would teach a lesson to Dalip Kumar. The appellant returned with his brother Amarjit Singh to go away but either these two or Dalip Kumar pulled out of the house into the lane and gave him beating near lamp post in Zamirwali lane. It seems to us that High Courts has not considered whether the third ingredient has been proven in this case or not. In our opinion, the circumstances justify the inference that the accused did not cause to intend the injury. When the appellant struck the deceased with the knife, he must have known that the deceased being than being in a bent position. In these circumstances, he struck the deceased with the knife with the intention to cause an injury likely to cause death was quite legitimate. The appeal is allowed and conviction is altered from Section 302 to Section 304.
Mens rea
An Act becomes a crime when it is committed with evil intention. Evil intention or guilty mind is essential to commit a crime otherwise a person cannot be held liable and punished. Mens rea is based on a well-known maxim. Actus non facit reum nisi mens sit rea which means Act does not make a man guilty unless his intention was so. Earlier in English criminal law, there was no distinction between crime and tort. Criminal law was based on strict liability and punishment in those days was mainly in the form of monetary compensation. Therefore mental element in crime was irrelevant but later bodily punishment came in substitute of damages. Now from here, mens rea got importance. Mental element in crime was recognised as this time With the passage of the time, mens rea become an element in deciding crime. For any criminal liability, the Act should be voluntarily committed. No person can be held liable for an Act done under any fear or compulsion. For example, A points revolver on B and say to open the lock of the house of C. Here B Act is not voluntary but it was against his will. Intention and motive is a different element of a crime Motive may be good or bad but if the Intention is not good then the person is held liable for the crime.
For example, if A steals bread from a shop due to hunger. Here the motive is good but still, he is liable for stealing.
Prince took away a girl below 16 yrs of age from the position of father and against the will of her father. Prince argued that the girl told him that she was of 18 yrs and the intention was bonafide as she was looking like 18 yrs or above. In this case, the court has held that he cannot be given the benefit of the doctrine of mens rea because this is the case of mistake of law, taking away a girl below 16 yrs is unlawful hence he was held guilty.
General Principles
Actus Non-Facit Reum Nisi Mens Sit Rea – An Act does not itself make one guilty unless the mind is also guilty This guilty mind is known as Mens Rea. There are two elements of mens rea first one is intended to do Act and the second one is knowledge of the circumstances that make the Act a criminal offence. Mens rea takes on different types in the different surrounding that is what is evil intent for one type of criminal offence may not be so for another kind. For example, in case of murder intent to goes is mens rea then in case of theft intent to steal is mens rea.
Other Forms of Mens Rea:
1) Intention;
2) Motive;
3) Knowledge;
4) Recklessness;
5) Negligence.
These all refer to different types of mental aptitude which constitutes mens rea.
The SC held that statutory penal provision must be read with the elements of mens rea unless a statute either expressly or by necessary implication rules it out.
Intention
It is the purpose or design for which an Action has been done. The intention is basically Position of mind at a particular time in committing an offence and will of accused to see the effects of his unlawful effect.
D, in order to frighten Mrs booth put burning newspaper in the letterbox of booth house fire spread and two children, died D not meant to kill, but foreseen death or grievous bodily injury as a high probable result D is guilty she knew about the result of her conduct sufficient mens rea for murder. The intention not only means a specific intention but also generic intention. Section 39 of IPC defined term voluntarily a person is said to cause an effect voluntarily when he causes it by means whereby he intended to cause it or by means which at the time of employing those means he knows or had reason to believe to be likely to cause it.
Intention and Motive
The motive works as the fuel for the intent. The motive is the reason why someone is going to do something. It is the fountain from which the Actions, spring whereas intent is the goal to which they are directed. Intention means the purpose of doing something motive determines the reason for committing an Act. The intention is the basic element for making a person liable for a crime which is commonly contrasted with motive. The intention is the product of motive in fAct motive is not a legal element of a crime. Motive plays a significant role because without an understanding of why people commit certain crimes in the way they do we are left to begin at whether they have done with a good motive or bad.
Knowledge as Mens rea
Knowledge is the awareness of the consequences of the Act. The term Knowledge is used in Section 307 (attempt to murder) instead of mens rea The knowledge and intention are on the same footing with a guilty mind Therefore knowledge is also component which includes mens rea. Therefore the Indian Penal Code recognizes Mens rea as knowledge.
Defendant does not give the food to his wife for several weeks and he is now liable for murder because Act must be done with intent or knowledge of the scarcity of food.
Negligence as Mens rea
The third form of mens rea is negligence. Negligence is the duty to take care of. In other words, a person when he is negligent if he fails to exercise the duty or caution while performing a lawful Act The concept of reasonable negligence is not defined anywhere. Test of reasonable care depends on the view of the prudent man therefore who is able to fail to take care of reasonable care and if his Actions cause harm anyone it is called the negligent Actions of a person this negligent Act is considered as a mens rea for criminal liability of a person.
Vicarious Liability
According to the principle of vicarious liability when a person is liable for the wrongful acts done by another person, then that first person is known as vicariously liable for the actions of the second person. Here the relationship between the two of them is a must.
There should be some relationship between A and B then only the liability of A will can arise towards B for doing some Act.
The relationship can be in the form of:
(a) Principal and agent.
(b) Partners of the partnership firm.
(c) Masters and servant.
The principal is liable committed by his agent during the course of employment. The plaintiff has the choice to sue the principal or agent or both of them.
The exception to General Rule of Vicarious Liability
A person who does any wrongful Act through another person(servant/agent) by hiring them and hired person does that wrongful Act in the course of employment.
There are two Latin maxim in which Vicarious Liability evolve out:
Respondeat superior: Let the master be liable.
Qui facit per alium facit per se: Master will be liable for the work of his servant.
Conclusion
Actus reus and mens rea both play a significant role in an offence. Criminal guilt is an essential element for violation of criminal law. Therefore, Wrongful intention should be present in any offence.
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One day I came across a dhaba near Kolkata airport. People stood in queue outside on a Sunday evening to get a seat. The food was really outstanding and cheap, but I could not help but count the number of tables and did quick math on how much money this dhaba makes on a per hour basis.
Doing the math was a little easier for me because I have delved into the restaurant business in the past. According to me, the dhaba was making a profit of at least 3 lakhs on a single day.
What do you do when you realize that there is so much money being made by a roadside dhaba with very minimal investments? Do you open another one next to it? Wouldn’t you be tempted to do so?
Indeed many people do that. That is why next to every famous restaurant there would be a few more doing similar things. Near every famous bookstall, a few new ones sprout up. If one panipuri wala is doing very well, then some other ones will set up shop close by.
When we did well by starting online courses with NUJS, within a few months a few more companies started tying up with NLUs and began to offer similar online courses, and offered a cheaper price to corner the market.
Success begets competition.
Let’s say you bought x stock and made lots of money in the last 1 year. If you tell all your friends, many of them will go and buy it. Suddenly, the stock will be overvalued. Now, it is a really bad time to buy this stock. It was a good time to buy it last year when it was not a hot stock. Now that it’s being bought by lots of people, it’s too heated up, and those people buying late aren’t going to make money, in fact, many of them will make losses.
You should never buy a stock recommended on TV or newspaper because if it is so widely known that this stock is a good one and many people are already buying it then it’s already overvalued! You need to buy when it is yet to become popular, not afterwards, if you want to make money from it.
Here is the thing. The people who try to just copy the previous success rarely succeed. If a dhaba is doing unusually well, it is not just because someone opened the dhaba in that particular location alone. They have figured out other operational or service-oriented things that are much harder to copy than the location.
Surely you will make some money by opening a dhaba with a similar menu next door, but you may make much more money by opening an ice cream parlor or a bar. If you did your research, you will perhaps realize that there is a massive demand for a QSR restaurant in that area, which would also give you better margins.
If there is already a thriving school, instead of opening another school next door, it may be a much better idea to open a coaching centre for JEE or something else if there is a dearth of such services.
If you open another bookstore and succeed, next to an already successful bookstore, then at most you get half of the business of what the other guy was getting when he was alone. What about doing something where you can do even better? Perhaps opening a video game parlor would be more attractive?
You may wonder why I am talking about this in so much detail.
I need to tell you this because this is the most common thing that lawyers do. They see a successful lawyer and want to copy what that lawyer did to succeed in his practice and hope for the same results.
That is why you will see some of the areas of law practice are super crowded while their plenty of niches where it is very hard to find a competent lawyer even when you are ready to pay.
It is damn hard to find a good lawyer in district courts even if you are ready to pay more, while at HC and SC level there are plenty of good lawyers who will work for even less money?
What? Why? The answer is in status. Most lawyers think that working in Supreme Court is more prestigious than working in a tribunal or district court!
That is not the only way in which people seek status. They also seek status by copying an already successful niche law firm or a tribunal practice too.
If you are copying an already successful lawyer, such as someone who successfully built a thriving practice in a certain tribunal, remember that you are copying it too late.
What worked 10 years back is least likely to work now.
For example, 10 years back it was a great time to get an early entry into VC investment space as a lawyer. Yes, it has more volume than ever right now, but it may not be the best area to specialize in right now. Right now it is super crowded, massively competitive, prices getting undercut left, right, centre and a really bad place for a junior lawyer to start if you want to build a successful practice of your own in the coming 10 years.
Immediate job? Yes, VC investment space is ripe for that. Hidden opportunity for next 10 years? Look elsewhere.
On the other hand, patent drafting, filing and litigation has a massive space to grow due to increased inventions and investment around blockchain, AI, IoT, biotechnology and other such trends while there are too few lawyers learning the relevant skills.
Similarly, an increased number of investment deals implies that there will be a great number of shareholder disputes in years to come.
As there has been a massive push to build new infrastructure in fast modernizing India, it is a no brainer that there will be lots of EPC contracts to draft and many, many construction arbitration matters will arise in India.
Do you see too many lawyers clamoring to build a practice in these areas? Not really. However, early entrants in these markets who build a business carefully are likely to grow very big.
When it comes to opportunities, you cannot just see where the opportunity is today. You have to forecast what may be the next wave of opportunities a few years down the line and begin your work to position yourself to take advantage of the opportunity when it arises.
The other way to really succeed is to find an opportunity that exists today, that others have underestimated and therefore missed. Consumer protection, class action suits, money recovery for SMEs and medical negligence cases are perhaps such overlooked niches.
However, if something is working really well today, and as a lawyer you try to copy the same, it may be too late for you to begin. It will be incredibly hard to start a steel factory today and succeed big, just like it will be very hard to start a top M&A or capital markets law firm for a newbie. It would also be hard to compete with a Vakilsearch or Indiafilings. We are better off looking for blue ocean opportunities.
However, most lawyers see their seniors, successful peers or law firm partners and get enamored by what they do, and hope to do the exact same thing.
Some even try to copy the tropes of success and expect success to come based on the tropes!
Success is not being able to hire a secretary, having an office in a fancy part of the town or hiring a dozen juniors. A nice, well-furnished office or chamber may make you look like your practice is doing well, but the market will find out the truth soon. You can’t charge top rate just because you drive a Jaguar. You really need to add value to your clients, in a way that others cannot easily, and that would be your ticket to success.
So what is it that you can do for your clients that others cannot or do not?
What will be your competitive advantage over other lawyers or law firms?
What will make it more attractive to hire you rather than hire the other lawyer who charges less than you?
If you cannot answer these questions, it will be hard to succeed beyond a point. If you have really good answers, you are on your way to doing well. It is only a matter of time. Have patience, and keep adding to your repertoire of advantages. The longer is the lead you have, the better.
At LawSikho, we have implemented this exact principle. Instead of doing what everyone else has been doing in the online education space, we chose to be different and chose to solve a problem that nobody thought of solving. For starters, we focussed on solving problems of lawyers learning new skills rather than focus on giving some minimally useful courses to the law students as our competitors back in the day used to do. Naturally, we were forced to create courses of a much higher caliber and expected only lawyers to take them, but then the law students anyway followed!
A lot of people wanted courses of superior quality, involving more hands-on training, case studies, personal feedback, live instructor-led classes that they can attend remotely, and we provided that. Our students wanted us to help them with career opportunities and we did that. Our competitors were not willing to do much of what we did because that increases operations big time and reduces profitability. We didn’t care, we wanted to solve the real core problem of lack of skills that plague the legal profession. We were ready to lose our margin in order to create something that produces better results for the users, and that eventually put us in the market leader position in a matter of years. We have been multiplying every year since!
People wanted a solution that would reduce the time and uncertainty involved in learning practical skills in a new area of law, and we focussed on that problem instead of trying to give people government recognized or cheap certifications to mention in the CV as our competitors did. We moved the focus from certifications to actual skill training. And it worked spectacularly.
If we played the game everyone else was playing or tried to set up another law college, we would be in a very different situation today.
When you seek status, you see the most successful people around you and you try to get the same status. It is a grave mistake. It will prevent you from being successful altogether, and even if you succeed despite this misadventure, you would have walked a much longer and painful road.
When you seek opportunity, you do not care about status. You do not care about validation, and you are ready to invest your time and effort into ventures that others tend to overlook or ignore. You do not follow the herd, and therefore you are more likely to find the real opportunities that lead to outsized growth.
Most people want to join a big law firm or build one along the lines of a big law firm they have already seen, because they are chasing status. They miss the other opportunities which may lead to better growth and more earnings.
Did you really see if you can make more money working as a litigator in a small district court or doing tax law on your own? I know people who have done exactly that!
Most people are trying to become a senior advocate assuming that being a senior advocate will lead to more fees from clients! Whereas they may be totally ignoring or missing opportunities to grow their practices bigger and more successful in several other viable ways.
I also want to point out you that the behaviour and the choices of those who are seeking opportunity look very different from those who seek status.
For one, those who seek status only do what has already been done before, what is tried and tested. They aspire to replicate established models. However, they forget to account for the fact that they operate in a new environment and time, which affords different opportunities.
Those who seek opportunity make different decisions, as per the need of the hour. However, it is difficult to find exact examples and precedents that guide their decisions.
However, if you ask them why they are making a particular choice, they will give you very cogent reasons for this.
As you go through the reasons, you can identify that they are seeking opportunity and not status.
I invite you to consider if you are currently chasing status in your career, or truly seeking opportunities.
Examine the reasons why you want to make a particular career choice.
Is it because someone else who did this 20 years back is successful? Is it because a senior or a relative advised you to do this?
Or is it because you are aware of the opportunity that exists?
Do comment your answers below.
One of the questions we ask while designing any course is around the opportunities that will arise in that area. This is why you will find many novel and unconventional themes being covered in the syllabus of our courses.
Here are some courses that will open up incredible opportunities for you, check them out:
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 Shriya Sehgal, a first-year student pursuing BBA.LLB. from Symbiosis Law School, Noida. This is an exhaustive article dealing with the various kinds of evidence and includes important case laws.
Introduction
According to Section 3 of the Indian Evidence Act,1872 evidence means and includes oral and documentary evidence. Here, oral evidence refers to all the statements which the court permits to be made before it by the witness and such evidence should be related to the matter of fact under enquiry. Whereas, documentary or written evidence refers to all the electronic records presented before the court. This definition is considered to be a narrow definition as it doesn’t include material things, like a weapon; identification proceedings; local inquiry results; statements made in court; etc.
Kinds of evidence
Direct evidence
Direct Evidence is considered as imperative evidence for deciding the matter in the issue. It directly proves or disproves the fact. In such evidence, a specific fact is established directly without providing a reason to connect to the fact. One hardly needs to point out the illustration provided as the evidence of the witness in court is direct evidence as opposed to a testimony to a fact suggesting guilt.
Such evidence is real, tangible, or clear evidence of a fact that requires no thinking or consideration to prove its existence. However, relying on the evidence completely without any reasoning to prove its existence can be considered as a drawback as well. For instance, one may be prosecuted for perjury.
Circumstantial evidence
Circumstantial or indirect evidence refers to evidence which proves the facts in issue by providing other facts, that is, indirect facts and then proving their relevance. A satisfactory conclusion can be drawn from such evidence by relating a series of other facts to the facts in issue. Such indirect facts must have been associated with the facts in issue and have a cause and effect relation.
Under the Indian Evidence Act, “circumstantial evidence” is covered under the expression “relevant facts”. Here, “relevant facts” need to be proved by direct evidence which includes oral or documentary evidence.
Hanumant v. The State Of Madhya Pradesh
In this case, the first appellant held the post of excise commissioner whereas the second appellant held the post of a chemical engineer. Both of them were convicted and sentenced for the offence of criminal conspiracy, abetment, and forgery. There was no direct evidence to support them therefore circumstantial evidence was used.
It was stated that while dealing with circumstantial evidence there is always a possibility that suspicion might take the place of legal proof. In cases where the evidence is circumstantial in nature then such evidence should be completely established and should be consistent with the theory of the guilt of the accused.
Thus, the Supreme Court of India acquitted the appellants as the evidence produced was insufficient to prove the guilt of the accused beyond all reasonable doubt.
Ashok Kumar v. The State Of Madhya Pradesh
In this case, an appeal was made against the finding of the accused as guilty of the murder of his wife. However, it was argued by the appellants the entire prosecution was based on alleging circumstantial evidence and there was no eye witness. It was held in this case that the circumstantial evidence must satisfy the following facts:
The circumstances from which an inference of guilt is sought to be drawn must be firmly established;
The circumstance should be of definite tendency and undoubtedly point toward the guilt of the accused;
The circumstance should be incapable of explanation of any reasonable theory that saves the accused from the guilt.
Thus, the appeal was successful and the accused-appellants were accused of the charge. They were given the benefit of the doubt as the circumstantial evidence couldn’t fulfil the above-mentioned conditions.
Analogical evidence
Analogical evidence is underutilised evidence and usually comes in to play at the end moment. It saves the day when one doesn’t have statistics to refer to or any other matter to quote.
Anecdotal evidence
Anecdotal evidence refers to evidence which is based on a person’s observation of the world. Personal observations can also be useful for introducing as well as building up a topic. Such observations must be supported with statistical evidence to ensure the validation of such observation.
It is another underutilised type of evidence, which is generally considered as untrustworthy and meaningless. However, it can be beneficial for disproving generalisations by coming up with an appropriate example for contradicting a claim. The same can also be used to support claims.
Character evidence
Character evidence is an important type of evidence for determining the guilt of a person. This practice is being used since time immemorial. The character of a person is a general quality which is the summary of his/her past actions, whether good or bad. The same is considered to be vague and subjective. For instance, a person with ‘good character’ may be considered as a trustworthy and decent person, however, there is not any universal measure for the same. Moreover, it is not impossible for such a person to commit a heinous crime. Sometimes, the material evidence is covered by the character evidence. Such evidence may be proved where it is an imperative issue in a dispute, such as defamation.
There is minimal difference between character and habits. Habit is consistent and specific. Character refers to a person’s personality or character trait whereas habit is what a person does habitually or regularly. It doesn’t describe a personality or character trait of the person, but something he or she does habitually, or regularly. For instance, if the person visited a specific coffee shop every morning for years then such fact can be used as evidence that he was probably at the coffee shop when it was robbed in the morning. Sometimes it’s hard to make a distinction between the two as they can be used interchangeably.
Such evidence can’t be used to prove that the person acted in compliance with a particular character trait on a specific occasion in a civil suit as well as a criminal case.
Demonstrative evidence
Demonstrative evidence refers to evidence that is shown to the judge (and in some case, jury as well) in litigation. This evidence is neither testimony nor substantive evidence. Generally, it includes charts, diagrams, demonstrations and illustrations of the testimony of a witness.
Such evidence should not be harmful or detrimental but should assist in proving something. It is admissible only when it fairly and accurately reflects the witness’s testimony. Witnesses create such evidence at trial. The same set of evidence can be used by the opposing counsel in order to prove contrary positions.
Examples of demonstrative evidence include:
charts,
timelines,
scale models,
photo enlargements,
maps,
diagrams of a crime scene,
animation,
film or video,
checklist exhibits,
sample product display, or
anything similar designed to help the judge or jury better understand the case.
Digital/Electronic evidence
Originally, digital or electronic type of evidence was not mentioned or covered under the definition of evidence. However, the definition of evidence was amended by the Information Technology Act, 2000 to include ‘electronic records’ within the same. An electronic record includes record generated, data generated, the image stored, sound stored, or any information received or sent in an electronic form.
Such evidence must be collected with a reasonable and least objectionable means. The manner of the collection depends upon various factors, such as:
System configuration encountered,
Type of investigation, and
The evidence should be relevant to support the investigation.
The examiner must be aware of the specific electronic data that is required for the investigation. He/she must be prepared to address the obstacles that arise during electronic evidence collection.
An electronic record means data, record, data generated, image stored, sound stored, or any information received or sent in an electronic form.
Sivrajbhan v. Harchandgir
In this case, it was stated that the word evidence in connection with Law includes all agreements except which prove or disprove any fact or matter whose truthfulness is presented for Judicial Investigation. In other words, when the parties involved don’t get the opportunity to cross-examine the statements to ascertain the truth then such a statement does not amount to evidence.
Thus, electronic evidence can be considered as a valid form of evidence.
Documentary evidence
‘Document’ is defined in Section 3 of the Indian Evidence Act. Documentary evidence refers to any matter described or expressed upon any substance by means of letters, figures or marks or by more than one means which can be used for recording the matter.
Such evidence is produced in the form of a document in order to prove a disputed fact. Essentials or subject-matter of documentary evidence are as follows:
how the contents of a document are to be proved.
how the document is to be proved to be genuine.
how far and in what cases the oral evidence is excluded by documentary evidence.
Exculpatory evidence
Exculpatory comes from the word ‘exculpate’, which comes from two Latin words ‘ex’ meaning from and ‘culpa’ meaning blame.
Exculpatory evidence refers to evidence which discharges the defendant and helps them to establish their innocence, thus proving him/her not guilty. In reality, the prosecutor, as well as the defence attorney, gather evidence to make their case. The prosecutor needs to turn over the evidence to the defence attorney before he uses it to prove the defendant as not guilty. In case he fails to provide the defence attorney with the same, the case can be dismissed or retired, thus proving the defendant innocent. In other words, any evidence which is favourable to the defendant is considered to be exculpatory evidence.
Certain evidence can confuse the prosecutor when the evidence doesn’t directly exculpate the defendant. However, any evidence that points towards the innocence of the defendant is considered to be exculpatory. For example DNA evidence on a knife in a murder case
DNA evidence could be either inculpatory or exculpatory, depending on the test results.
Forensic evidence might lead to crucial investigative leads. Such evidence help in looking at and analysing things that cannot be seen with the naked eye. It varies from the type of crime one is investigating. For instance, in the case of a vehicular burglary, the DNA or fingerprints can be traced. Here DNA (deoxyribonucleic acid) is the founding block of all human beings. Investigators can find preparatory DNA in biological evidence found at a crime scene.
Forensic evidence can be divided into two categories, that is, physical evidence and biological evidence. Physical evidence refers to non-living or inorganic matter such as fingerprints, shoe impressions, tire impressions, fibers, glass, drugs, bullets, paints, petroleum by-products, etc. on the other hand, biological evidence includes blood, hair, saliva, urine, etc. it also includes botanical materials such as plants, wood, pollen, cocoons, etc.
Hearsay evidence
Hearsay evidence refers to evidence which the witness has neither personally seen nor heard. It is just reported by the witness and considered to be very weak evidence. In other words, it refers to something that others have said or heard. There are no set standards to receive such evidence provided it has reasonable credibility and nexus. In the absence of such credibility and nexus, it is difficult and dangerous to act upon such evidence. Thus, such a piece of evidence cannot be used if its credibility is not assured and questioned.
Such evidence is often rejected as they are considered to be irrelevant. They are inadmissible because the witness has neither personally seen nor heard. The witness has not perceived the evidence through his senses but has come to know about it through the third person.
Balram Prasad Agrawal vs The State Of Bihar & Ors
In this case, a young married woman named Kiran Devi, daughter of the appellant-complainant, who is alleged to have been murdered by the respondent-accused or to have been forced to commit suicide by falling in a well situated on the backside of the house of the accused. It was said that the information obtained from their neighbours was completely hearsay evidence, however, the respondents were convicted on the basis of hearsay evidence.
It was stated in this case that the evidence of a statement made to a witness who is not himself called as a witness may or may not be hearsay, following are the possible situations:
It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement.
It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement but the fact that it was made.
The fact that the statement was made quite apart from its truth is relevant in considering the mental state and conduct of the witness or a person in whose presence these statements were made.
Physical evidence
Physical evidence refers to any evidence which is found at the crime scene. It includes fingerprints, cut marks, tool marks, handprints, footprints, etc. According to the American Academy of Forensic Sciences (AAFS), it refers to anything that needs a microscope to view something that cannot be seen by the naked eye.
Examination of such evidence can be conducted by various methods such as:
Making impressions in plaster;
Lifting fingerprints from the objects encountered;
Taking images of marks.
The examination of such evidence is imperative for forensic analysis. Identifying the alterations is one of the main purposes of such examination.
Later, such evidence can be used to identify and compare the situation, like method or technique used by the defendant to harm the plaintiff, type of manufacturing method used to manufacture the murder weapon or any other tool. With the help of advanced technology, the specialist can also recover the text damaged by accident or on purpose.
Prima facie evidence
Prima facie evidence refers to the evidence whose existence is questionable but at the same time, it establishes a fact. The existence of such evidence cannot be questioned until it is rebutted. It is also called as presumptive evidence as it is sufficient to raise a presumption of the truth of a fact until and unless it is argued and rebutted.
Such evidence is sufficient to establish a basic fact. For instance, the performance of people can be considered as discriminatory, if white people perform better than black people.
Statistical evidence
Statistical evidence refers to the data which people search or investigate for the purpose of proving a particular point. Such evidence measures the strength of the evidence. Every time one uses numbers to prove a point or establish a fact he/she tends to use statistical evidence.
Examples of statistical evidence are:
Restaurants stating the fact that they serve one million people per year;
Two million migrants have crossed the borders in a specific year;
Sugar-free chewing gums are recommended by eight out of ten dentists.
Testimonial evidence
Testimonial evidence refers to evidence used to prove a particular point by testimony to the courts. Testimony can be either spoken or formal written statements.
In certain cases, the testimonial evidence is inadmissible in a court of law. The courts will decide whether or not such evidence is relevant to the case on the basis of facts and proficiency. In the following cases the evidence will not be allowed:
If it is misleading and wastes the time of the court;
If it is unfair and detrimental;
If it comes from the information between the attorney and the client;
If it is not actually provided by an expert witness. For example, a doctor is called for the testimony, however, a nurse appears as a witness.
Judicial evidence
Judicial evidence refers to evidence received by the court that proof or disproof the facts. Such evidence includes:
Confessions of accused in a court of law;
Statement of witnesses in a court of law;
Documentary evidence and facts presented for examination by the court.
Non-judicial evidence
Non-judicial evidence primarily refers to the confession made by the accused outside the court of law and in the presence of any person. If such evidence is proved in the court of law then it takes the form of judicial evidence.
Primary evidence
According to Section 62, primary evidence is considered to be the topmost class of evidence. Such evidence is an original document that needs to be submitted before the court for inspection. Moreover, it is admissible without any prior notice.
Such evidence must be presented before the court before the secondary evidence. Moreover, secondary evidence can be presented only in the absence of primary evidence by explaining the reason for the absence of such evidence.
Secondary evidence
According to Section 63, secondary evidence is considered to be an inferior type of evidence. It implies, that even after producing secondary evidence one needs to produce primary evidence in order to fill in the gaps. Such evidence can be presented in the absence of the primary evidence, however, the notice of the same is to be given.
However, if the secondary evidence is accepted without any objection within a reasonable time then the parties do not have the right to argue that the point was proved with the help of secondary evidence and not primary evidence.
Real evidence
Real evidence is also known as material evidence. It is tangible evidence that the court can examine for itself. It is presented before the court by inspection of a physical or material object. Such evidence is not derived from a document or witness. However, such evidence needs to be supported by a witness, preferably an expert witness who can explain the significance of evidence.
Real evidence includes:
Material object (murder weapon, in a murder case);
Photographs (position and state of the deceased body, in a murder case);
Video recordings;
Out of court inspection;
Person’s behaviour and appearance.
Oral evidence
Oral evidence refers to evidence which is confined to the words spoken by mouth. It is sufficient to be proved without any documentary evidence provided it is creditworthy. Chapter IV of the Indian Evidence Act, 1872 deals with the provisions of oral evidence. If a statement is contradictory to the previous statement, then the oral evidence may be considered as doubtful.
Certain kinds of contracts or grants can be created orally. Thus they do not require any document, such as:
A sells his cat for Rs. 1000 to B.
A wants to mortgage the cat for Rs. 1000 to B.
A pays Rs.1000 to B and takes back the possession of the cat.
However, there are many documents that need to be necessarily written and registered. Also, the best evidence is the one which is reduced to documents.
Scientific/Expert/Trace Evidence
Scientific evidence is generally referred to as empirical evidence. Such evidence is gathered from scientific research which requires a lot of investment of time and patience on the part of the researcher. In order to be recognised as evidence, such research needs to be done and established according to the set standards.
Scientific research primarily relies on data and it is the responsibility of the researchers to ensure that such data is true. Thus, the research can be conducted ethically and safely only if the data is collected and analysed properly.
For instance, if the research involves environmental process then the test and control should be carried out under natural conditions. If it is practically impossible to do so then lab-based studies can also be used.
The ability to admit scientific evidence, however, is at the discretion of the presiding judge. The judge may consider various factors, such as:
The validity of the evidence;
The credibility of the science behind it;
How influential evidence is during the case.
Scientific evidence is relevant in cases where conventional forms of crime have assumed immense proportions.
Substantive and corroborative evidence
In layman language, substantive refers to something considerable, that is, to have a strong base. Whereas, corroborative refers to something that needs to be more considerable.
Substantive evidence is the evidence on the basis of which a fact is proved and which requires no corroboration. On the other hand, corroborative evidence is the evidence used to make substantive evidence more concrete. Both the evidence are either direct or circumstantial or both.
The significance of corroborative evidence depends on substantive evidence. In other words the existence of corroborative evidence depends on substantive evidence.
Difference between direct and circumstantial evidence
BASIS
DIRECT EVIDENCE
CIRCUMSTANTIAL EVIDENCE
ESTABLISHMENT OF FACT
It establishes a fact directly.
It requires a judge or jury to establish a fact indirectly via judgment or inference.
ABSOLUTE
It is absolute evidence.
It is not absolute evidence.
PROBATIVE VALUE
It has more probative value than circumstantial evidence.
It has less probative value than direct evidence.
RELIABILITY
It is less reliable than circumstantial evidence.
It is more reliable than direct evidence as it is more subjective.
Difference between primary and secondary evidence
BASIS
PRIMARY EVIDENCE
SECONDARY EVIDENCE
STATUS UNDER INDIAN EVIDENCE ACT, 1872
Section 62 of the Act defines primary evidence.
Section 63 of the Act defines secondary evidence.
ORIGINALITY
It is an original document that is presented before the court of law for inspection.
It is not an original document.
SOURCE
It is the main source of evidence.
It is not the main source of evidence but an alternative source.
GENERAL RULE
It is the topmost evidence. Thus, it is a general rule to present such evidence.
It is not the best evidence and is used under exceptional circumstances. Thus, it is not a general rule to present such evidence.
NOTICE
Notice is not required to present such evidence.
Notice is required to present such evidence.
ADMISSIBILITY
It is itself admissible.
It is admissible only in the absence of primary evidence.
Difference between inculpatory and exculpatory evidence
BASIS
INCULPATORY EVIDENCE
EXCULPATORY EVIDENCE
FAVOURABLE
It is favourable to the defendant in a criminal trial.
It is favourable to the prosecution in a criminal trial.
SPECIAL RULES
There are no special rules for such evidence.
There are special rules for such evidence.
MISTRIAL
There is no such provision for inculpatory evidence.
If such evidence is not shared with the defence the case can be dismissed and a mistrial can be claimed.
EXAMPLE
If a man is stabbed to death by a knife and the knife is found in possession of the deceased’s wife then that knife will be considered as inculpatory evidence against the wife.
If a man is stabbed to death by a knife and the DNA evidence on the knife links another individual to a crime it then will be considered as exculpatory evidence against that individual.
Difference between judicial and non-judicial
BASIS
JUDICIAL EVIDENCE
NON-JUDICIAL EVIDENCE
LOCATION
Such evidence is presented inside a court of law.
Such evidence is presented outside a court of law.
PRODUCED BEFORE
Such evidence is produced before the judge or jury or both.
Such evidence can be produced in front of any person.
CONVERTIBILITY
Such evidence is not convertible.
Such evidence can be converted to judicial evidence if it is proved in the court of law.
EXAMPLE
Confession made by the accused inside the court of law.
Confession made by the accused outside the court of law.
Difference between oral and documentary evidence
BASIS
ORAL EVIDENCE
DOCUMENTARY EVIDENCE
STATUS UNDER INDIAN EVIDENCE ACT, 1872
Section 59 and 60 of the Act deals with such evidence.
It refers to the statement given by the witnesses in a court of law.
It refers to the documents presented in a court of law.
STATEMENT
It is a statement submitted in oral form.
It is a statement submitted via documents.
RELEVANT
If a statement contradicts the previous statement it is considered to be doubtful.
If it is not supported by primary or secondary evidence it is considered to be doubtful.
MEANS
It can be presented in the form of speech, voice or symbols for its recording.
It can be presented in the form of words, signs, figures, letters, and remarks for its recording.
Conclusion
Evidence is an imperative part of every case, whether it is a criminal case or a civil suit as it validates a fact. The facts can be used in evidence for deciding as well as proving the disputed facts. Evidence attaches weight to the facts quoted as evidence. Thus various types of evidence can be used for proving and disproving facts. Moreover, evidence helps in curbing down the time dedicated to a particular case. Thus, it can be concluded that the evidence is for judicial behaviour like the reasoning for logic.
The Law of Evidence, Batuk Lal, Central Law Agency
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This Article is written by Aman Garg, 2nd-year Law student pursuing B.A. LLB. at Gujarat National Law University.
Introduction
After almost 5 years when the Supreme Court recognized transgender as a third gender and more than a year after it decriminalized Section 377 of IPC, the President on Friday carried the legacy forward by signing the Transgender Persons (Protection of Rights) Bill, 2019. At the outset, the Bill seeks to make considerable progress to protect the rights of the Transgender Community by prohibiting discrimination against them with relation to education, employment, healthcare, access to government or private establishments, right to movement and so on. It acknowledges ‘Transgender’ as a distinct identity and further recognizes various offences against the community. Besides it also mandates for the establishment of National Council for Transgender Persons to look after the grievances of the Transgender people.
Despite these encouraging provisions, the transgender community has taken a vehement stand against the bill, with activists even calling it ‘draconian’ and ‘in violation of the Fundamental Rights’. This article reasons as to how the bill, instead of conferring rights to the transgender community, effectively legalizes the atrocities committed on them and continues to remain a sheer mockery.
Discrepancies in the definition of ‘Transgender’
Transgender are usually born with typical male or female anatomies but feel as though they’ve been introduced into the “incorrect body” as compared to Intersex people whose anatomy is not typically male or female as there is something ‘uncommon’ about their bodies. All Transgender people have an “internal encounter of gender identity” whereas only a limited number of intersex people experience these problems as the majority of them identify themselves as male or female rather than transgender or transsexual. The Bill, by including the Intersex community in the definition of Transgender, erroneously presumes that all persons with intersex variations identify themselves as transgenders. This is absolutely inappropriate as it dilutes the recognition and rights of the Intersex community.
Right to Self-determination
The Supreme Court in the landmark judgement NALSA v. Union of India (2014), held ‘Self-determination of gender to be an integral part of personal liberty under Article 21.’Considering the above judgement, the Bill erodes the right of Self-determination as it requires transgender persons to obtain a “Certificate of Identification” from the district magistrate so as to be recognized as a Transgender and enjoy the rights of the bill and an updated certificate may be obtained only if the individual undergoes surgery to confirm their sexual orientation. These provisions are in direct violations of the principles laid down by the Supreme Court in NALSA judgement, that any requirement for SRS for declaring one’s gender is dishonourable and unconstitutional. Besides, these provisions are also antithetical to Global standards for legal gender identification, including United Nations agencies, the World Medical Association, and the World Professional Association for Transgender Health– that directs for severance of legal and medical procedures of gender identification for transgender people. Furthermore, if a transgender person is refused ‘Certificate of Identity’, the Bill does not dispense recourse for appeal or review of such decision. Thus in the name of granting rights to the community, they are being further exposed to institutional persecution dehumanizing their bodies and their identity.
Inconsistencies with Domestic Laws
The Indian Penal Code was amended in 2013 to recognise specific offences against women, including acid attacks, sexual harassment, voyeurism, stalking and disrobing. While transgender people frequently encounter such equivalent offences, and distinct abominations including coerced gender conventionalism, hormonal treatment and surgeries, stripping, etc., the Bill does not fully recognise the same and does not furnish for punishment commensurate with their gravity. In case of any ‘Sexual abuse against Transgenders,’ the Bill stipulates maximum punishment of only 2 years, as opposed to a minimum of 7 years for ‘Sexual offences against women’. While prescribing different punishments for the same offence based on gender identity, the Bill does not stand up to the test of ‘Equality’ and thus violates the constitution itself.
Civil rights and Social Security
Taboo and social stigma have made Transgenders’ admission in education institutes almost prohibitive and have forced them to earn their livelihood through sex work, begging and dancing at events and thus it becomes crucial to provide them with education and employment opportunities. However, the bill is silent on granting opportunities of any kind to the community despite NALSA judgement directing the Govt. for affirmative action measure. Although the bill promises “inclusive education and opportunities”, it does not provide any roadmap for the same and falters in recognizing early stages of a transgender’s life.Will the Govt. educate existing teachers to help them inculcate inclusive methods of teaching or will it create a distinctive post for Transgender educators in every educational institute? Will, there be a change in school and college curriculums to make it comprehensive about LGBTQ+ Rights or will there be scholarships to the community at all levels of education for more prominent access to education? Another contentious issue is that, even after a historical judgement of the Supreme Court striking down the sodomy law and upholding privacy and consensual same-sex relations of LGBT community, the bill does not talk about civil rights like marriages, adoption, Succession, inheritance of property etc. which are significant to Transgenders’ lives and reality.Moreover, the bill unjustifiably neglects the atrocities and viciousness that transgender encounter within the family itself by debarring them from leaving the family and joining the trans- community, else be placed at a ‘rehabilitation centre’, which is a flagrant infringement of their fundamental right to be part of any association and reside in any part of the country. In fact, the word ‘rehabilitation’ is disempowering and patronizing as what transgender really need is recognition and housing assistance and not reclusion from society.
The Bill advances a ‘National Council for Transgender Person’ to advise the central govt. on legislation pertaining to the Transgender community, monitor such policies and review their impact on the community. With that being said, the proposed council is an unfettering joke on the aspirations for a responsible and accountable oversight body as it hordes a slew of 33 members with a limited representation of only 5 transgenders, leading to loss of democratic representation and engendering endless ‘confusion worse confounded’ among the numerous members. Further ambiguity pervades in the council as no guidelines are provided for redressing the grievances of the community. Will the council assist the transgender in approaching the court or is it empowered to punish the perpetrator independently? With the establishment of a National council and not State councils, the bill has also utterly disregarded ‘Geographical remoteness’ and ‘accessibility of resources’ as contributing factors in approaching the Council for redressing their grievances.
Conclusion
On one hand where the Courts are persistently endeavouring to uphold the rights of LGBTQ+ Community, on the contrary, the legislature is diluting the same by introducing bills incongruous to its very aspiration. It is high time the Govt. realize that laws should be in accordance with the landmark judgement of the Supreme Court on Transgender rights; else the community will continue to face problems ranging from social exclusion to discrimination and no progress would be achieved even after the enactment of the debilitating law.
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This article is written by Akella Poornima, a 2nd yr law student of LL.B 3 yrs, Symbiosis Law School, Pune. This article talks about the Mines Act in detail; its functionalities, workings, and scope in our country.
Introduction
India has a cultural history of contributing most of its economy through ‘Mining’. A country with 80 percent being produced by public sector companies and rest by private companies; legislation was needed to regulate and examine the scams or haphazard prevailing in the mining industry. Therefore, the Central Govt in 1952 and in 1957, simultaneously promulgated The Mines and Minerals (Development & Regulation) Act and The Mines Act.
Aims, Objects, and Commencement
To understand the aims, objectives, and limitations of this Act, it is necessary to define what ‘Mines’ are called. Sec 2(i) of the Act defines ‘Mines’ as any kind of evacuations or extraction operated upon earth’s crust in order to obtain minerals.
Hence, the basic objective of the Act is to provide labour and safety of the mines as well as to amend and regulate the legislation for the betterment of labourers and workmen employed in it.
The regulatory framework of the mining industry is taken care of by both central and state governments. Generally, there are two types of minerals. One is called ‘Major minerals’ and another is called ‘Minor Minerals’. Policies are made in relation to the exploration, extraction, and process of all minor minerals (such as building stones, clay, and sand) by State Governments whereas, the federal government takes the charge of revision, fixing of royalty, issuing regulations, etc of major minerals.
‘The Ministry of Mines’, an apex body that is handled by the Government of India is responsible for legislation in regards to the mining sector, its policy formulation for proper functioning and administration of mines and minerals in the country. It is principally composed of four departments namely:
The Geological Survey of India (GSI);
The Indian Bureau of Mines;
The Controller of Mining Leases; and
The Directorate General of Mines Safety.
Exemptions
The said Act does not apply to any excavations or digging made for the purposes of prospecting and not for the purposes of extracting minerals. In lay-man words, the objective of extracting minerals is important to determine any activity under this Act. Also, minerals should be extracted for the purpose of commercial use or sale of it.
Again, if the Central Government deems to see it fit to change or alter any of the class of the workers or the mines or the part of it or the ground in relation, it can do it with the passing of such change in a gazetted notification.
References to time of day
“The references to the time of the day” in the Act is referred to as the Indian Standard Time, being five and a half hours ahead of Greenwich Mean Time. The Central Government holds the scope of doing any alterations in this regard. Also, the Central Government can set out rules for any part of the country where the Indian Standard Time is not ordinary observed.
Inspectors and Certifying Surgeon
Chief Inspector and Inspectors
The Central Government can appoint any person it feels to see fit to be eligible for the post of ‘Chief Inspector of Mines’ for all the territories in the country to which the Act extends whereas any such person who has an interest in any mining activity or mining rights in India (either directly or indirectly) should not be made to have any such post of importance.
Further, according to the Act, the District Magistrate can exercise the powers and perform the duties of an Inspector (exceptional to the general or special orders of the Central Government).
Functions of Inspectors
The Chief Inspector can prohibit or restrict any Inspector/s from any powers conferred upon them under the said Act and can decide upon the local area/s within which Inspectors will be limited to exercise their respective powers. But, very much the Inspectors are required to give the information of the area under which their duty of work prevails; to the owners, agents, and managers of mines.
Powers of Inspectors of Mines
The Chief Inspector and/or Inspector/s can conduct examination or inquiry, whatever they feel to see fit; to ascertain different provisions of this Act for a proper understanding of what all are reasonable actions to be taken and which, do not impede or obstruct the working of any Mine.
Inspectors can also examine and inquire about the state and condition; the ventilation of the Mine; the sufficiency of the bye-laws in relation; and all matters and things connected with the health, safety, and welfare of the persons employed in the mine.
Inspectors can also exercise all the powers prescribed by the Central government to them in this regard.
A case where an offence under this Act has been committed:
A search of any such place and possession in relation; and
to any register or other record appertaining to the mine etc.
can be done by the Chief Inspector or any Inspector. He may search or seize under this Act with a warrant issued legally.
Powers of the special officer to enter, measure, etc
The special officer might enter the mine and survey, level or measure the mine at anytime he feels important, but in such a case, he is obligated to give a minimum of three days’ notice to the Manager of such mine where he wishes to enter or introspect. Whereas, in case of any emergency arisen in the opinion of Chief Inspector or any Inspector related to the mine; an order in writing may authorize any person to enter into the Mine without giving any notice.
Facilities to be afforded to Inspectors
All reasonable facilities for entering, inspecting, surveying, measuring, examining or inquiring under this Act is required to be facilitated by every owner, agent and manager of the mine to the Chief Inspector or any Inspector.
Facilities to be provided for occupational health survey
The owner, agent or manager of the mine is required to afford all necessary facilities to such Inspector or officer such as:
The examination and testing of plant and machinery;
The collection of samples and other data related to the survey; and
The transport and examination of any person employed in the mine chosen for the survey etc.
Further, the total time spent by any person employed in any mine (who is working for examination in the safety and occupational health survey) should be counted towards his working time, also acknowledging any overtime he is working for, to be paid at the ordinary rate of wages. The “ordinary rate of wages” means the basic wages added to any dearness allowance, underground allowance, and compensation in cash.
The owner, agent or manager under his cost should make any person undergo a medical treatment who on examination is found medically unfit to discharge the duty of which he was discharged in a mine.
In the case where after the medical treatment, a person is declared medically unfit to discharge a duty he was discharged in a mine, in such a case the owner, agent, and manager is required to provide such person with alternative employment in the mine for which he is medically fit. Such a medically unfit person will also be paid by the owner, agent, and manager; a disability allowance determined in accordance with the rates prescribed. In the case where such a person decides to leave his employment in the mine, he has to be paid by the owner, agent, and manager, a lump sum amount by way of disability compensation determined in accordance with the rates prescribed.
Secrecy of information obtained
All copies, extracts, registers or other relevant records of any mine, should be regarded as confidential and should not be disclosed to any person or authority unless the Chief Inspector or the Inspector considers such disclosure necessary. Also, any person functioning in contradiction in the course of his duty, shall be made liable to the punishment with imprisonment for a term extending to one year, or with fine, or with both(imprisonment and fine).
Also,only with the previous sanction of the Central Government, the court should proceed to any trial in this regard.
Certifying surgeons
The Central government appoints qualified medical practitioners to be certifying surgeons. The central government may also impose, a certifying surgeon authorizing him to exercise his powers.
Any person, who is an owner, an agent or a manager of the mine and who is directly or indirectly (interested in any business carried or in any patent or machinery connected or is in the employment of mine) will not be appointed or authorized to exercise the powers of a certifying surgeon.
Also, the certifying surgeon is mandated to carry out his duties regarding the examination and certification of adolescents, persons who are engaged in a mine in dangerous occupations, etc exercising the medical supervision for any mine where cases of illness have occurred or are likely to cause health injury.
Committees
‘The Ministry of Labor and Employment’, under the Government of India, constitutes a committee to handle the powers and functions with respect to the said act. The committee constitutes of a chairman and its members who look after taking the decisions regarding various functionalities to the territory this act extends and most of the time its decision is considered final and binding.
Functions of the Committee
A Committee should be constituted which will look after:
proposals, for making rules, regulations, and recommendations for the Central Government;
enquiring into accidents or other matters which are referred to it by the Central Government and make reports upon; and
hearing and deciding appeals or objections against notices or orders or the regulations, rules or bye-laws thereunder.
2. The Chief Inspector is not supposed to take part in the proceedings of the Committee regarding any appeal or objection against an order or notice made or issued by him or act in relation to any matter pertaining to such appeal or objection as a member of the Committee.
Powers, etc., of the Committees
A Committee is constituted should be exercise the powers of an Inspector for discharging its functions, have the same powers as are vested in a court under the Code of Civil Procedure, 1908 (5 of 1908) when trying a suit in respect of the following matters, namely:
discovery and inspection;
enforcing the attendance of any person and examining him on oath;
compelling the production of documents; and
such other matters as may be prescribed.
Recovering of Expenses
The Central Government can direct all the expenses of any inquiry conducted by a Committee constituted to be borne by the owner or agent of the mine concerned. The amount so directed is paid on application by the Chief Inspector or an Inspector to a magistrate having jurisdiction at the place where the mine is situated or where such owner or agent is for the time being resident.
Mining Operations and Management of Mines
Notice to be given of mining operations
The owner, agent or manager of a mine is required to give notice in writing containing particulars of the mine to the Chief Inspector, the controller, Indian Bureau of Mines and the District Magistrate in which the mine is situated, before the commencement of any mining operation.
Such notice should reach the persons concerned for at least one month before the commencement of any mining operation.
Managers
Every Mine is required to have a sole manager who will have the prescribed qualification for holding a post of that importance and the owner or agent of every mine shall appoint a person having such qualification to be the manager. Further, the owner or agent may appoint himself also as manager if he possesses to have such prescribed qualifications.
The manager has to take responsibility and also, he can be held liable for the overall management, control, supervision and direction of the mine and all instructions when given by the owner or agent.
In case of an emergency, the owner or agent of a mine or anyone on his behalf shall not give, otherwise without the consent of the manager any kind of instructions affecting the fulfilment of his statutory duties, to a person, employed in a mine, who is responsible to the manager.
Duties and responsibilities of owners, agents, and man
For making financial and other provisions and for taking such other steps, the regulations, rules, bye-laws, and orders, etc to make the Managers, owners, and agents of such concerned mine are held responsible.
The responsibility of the matters in this regard is provided in the rules made which shall be exclusively carried out by the owner and agent of the mine and by such person (other than the manager) whom the owner or agent may appoint for securing compliance with the aforesaid provisions.
In carrying out any instructions given or otherwise given through the manager, if results in the contravention of the provisions of this Act or of the regulations, rules, bye-laws or orders made, every person giving such instructions will be obligated to be held liable for the contravention of the provisions concerned.
A person shall be deemed to be guilty of contravention when it is proved that he had used due diligence to secure compliance and had taken reasonable means to prevent such contravention.
If it appears on inquiry and investigation, that any such person is not prima facie liable, he must not have proceeded against any inquiry or investigation.
There shall not be any defence in any proceedings brought against the owner or agent of a mine stating that the manager and other officials have been appointed in accordance with the provisions of this Act or that a person to carry the responsibility has been appointed.
Effective arrangements should be there in every mine to provide and maintain good content and a sufficient supply of cool drinking water at suitable points for all persons employed there. For all persons employed below the ground, the Chief Inspector should, in lieu of drinking water, provide, maintain or permit suitable points for any other effective arrangements.
Also, all such points shall be legibly marked ‘Drinking Water’ in a language understood by a majority of the persons employed in the mine and no such drinking point shall be situated near any washing place, urinal or latrine.
The Central Government can make rules for securing compliance with the provisions of the supply and distribution of drinking water with respect to all mines or any class or description of mines.
Conservancy
There shall be a sufficient number of latrines and urinals provided separately for both males and females in every mine.
Further, all latrines and urinals provided should be adequately lit, ventilated and at all times maintained in a clean and sanitary condition.
The Central Government can specify the total number of latrines and urinals to be built in any mine with respect to the number of males and females employed in the mine.
Medical appliances
First aid boxes should be provided in every mine to be readily accessible during all working hours.
Every first-aid box has to be kept in charge of a responsible person, who is medically trained in the first-aid treatment of any kind of hurt which can cause in the course of employment and who will always be readily available during the working hours of the mine to treat such suffered workers.
Arrangements have to be done beforehand, for the conveyance to hospitals or dispensaries, of persons who while in employment in the mine, suffer any kind of bodily injury or become ill.
In every mine where more than one hundred and fifty persons are employed, a maintained first-aid room of such size with such equipment and in the charge of such medical and nursing staff as may be prescribed.
Powers of Inspector when causes of danger not expressly provided against exist or when the employment of persons is dangerous
The chief inspector or an inspector, by giving notice to the owner, agent or manager of the mine can state the particulars about the threat which he can foresee or defect he has discovered in any mine or part of it, in order to control, supervise, manage or direct the danger and can rectify the threat causing any kind of bodily injury.
In the case where the owner, agent or manager fails to comply with the terms of notice, the Chief Inspector or the Inspector, through his writing, can prohibit the employment of any person for ensuring compliance in any manner in any mine.
The Chief Inspector or the Inspector through his writing can also prohibit the extraction or reduction of pillars or blocks of minerals in any mine if he discovers the continuance of such work to be endangering the mine or the people employed there.
Every person who is prohibited from employment in such hazardous conditions is entitled to get paid with full wages as if they were in term with work they would have done otherwise and the payment should be done by the owner, agent, and manager of the mine or part of the mine. Also, in such case, such manager, agent or the owner can provide the worker with alternative employment at the same wage allowance than paying full wages to such worker who has been prohibited to work.
If the owner, agent or manager of the mine objects to a notice sent by the Chief Inspector or an order made by the Chief Inspector he may, within twenty days after the receipt of the notice containing the requisition or of the order or after the date of the decision on appeal, whatever the case be, can send his objection in writing stating the grounds there to the Central Government which shall, ordinarily within a period of two months from the date of receipt of the objection, refer the same to a Committee.
Also, Nothing with respect to the powers of Inspectors or Chief Inspectors will affect the powers of a Magistrate under section 144 of the Code of Criminal Procedure, 1898.
Power to prohibit employment in certain cases
In a situation, where any owner, agent or manager fails to comply with the provisions laid in this act in matters relating to safety; the Chief Inspector can give notice in writing stating the same to comply within the time limit he wishes to specify in the said notice.
Every person whose employment is prohibited is entitled to payment of full wages for the period for which he would have been, but for the prohibition, in employment, he couldn’t fulfil his course of work, and the owner, agent or manager shall be liable for payment of such full wages of that person. The owner, agent or manager instead of paying such full wages, can provide such person with alternative employment at the same wages with which such person was receiving in the employment which was prohibited.
Notice to be given of accidents
Whenever an accident occurs in a mine, causing loss of life or serious bodily injury, or an outbreak of fire or such similar rush of the cause, or an influx of inflammable or noxious gases, or a breakage of ropes, chains or other gear by which persons or materials are lowered or raised in a shaft or an incline, or an overwinding of cages or other means of conveyance or a premature collapse of any part of the working, or any other accident which may be prescribed in such case, the owner, agent or manager of the mine is obligated to give notice of the occurrence to such authority in a form and within desired time, and as well as he shall simultaneously post one copy of the notice on a special notice board in the prescribed manner at a place where it may be inspected by trade union officials, ensuring that the notice is kept on the board for not less than fourteen days from the date of such posting.
Power of Government to appoint a court of inquiry in cases of accidents
If in the opinion of the Central Government, a formal inquiry is needed into the causes and circumstances attending the accident ought to be held; an appointment of a competent person to hold such inquiry should be done and may also be appointed one or more persons possessing legal or special knowledge to act as assessor or assessors in holding the inquiry.
The person appointed to hold any such inquiry shall have all the powers of a civil court under the Code of Civil Procedure, 1908 (5 of 1908), for the purpose of enforcing the attendance of witnesses and compelling the production of documents and material objects.
Any person holding such inquiry may exercise the powers of an Inspector under this Act as he thinks it necessary or expedient to exercise for the purposes of the inquiry held.
The person holding an inquiry is supposed to make a report to the Central Government stating the causes of the accident and its circumstances and adding any observations which he or any of the assessors may think fit to make under their observation.
Notice of certain diseases
Where any person employed in mine contracts any disease notified by the Central Government as a disease connected with mining operations, the owner, agent or manager of the mine, in such case, are obligated to send a notice to the Chief Inspector and to such other authorities, in the desired form and within the desired time.
And If any medical practitioner attends on a person who is employed in a mine and who is or is believed by the medical practitioner to be suffering from any disease, the medical practitioner should without delay send a report in writing to the Chief Inspector stating:
the name and address of the patient;
the disease from which the patient is suffering or diagnosed, and
the name and address of the mine in which the patient is or was last employed.
After this report has been sent, the Chief Inspector is required to pay the medical practitioner such fee as prescribed, and the fee so paid shall be recoverable as an arrear of land revenue from the owner, agent or manager of the mine in which the person contracted the disease.
Further, If any medical practitioner fails to comply with the provisions, he shall be punishable with fine which may extend to fifty rupees.
Power to direct investigation to cause of disease
The Central Government can appoint a competent person to inquire into and make a report of it on any case where a disease has been or is suspected to have been contacted in a mine, and may also appoint one or more persons possessing legal or special knowledge to act as assessors in such inquiry.
Publication of reports
The Central Government can cause any report submitted by a Committee or any report of extracts from any report submitted to it and will cause every report submitted by a Court of inquiry to be published at such time and in such manner as it may think fit.
Hours and Limitation of Employment
A weekly day of rest
A person is required not to work in any mine for more than six days in any given week.
Compensatory days of rest
A person employed in any mine who in the course of his duty, is deprived of any of the weekly days of rest, then in such circumstances, they will be allowed to rest for such extra work done, within a month or two months immediately following that month, as compensatory days of rest equal in number to the days of rest of which he has been deprived.
Hours of work above ground
Any person (above 18 years of age) who is employing in the above-ground in any mine, is not required as well as not allowed to work for more than forty-eight hours in any given week or for more than nine hours in any day provided.
To facilitate the change of shifts, or to enhance the production of work; the daily maximum hours specified may exceed.
The arrangement of work of any such person should be in a way that –
He/she gets ample time of leisure hours to take rest.
For any such person, the working hours should not exclude more than 12 hours every day.
He/she should not work for more than five hours continuously and in case of five or more hours of work being done, there has to be an interval given for the rest of at least half an hour.
Also, the Chief Inspector under this act can impose conditions to permit work to extend for long hours but it should not be for more than fourteen hours a day.
Those who do two or more shifts should not be allowed to do the work of the same kind above ground at the same time.
Hours of work below ground
No adult who is employed below ground in any mine will be allowed to work for more than forty-eight hours in any week or for more than eight hours in any day with a condition that the chief inspector may exceed the working hours, if he deems it fit, to facilitate the change of shift.
Work shall not be carried on below ground in any mine except by a system of shifts, so arranged that the period of work for each shift is not spread-over more than the daily maximum hours.
A person employed in a mine shall not be allowed to be present in any part of a mine below ground except during the periods of work shown in respect of him in the register maintained
Night shift
For those who work for night shifts which extend to midnight:
a weekly day of rest is required for all such people who work at night shifts, which should not be not less than a period of twenty-four consecutive hours beginning when his shift ends.
The following day for him after his work will be considered to be a period of twenty-four hours beginning from when such night shift ends, and the hours he has worked after midnight should be counted in the previous day.
Extra wages for overtime
Where in a mine, a person works above ground for more than nine hours in any day, or works below ground for more than eight hours in any day or works for more than forty-eight hours in any week whether above ground or below ground, he will in respect of such overtime work, be entitled to wages at the rate of twice his ordinary rate of wages, for the period of overtime work being calculated on a daily basis or weekly basis, whichever is more favourable to him.
Where any person employed in a mine is paid on piece-rate basis, the time-rate should be taken as equivalent to the daily average of his full-time earnings for the days on which he actually worked during the week immediately preceding the week in which overtime work has been done, exclusive of any overtime, and such time-rate shall be deemed to be the ordinary rate of wages of such person.
The Central Government can prescribe the registers to be maintained in a mine for securing compliance with the provisions of the Act.
Prohibition of employment of certain persons
If a person is already working in any other mine preceding twelve hours of his duty, then in such case he should not be allowed to work or required to work further.
Limitation of daily hours of work including overtime work
Any person employed in any mine should work or allowed to work in the mine for more than ten hours in any day inclusive of overtime.
Notices regarding hours of work
A notice in the desired manner in desired language should be posted outside the office of the mine stating about the time schedules of commencement and end of work each day, by the manager of every mine.
Where proposal is made for any alteration in the time schedules with respect to work hours or criteria of work hours to decide, an amended notice in the prescribed form is needed to be posted outside the office of the mine in not less than seven days before this change is made to be obliged by workers of that mine, and a copy of such notice is required to be sent to the Chief Inspector in not less than seven days before such change.
Further, no one should be allowed to work in a mine otherwise than in consonance with this notice.
Supervising staff
Further, these rules may not apply to any such persons who by rules be defined to be, persons holding positions of supervision/ management/ employed in a confidential capacity.
Exemption from provisions regarding employment
In case of an emergency condition involving a serious risk to the safety of the mine/ persons employed there/ accident/ act of God or in case of any urgent work to be done to machinery, plant or equipment of the mine etc; the manager can permit some persons to be employed on such work as per necessity, to protect the safety of the mine or of the persons employed there.
The manager may take a permitted action, (even though the production of the mineral would be incidentally affected if that action been carried off), to overcome some irregularities of any machinery, plant or equipment, to avoid serious interference with the ordinary working of the mine.
Power to make exempting rules
The central government can make rules defining the exemptions, in different circumstances and subject to different conditions:
where an emergency threatening some serious risk to the safety of the mine or to the persons employed is foreseen there;
where a work of some preparatory or complementary nature is carried for the purpose of avoiding serious interference;
for persons who are engaged in urgent repairs; and
for persons employed in technical works and who must carry it continuously.
Employment of persons below eighteen years of age
After the enactment of the Mines (Amendment) Act, 1983, the law obligated the persons below eighteen years of age to be allowed to work in any mine or part related to it.
Any apprentices and other trainees (who are not below sixteen years of age) can still be allowed to work but under proper supervision. In such a case, the prior approval of the Chief Inspector or an Inspector is required to be obtained before they are allowed to work.
Power to require a medical examination
When a person is employed in a mine,(who is not an apprentice or trainee), is not an adult (above 18 years) or when a person employed in a mine as an apprentice or trainee, is either below sixteen years of age or is no longer fit to work; the Inspector in such case can serve the manager of the mine, with a notice stating that such person should be examined by a certifying surgeon and that such person should, if the Inspector directs, be not employed or permitted to work in any mine until he has been certified that he is an adult.
Every certificate granted by a certifying surgeon on a reference should be conclusive evidence of the matters referred here.
Prohibition of the presence of persons below eighteen years of age in a mine
Any person below eighteen years of age should not be allowed to be present in any part of a mine above ground where any operation connected with or incidental to any mining operation is being carried on.
Employment of women
No woman or female can be employed in any part of a mine which is below ground or above ground (except between the hours of 6 A.M. and 7 P.M.)
Also, every woman employed in any such mine working above ground is granted to be allowed an interval of eleven hours or even more, between the termination of employment on any one day and the commencement of the next period of employment.
Whereas, the Central Government can, vary the hours of employment of women working above the ground in any mine or class or description of mine. But the condition is that women should not be obligated to work from the hours between 10 P.M. to 5 A.M.
Register of persons employed
A prescribed form needs to be there for every mine as well as a place a registration for all persons employed where-
the name of the employee is to be written along with the name of his/her father, her husband (if married), and such other particulars which are necessary for the purposes of identification;
the age and sex of the employee who is going to work, the nature of his/her employment, and the date of commencement of his/her work has to be provided,
other particulars and the relevant entries authentication with signature or thumb impression of the person working.
Also, no person will be employed in any mine until the above-mentioned particulars are recorded in the register.
Leave with Wages
Application of Chapter
No person should be deprived of any right in any mine to which he is entitled under any other law or under the terms of any award, agreement or contract of service.
Leave defined
Leaves should not include the following which is prescribed to all the workers:
weekly days of rest provided to all workers; or
holidays for festivals given to all employees; or
Any other similar occasions whether occurring during or at either end of the period of leave.
The calendar year defined
A calendar year means a period of the year with twelve months, beginning with the first day of January every year.
Annual leave with wages
Every person who is employed in any mine and who has completed his one calendar year’s service will be said to be allowed, a leave with wages, calculated accordingly by, any person employed below the ground, at the rate of one day for every fifteen days of work performed by him or at the rate of one day for every twenty days of work performed by him, whatever is feasible.
Further, a calendar year’s service should get completed when:
a person employing below the ground in any mine puts in attendances for not less than one hundred and ninety at the mine; or
he has put in not less than two hundred and forty attendances at the mine during his course.
Any person who has not taken the leaves entitled to him in that prescribed calendar will get it added to the number of leaves granted in the succeeding year.
Any person in need of leaves to get granted is required to write about it, in not less than fifteen days, before the date he wishes to have. Only, in cases of illness of any kind, such a person can avail leave before fifteen days of intimation.
In a case, where a person employed in a mine is terminated by the owner, agent or manager of the mine (before he has taken the entire leave to which he is entitled to), or when a person applied for a leave but has not been granted, or when he quits his employment before he has taken all the leave, in such a case, the owner, agent or manager of the mine is required to pay him the amount payable in respect to the leaves not taken. Also, payment in such a case shall be made before the expiry of the second working day after the termination, and where a person himself quits his employment, on or before the next payday.
The unveiled leave of a person employed in a mine shall not be taken into consideration in computing the period of any notice required to be given before the termination of his employment.
Where a person employed in a mine is discharged or dismissed from service or quits his employment or is superannuated or dies while in service, in such a case, he or his heirs or his nominee, shall be entitled to wages in lieu of leave due to him.
Payment in advance in certain cases
Any person employed in any mine who has been allowed to take leave for not less than four days is required to before his leave begins, be paid the wages due for the period of the leave allowed.
Mode of recovery of unpaid wages
The owner, agent or manager of any mine when is required to pay the wages or any such considerable amount but not paid, should be made recoverable as delayed wages under the provisions of the Payment of Wages Act, 1936.
Power to exempt mines
When the Central Government is satisfied that the leave rules applicable to persons employed in any mine provide benefits it may, by order in writing and subject to such conditions as may be specified therein, exempt the mine from all or any of the provisions.
Regulations, Rules, and Bye-laws
Power of Central Government to make regulations
The Central Government can make regulations and bye-laws:
for appointment as Chief Inspector or Inspector regarding the duties and powers of the Chief Inspector and Inspectors;
for the duties of owners, agents, and managers of mines.
for facilitating the managers of mines and other persons acting under them;
to grant and to renew their certificates of competency;
for determining fees payment for examinations, granting and renewing certificates.
to determine whether it is lawful to have one manager for more mines than one.
for controlling misconduct/ incompetence on the part of any person holding a certificate and suspending/cancelling such certificate if necessary,
for regulating the provisions of the Indian Explosives Act, 1884.
for prohibiting/ restricting/ regulating the employment of women in mines or on particular kinds of labour.
for the safety of persons employed in a mine as well as for the safety of the roads and working places in mines.
for ventilation of the mines and precautions taken with respect to dust, fire, inflammable and noxious gases.
regulating the provisions of the Indian Electricity Act, 1910.
for proper lighting of mines and usage of safety lamps.
against explosions/ ignitions of inflammable gas/ dust/ irruptions/ accumulations of water in mines.
for owners, agents and managers of mines to have fixed boundaries for the mines.
for regulating the occurrence of accidents/ explosions/ ignitions in mines.
for protection from injury, when the workings are discontinued, and the property vested in the Government or any local authority or railway company as per the Indian Railways Act, 1890.
Power of Central Government to make rules
The Central Government can make rules like:
filling vacancies of the members of a Committee and for proceeding in term of office for transacting its business.
appointment, procedures, powers of Courts for inquiry, payment of travelling allowances to its members, and recovery of the expenses.
maintaining mines where any women are employed and standards of such room, nature, and extent of the amenities provided there.
standards of sanitation to maintain with latrines and urinal accommodation of good quality.
supply and maintenance of medical appliances.
for prohibiting intoxicating drinks or drugs in a mine and the entry of such person.
for prohibiting the employment of persons who are not certified by a medical practitioner.
for presenting themselves for medical examination.
for notices, returns, and reports in connection.
for maintenance in mines, where more than fifty persons are employed.
to have rescue stations for specified mines and for prescribing how and by whom such stations should be established.
Power to make regulations without previous publication
To prevent the apprehended danger and to provide a speedy remedy in the case which has suspected danger with it; the central government can make regulations in such a place to dispense with the delay which can result from such publication and reference.
Bye-laws
The owner, agent or manager of a mine should frame and submit to the Chief Inspector/ Inspector, a draft of bylaws or any such regulations or rules for the time being in force, stating the governance, the use of any particular machinery or the adoption of a particular method of working in the mine.
If within a period of two months from the date on which any drafted bye-laws or drafted amendments are sent to the owner, agent or manager, and the owner, agent or manager are unable to agree as to the terms of the bye-laws which are made, then the Chief Inspector/ Inspector should refer the draft bye-laws for settlement.
When these bye-laws are approved by the Central Government, it must be given effect as a concrete legislature, and the owner, agent or manager of the mine should keep a copy of that bye-laws, in English and in such other language as preferable. This copy must be secretly kept in some conspicuous place at or near the mine, where the bye-laws may be conveniently read or seen by the persons employed.
The Central Government can by order in writing make any bye-law, and such bye-law shall cease to have effect accordingly.
Laying of regulations, rules, and bye-laws before Parliament
Every regulation made, every rule made and every bye-law made should be laid before each House of Parliament, while the parliament is in session.
Penalties and Procedure
Obstruction
Any person who is obstructed to do his duty is liable for punishment with imprisonment for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both.
Also, any person who refuses to produce any registers or other documents, or prevents, is liable to be punishable with fine which may extend to three hundred rupees.
Falsification of records, etc.
Any person or persons:
intentionally makes a false statement in any certificate/ any official copy, or
counterfeits such false certificate, or
produce/ use/ make any false declaration, statement or evidence or
falsifies any plan, section, register or record such false register, or
make/ give/ deliver any plan, return, notice, record or report containing a statement, entry or detail which is not true.
All such persons will be made liable for punishment with imprisonment for a term which may extend to three months, or with fine which may extend to one thousand rupees, or with both.
Use of false certificates of fitness
Anyone who uses a certificate of fitness granted to self or allows it to be used by another person, intentionally, is punishable with imprisonment for a term which may extend to one month, or with fine which may extend to two hundred rupees, or with both.
Omission to furnish plans, etc.
Any person who omits any plan, section, return, notice, register, record or report required to be made without any reasonable excuse will be punishable with fine extending to one thousand rupees.
Contravention of provisions regarding employment of labour
When any person contravenes any provision/ regulation/ rule/ bye-law or any order made for prohibiting, restricting or regulating the employment will be made liable for punishment with imprisonment extending to three months, or with fine which may extend to one thousand rupees, or with both.
Penalty for the employment of persons below eighteen years of age
If a person is below eighteen years of age and is employed in a mine, the owner, agent or manager of such mine shall be punishable with fine which may extend to five hundred rupees.
Failure to appoint a manager
If any person fails to appoint a manager, such person shall be punishable with imprisonment for a term extending to three months, or with fine extending to two thousand and five hundred rupees, or with both.
Notice of accidents
When anyone fails to give notice of any accidental occurrence or to post a copy of the notice, it will be punishable with imprisonment for a term extending to three months, or with fine extending to five hundred rupees, or with both.
Owner, etc.to report to Chief Inspector in certain cases
Where the owner, agent or manager of a mine has taken proceedings against any person employed in a mine in respect of an offence, then he shall report this result to the Chief Inspector within twenty-one days from the date of the judgment or order of the court.
Special provision for contravention of certain regulations
Anyone who contravenes any provision of any regulation or of any bye-law or any order made will be punishable with imprisonment for a term extending to six months, or with fine extending to two thousand rupees, or with both.
Special provision for contravention of orders under Section 22
Anyone who continues to work a mine in contravention of any order issued will be made punishable with imprisonment for a term extending two years, and will also be liable to fine extending to five thousand rupees.
Special provision for contravention of law with dangerous results
Whoever contravenes any provision of this Act will be punishable:
resulting in loss of life – with imprisonment extending to two years, or with fine extending to five thousand rupees, or with both;
resulting in serious bodily injury – with imprisonment extending to one year, or with fine extending to three thousand rupees, or with both; or
causing injury or danger to persons employed in the mine – with imprisonment extending to three months, or with fine extending to one thousand rupees, or with both:
Where a person who is convicted again with this condition, will be punishable with double the punishment.
Any court imposing or confirming in appeal, revision or a sentence of fine passed, while passing a judgment order, the whole or any part of the fine recovered has to be paid as compensation to the person injured and in the case of his death, to his legal representative.
General provision for disobedience of orders
Anyone who contravenes any provision of this Act or regulation or rule or bye-law or any order, made for the contravention of which no penalty is provided, shall be punishable with imprisonment for a term extending to three months, or with fine extending to one thousand rupees, or with both.
Prosecution of the owner, agent or manager
A prosecution shall not be instituted against any owner, agent or manager for any offence under this Act except when the Chief Inspector or of the district magistrate or of an Inspector authorized in this behalf, states to do so, by general or special order in writing.
Determination of the owner in certain cases
Where the owner of a mine is a firm/other association of individuals or is a company/ a Government or any local authority then, to manage the affairs of the mine, some may be prosecuted and punished under this Act for any offence for which the owner of a mine is punishable.
Exemption of owner, agent or manager from liability in certain cases
When the owner, agent or manager of a mine, is accused of an offence alleging that another person is the actual offender, in that case, he will be entitled to get a prosecutor in not less than three clear days to have that other person brought before the court on the date appointed for the hearing of the case.
Power of court to make orders
Where the owner, agent or manager of a mine is convicted of an offence, the court may, in addition to awarding him any punishment, require him within a period specified in the order to take such measures specified for remedying the matters in respect of which the offence was committed.
Where an order is made, the owner, agent or manager of the mine, will not be liable in respect of the continuance of the offence during the period, if any, but on the expiry of such period, if the order of the court has not been fully complied with; all such owners, agents or managers will be deemed to have committed a further offence and will be held punishable with imprisonment for a term extending to six months, or with fine extending to one hundred rupees, or with both.
Limitation of prosecutions
No Court can take cognizance of any crime or offence unless the complaint has been made:
within six months from the time the offence is alleged to have been committed or have known of such commission, or
in the case where the accused is a public servant and had the previous sanction of the Central Government or the State Government in taking cognizance of an offence under any law, within three months from the date on which such sanction is received by the Chief Inspector, or
in the case where a Court of inquiry has been appointed by the Central Government, within one year after the date of the publication of the report referred.
Cognizance of offences
No courts inferior than a Metropolitan Magistrate or a Judicial Magistrate of the first class can try any offense which is alleged to have been committed by any owner, agent or manager of a mine or any offence made punishable with imprisonment.
References to Committee in lieu of prosecution in certain cases
If the Court opines that the matter which is instituted should be referred to a committee in lieu of prosecution, it can report such matter with the central Government under such observation.
On the other hand, the Central Government can refer such case to any Committee it deems to see fit or may direct the Court to proceed with the trial.
Miscellaneous
The decision to the question of whether a mine is under this Act
The Central Government can decide the question and a certificate in this regard signed by a Secretary of Central Government if any question arises on whether to excavate or work on any part of a mine.
Power to exempt from the operation of the Act, regulations, etc.
The Central Government can either exempt absolutely or conditionally, from the operation of all or any provisions of this act upon a part of or of mine.
Power to alter or rescind orders
The Central Government can reverse or modify any order passed herein this matter with respect to this act.
Application of Act to mines belonging to Government
This Act will also apply to mines which belong to the Government.
Persons required to give notice, etc., legally bound to do so
Every person is obligated to give a notice or to furnish any information to any authority which he is legally bound to do, within the meaning of Section 176 of the Indian Penal Code, 1860.
The signing of returns, notices, etc.
All returns and notices are required to be furnished or communicated on behalf of the owner of a mine about any regulation, rule, bye-law or any order made to whom power in this behalf has been delegated by the owner by a power of attorney.
No fee or charge to be realized for facilities and conveniences
No fee or charge should be taken from any person who is employed in a mine in respect of any protective arrangements or who facilities to provide any equipment or appliances.
Application of certain provisions of Act 63 of 1948 to mines
The Central Government can direct to specify in notification applying to all mines about exceptions and restrictions in Chapters III and IV of the Factories Act, 1948.
Protection of action taken in good faith
No suit, prosecution or other legal proceedings whatever, should lie against any person for anything done in good faith or intended to be done under this Act.
Conclusion
The Mines Act, 1957 has been commenced to look after the prospective employment in the mines sector as well as the safety and progress of workers related to mines. The act limits the unnecessary and manipulated labour ship among the poor classes of the society, also giving them the desired platform to be heard in case of injustice. Hence, the legislation of such exhaustive form is necessary for upbringing the economy of the country as well as to reform the less facilitated people.
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This Article is written by Shruti Singh, a 2nd Year law intern from Hidayatullah National Law University pursuing B.A.LLB (Hons.) course. The Article explains the obligation of the Member States under the European Competition Law.
Introduction
European Competition law is the law which governs the competition between the Member States within the European Union. It maintains cooperation between states and promotes anti-competitive behaviour by public undertaking and private companies so that they do not form monopolies and cartels and dominate in a single unified European Union Market.
It derives its powers mainly from Article 101 to Article 109 of the Treaty on the Functioning of the European Union (TFEU) and certain directives and Regulations.
Article 4(3) provides the base for Article 101 to Article 109 which gives the obligation of Member states while interacting with another state within the EU for trade or business. It also mentions rules propounded in various cases which have no express mention under the treaty.
Article 4(3): Treaty on European Union (TEU) Duty of Sincere Cooperation
The duty of Sincere Cooperation incorporates the task of European Union and its member states to assist each other in all the aspects that flow from the treaties. It is more of a mutual legal obligation so that all the member states can participate in the international conventions and treaties and have an equal chance. In general, the purpose behind the formation of the European Union was co-operation that is sincere and genuine from all its member states. It ensures a sense of security between the EU and its member states. It is in general, the guiding principle for all the laws in the treaty.
Showing cooperation also marks as a sign of mutual respect and trust among its members. This will establish an environment of peace and harmony.
1. Relationship between Article 4(3) TEU and Articles 101 and 102 TFEU
Article 101 of the Treaty on the Functioning of European Union (TFEU) prohibits any kind of agreements and cartels that could cause a disbalance in free competition in the internal market of the Union and the states. It prevents any kind of practice that has the object of secluding, restricting and putting unfair conditions for curbing free competition to place one of the trading partners at a disadvantage. The incorporation of Article 101 in the EU’s drive is towards ensuring that free competition exists between member states. Any agreement or decision made with this effect will be declared void. It even prohibits an agreement which is made even outside the Union restricting or causing any disruption in the internal market. Free competition is a vital part in the functioning of the European Union and there the inclusion of this Article becomes necessary.
Article 102 was formerly placed in Article 82 of the Treaty establishing the European Community(TEU). It aims at preventing the undertakings who are in a dominant position in the market from taking undue advantage of their position. It holds the core role of restricting any kind of monopolies which tend to disrupt the internal market. It primarily prohibits abusive conduct of the dominant parties. So after comprehending Article 101 and Article 102 of the Treaty on the Functioning of European Union it comes down to an inference that as a whole, the idea behind both these articles is to promote a friendly environment in relation to trade and to restrict the dominance of one or more of the undertakings in the functioning of the internal market.
The guiding principle of Sincere cooperation can only be achieved by the enabling provisions of Article 101 and Article 102 of the Treaty.
Article 4(3) of TEU is focused on the relations of member states on the other hand Article 101 and Article 102 is addressed to the undertakings. The conundrum that arises is that can a member state be liable for the actions of the undertakings in violation of competition law. There have been legal precedents which sought to achieve a balance between those infringements of Article 101 and Article 102for which member states bear their responsibility.
2. The case law predominantly concerns Article 4(3) TEU in conjunction with Article 101 TFEU
Article 106(1) of the TFEU imposes a specific duty on member states which grants special or exclusive rights to ‘public undertaking and other undertakings’ to enact or make any rule in contravention of the rules contained in treaties in particular to the measures mentioned in Article 101 and 109. The case law on Article 4(3) concerns with the liability of member states for infringements in Article 101.
Sometimes a situation like this may arise that the petrol prices prevalent in different states may differ with little provisions and it may set a horizontal cartel.
3. The case law on Article 4(3) and the competition rules
I. The INNO doctrine
INNO-B.M. v Association des détaillants en tabac (ATAB), the case was related to tobacco taxation in Belgium. Article 4(3) read with article Article 101 and Article 102 has the combined effect that a member state can infringe an EU law by maintaining in force legislation which tends to deprive the competitive rules of their effectiveness. The result of this case was that a state measure by any of the member states.
a. Unsuccessful application of the INNO doctrine
There were still many instances where INNO doctrine was not successfully applied. In the opinion of the A G Maduro in a case where there was a challenge to French legislation requiring retailer of books to adhere to minimum resale price of books fixed by the publishers failed since the Court of Justice was not in a position to decide whether the act of the state was unlawful in the context of Article 101 or not. In the case of Collet vs. Centre Leclerc, Toulouse also legislation which fixed the minimum price for petrol failed since it was held that it a pure state action which nowhere was related to agreements formed by different undertakings.
The INNO doctrine, was in the above case, successfully applied. BNIC was a French association(an inter-state state body) which represents the winegrowers and dealers in France, imposed production quotas on the production of wine. Then by a decree passed on by the minister the quotes were made binding on the entire industry and imposition of levies in case of exceeding the production. The Court held that the ministerial decree was unlawful as the prior agreements made within the members of BNIC as it was a breach of France’s obligations under the treaty. The action brought by BNIC against Yves Abert failed for the infringement of extension order.
The case concerns with the action brought about by a tour operator against an association of travel agents who were passing on the commission to its customers which they received from tour operators. According to the Belgian law, a tour operator was allowed to bring an action for unfair trade practices against the price- cutter. The Court of Justice held that the agreements between tour operators and its agents are likely to dampen the price competition and also infringed Article 101(1). The Belgian government through legislation gave it a permanent effect.
The legislation was held to be violative of Article 101 (1) and Article 4(3) of the TFEU and the action of the tour operators would fail.
The Court of Justice, in this case, held that the approval by the aeronautical authorities of air tariffs fixed by agreements by airlines resulted in violation by the member states in violation of their obligations under Article 4(3) TEU and Article 101 and Article 102 TFEU.
The Case is concerned with Italian Law. The Court of Justice held that the Italian Competition authority is required to disapply an Italian Legislation which controlled and regulated the manufacture and sale of tickets in Italy as it was against Article 4(3) of the TFEU. This should only be to the extent in so far the law that required and facilitated price-fixing and market sharing which is contrary to Article 101. It also further added to impose penalties and fines on the undertaking practising this from an unlawful period, except when it was the requirement and not just because the legislation authorises.
One of the claimants was not happy with the rate of interest payable on his savings deposits and he also asserted that the interest rate has come down to a very low level which in turn violated Article 101. And it was so because of the tax legislation. The Court of Justice held that it cannot be concluded that the legislation in any way encouraged or favoured the anti-competitive agreements. The court strictly observed that the INNO Doctrine was not applicable in this case and the case law held that the Member State cannot be made liable for the breach as it did not violate Article 4(3) in conjunction with Article 101.
II. INNO doctrine applies only where there is an infringement of Article 101 TFEU
INNO doctrine applies only in case of infringement of Article 4(3) with the conjunction of Article 101 TFEU. It is infringed only when the member state requires, favours or reinforces the anti-competitive private agreements or abandons its prices by delegating it to private engagements. There were cases where the challenge to the said legislation was declined as there were no agreements formed between undertakings, in some cases, it was difficult to establish whether the legislation supported the agreements or not.
From the cases discussed it cannot be concluded that the INNO doctrine cannot be applied simply in every case where the measures of the state resembles or is similar to a cartel. The next essential condition for the application of Article 101 is that the agreement should be between undertakings and the effect of trade on the Member States. These conditions also put limitations on the application of the INNO Doctrine. In many cases that came up to the court also observed that there were certain agreements like Joint association of employers and employees which falls outside Article 101. Again in these types of cases, the INNO Doctrine is not applied.
III. Application of the case law to lawyers’ fees
After analysing various case laws under INNO Doctrine, it is important to imagine different situations related to the fixation of lawyers’ fees.
Example 1: There is a state ‘X’ in which all the lawyers practising agree to comply with the regulations of a private based bar association. This will not lead to infringement of Article 101 (1) TFEU until there is not much effect on the competition and inter-trade and secondly there is no involvement of member states in authorising or encouraging the bar association. This will result in the inapplicability of Article 4(3).
Example 2: In another state ‘Y’, there was a regulatory mechanism set up by the state. This body seeks advice and suggestions of different lawyers and then decide on the price. Again, here it will be difficult to analyse whether the state will be liable for the unlawful act or not as the mechanism still has freedom of deciding the price and other rules for the lawyers.
Example 3: The Member state ‘Z’ fixed the fees but there was the presence of no agreement. Therefore Article 101(1) TFEU will not be infringed.
From all these illustrations it is clear that the infringement under Article 4(3) TEU and Article 101 TFEU is difficult to prove as there should be inferences that the member states made agreements and secondly favoured or encouraged it by legislation or by delegating it to some other authority which has the effect of influencing the trade and competition.
Article 106 TFEU was formerly Article 86 TEC. Article 106 primarily demands the compliance of all the treaties of TFEU especially under Article 18 and from Article 101 to 109. There are 3 sub-clauses of article 106.
Article 106(1) states that in case of public undertakings and undertakings which have been granted special and exclusive powers by the member states, the member states in this respect shall neither enact nor maintain any measure which is contrary to the provisions mentioned in the treaty, in particular to Article 18 and Article 101 to Article 109.
Article 106(2) is an exception to clause 1 which allows undertakings entrusted with the operation of services of general economic interest and revenue-producing monopolies to the extent it is necessary for the achievement of public service missions they are entrusted with. It should also not be contrary to the interests of the Union in general.
Article 106(3) is an enabling provision that allows the Commission to issue directives or decisions to member states to ensure the application of the provisions of the treaties.
Article 106(1)
Undertakings
Undertaking from the economic point of view holds a dominant position and have a substantial influence in the internal market.
Public undertakings
No definition has been provided for the term “Public Undertaking” and it only appears in Article 106(1). Public Undertaking is an undertaking on which the government or public authorities exercise influence directly or indirectly by way of ownership, finances and the rules governing it. The public authorities hold a dominant position by having a major portion of shares by themselves, by being the supreme authority information of laws or by being the largest contributor in terms of finances.
Undertaking with ‘special or exclusive rights’
1. Exclusive rights
Exclusive rights are given to the company performing a specific kind of work in an area though there has been no distinction given between Special and Exclusive Rights. An example can be la Crespelle v Coopérative d’Elevage et d’Insémination Artificielle du Département de la Mayenneit was held that a scheme for the artificial insemination of cattle in France involved exclusive rights because of the way the national legislation was operated in that practice
2. Special rights
Member State grants some “special and exclusive powers” to public undertakings and other undertakings by way of legislative, administrative and regulatory provisions to limit and define the number of undertakings and its activities to few and which substantially affects the ability of other entities to carry out such activity. It meaning can be deduced from different cases also.
Measures
Measures are directed towards leading the way to behave in abuse of dominant position or having the potential of making an undertaking to behave in a manner which tens in making the undertaking in a dominant position to abuse its powers.
Obligations on Member States under Article 106(1)
Member States should neither enact nor maintain any measure which is contrary to the rules contained in the treaty. They will no way exceed their power and infringe on the basic rules of the Union.
This is a famous case of EU competition law case, which deals with the definition of the two most important terms in Article 106 i.e., ‘undertaking and ‘abuse of a dominant position’. In this case, Mr Hofner and Mr Elser were recruitment consultants who had placed a candidate as a sales director with a company called Macrotron Gmbh. Macrotron didn’t want the candidate and found him unsuitable for the job. As against this, the consultants sued the company for breach of contract. These consultants were working under the provisions defined by a public body called Bundesanstalt. It was held by the Court of Justice that ‘Bundesanstalt’, was considered a public body which was subject to competition law. It was considered to be an ‘undertaking’ which by controlling and regulating the terms of service of employees and employers has abused its power while being in a dominant position.
This case deals with the free movement of services in the European Union. ERT, which was a greek TV and Radio company that had exclusive rights for broadcasting. It claimed an injunction against a rival TV company for setting up a separate TV station without a licence. They contended that they have the right under Freedom of movement. The Court held that it violated Article 106(1) TFEU.
This case deals with the exclusive and special rights granted to an undertaking and because of this, the abuse of their dominant position. Merci Convenzionali Porto Di Genova was an Italian private undertaking that enjoyed an exclusive concession for the handling of loading operations in the harbour of Genova. Due to the ongoing strike at Merci, there was a delay in the unloading of the defendant’s imported goods from Germany. It was held that the abuse of their dominant position by the undertaking was not permissible.
The Court of Justice held that there was an infringement of Article 106(1) in this case. It was also observed that ERT didn’t need to abuse its power. The Court seemed to have considered it to be inevitable that an undertaking in the position of ERT, because of its conflict of interest, would act abusively.
The Court considered the extent to which the postal monopoly of the Belgian Post Office could be justified under Article 106(2) and did not discuss Article 106(1). To some extent, it was held that the measures taken were contrary to Article 106(1). This case is an example of the unlawful extension of the monopoly right to an ancillary activity. If the monopolies are too broad they can be struck down also to that extent.
Making sense of the case law on Article 102 in conjunction with Article 106 (1)
It becomes difficult to determine the liability of Member States under Article 106 (1) for an infringement in Article 102. Three different points need to be discussed before ascertaining their liability.
Firstly a member state can not be made liable on an individual basis for all the anti-competitive behaviour of undertakings happening in its jurisdiction. Article 106(1) can be infringed only when it can be shown that there is a close link between a Member State’s legislative and administrative intervention and the anti-competitive behaviour of undertakings.
Secondly, the mere creation of a dominant position by a grant of exclusive and special rights cannot by itself make the undertaking infringe Article 106(1).
Thirdly, infringement under Article 106 (1) does not simply mean that there should be an abuse of power by an undertaking in a dominant position, even if there is a risk of abuse, it is sufficient.
Even after these points, it is not clear how responsibility is adjusted in Article 102 in conjunction with Article 106(1). The subsequent decisions of the Court of Justice helped to ascertain the liability in specific cases. InDusseldorp BV and Others v Minister van Volkshuisvesting, Ruimtelijke, the Court held that a member state infringes Article 103 in conjunction with Article 106(1) when a Member state adopts or supports any law, regulation or administrative action which enables an undertaking under dominant position to abuse its power conferred to it by special and exclusive powers. This is one category to determine the liability, there are still more categories like this observed by different courts. There cannot be any general test be introduced for this in advance for subsequent decisions in future because of different interpretations by different jurists.
Manifest inability to meet demand
In Holfer & Elser vs Macrotron, it was held that there was an infringement of Article 106(1) when Germany had created a situation when FEO was manifestly not in a position to satisfy the demand of recruitment services, and its monopoly restricted other competitors from satisfying that demand.
Conflict of interest
In ERT vs. Dimotiki also there was an infringement of Article 106(1) when somehow a situation was created in Greece by which ERT a broadcaster was lead to infringe Article 102 because of a discriminatory policy in favour of its broadcasts. What was peculiar to this case was that RRT didn’t need to abuse its dominant position. The court considered it to be inevitable for an entity like ERT, because of its conflict of interest, would act abusively.
Reservation of an ancillary activity
The court held that a measure leads to an extension of RTT monopoly to an ancillary activity on a separate market, that infringed Article 106(1). This was seen in RTT vs. GB -Inno-BM.
Corbeau
In this case, the Court of Justice discussed Article 106(2) and not Article 106(1) in detail. To an extent, the monopoly was falling under Article 106(2), but still, some part did infringe Article 106(1) seen from a broader view. The judgement is very radical.
Discrimination
It was observed that discriminatory treatment of customers is abuse by the Member State for which it can be made responsible under Article 106(1). It was held that dissimilar conditions cannot be created for equivalents situations in the case of Merci. It has also condemned price discrimination in some of the cases.
Excessive pricing
On this point, dominant companies are charged for engaging in the practice of excessive pricing. Certain national competition authorities have, especially that of UK and Italy have challenged excessive pricing by the dominant companies in the pharmaceutical company industry.
Remedies and direct effect
Article 106(1) has a direct effect when it is applied in conjunction with the other provisions of EU law. As one of the effects is that individuals can bring an action against a member state for infringement of EU laws. An undertaking can also sue any other undertaking for a breach before a national court.
In some cases it was also held that a third party who is affected by the violations can bring a suit against the member states.
Article 106 (2)
Article 106 (2) somewhat seems like an exception to Article 106 (1). For better understanding, it can be divided into three parts. It states that ‘ undertaking entrusted with the operation of services of general economic interest or having the character of a revenue-producing monopoly shall be subject to the rules of the treaty, in particular, competition laws, in so far as the application of such rules does not obstruct the performance in law or in fact, to the particular tasks assigned to them. The development of such trade must not be contrary to the interests of Union in general”.
Article 106(2) somewhere leads to dis-application of Article 101 and Article 102, so it should be strictly interpreted. It is for the undertakings to prove that they are relying on this provision.
Services of general economic interest
An undertaking can claim to exclude(not follow) the rules in this treaty if it is entrusted with the services of general economic interest or it has a character of a revenue-producing monopoly. It can itself perform this service or must perform the service.
Services of general economic interest have not been defined anywhere in TFEU. It was held that service to be general economic interest it should be for the benefit of all the consumers in a given territory and be available at a given and equal tariff.
Undertakings having the character of a revenue-producing monopoly
Undertaking having the character of a revenue-producing monopoly means a state-created monopoly for raising revenue. Usually, this monopoly would be conferred on a public undertaking which has to share profits with the state.
Scope of the exception: obstruction of the performance of the tasks assigned
In several cases, undertakings have taken the benefit by contending that they are shielded from competition laws by Article 106(2). This, in turn, gives them the power to escape from some rules and thereby maximises the scope of Article 101 and Article 102.
Unsuccessful claims based on Article 106(2)
In various cases, claims brought in Article 106(2) have failed. In ANSEAU- NAVEWA, there was the formation of an agreement which required Belgium purchasers to acquire ‘conformity labels’ before washing machines and dishwashers that could be plumbed infringed Article 101(1). One of its effects was discriminatory against the importers from different member states. The Belgium association involved in this claimed benefit under Article 106(2). It held that this scheme was more of a restriction than it was necessary even though it was providing services of general economic interest.
Successful claims based on Article 106(2)
It is also wrong to conclude that wrongs under Article 106(2) will always be unsuccessful. In Viasat Broadcasting UK Ltd vs European Commission the Viasat Broadcasting UK Ltd was successful in its claim under Article 106(2).
Adverse developments of trade
Article 106(2) in a way restricts unfavourable development of trade in the garb of the exception provision in this sub-clause. It prevents undertakings who try to escape competition laws taking the excuse of this exception.
Direct effect
Article 106(2) directly affects the field of competition law and production of services.
Article 106(3)
It prescribes that commission shall ensure adherence to the rules in this article and during this process can issue directives and decisions also to the member states. This provision does give power to the Commission to make general laws, it is specific to this Article.
Decisions
Decisions can be issued by the Commission where it thinks that it is necessary for this Article only. The meaning of decisions is taken as its standard meaning.
Directives
The term directive in Article 103 has the same meaning as in Article 288. Directives are binding on the Member States. But for it to become binding on Member states, they should incorporate it in their national laws by a process known as transposition.
Judicial review of the Commission’s power under Article 106(3)
The Commission is the initial decision-making body and it makes general rules and policies for all other provisions. The decisions of the commission are subject to judicial review. But this Judicial review does not constitute the substitution of Court’s view against that of Commission decisions. Its work is only to verify whether the commission complied with the procedural laws while framing specific laws and whether it gave the reasons for stated decisions or not.
Article 37 TFEU – State Monopolies of a Commercial Character
Article 37(ex Article 31 TEC) as three sub-clauses. It ensures the free movement of goods in Member states. It prohibits discrimination on the ground of nationality in the operation of state monopoly.
Articles 107 to 109 TFEU – State Aids
Article 107 prohibits the grants or aid provided by member states to any undertaking or favours which can distort or threaten to distort competition. Clause 2 lays down kinds of aids that shall be considered compatible with the internal market. And Clause 3 mentions about Aids which may be considered to be compatible with the internal market.
Article 108 deals with the measures that can be taken by member states on the recommendations of the Commission concerning the grant of state aid.
Article 109 instructs the council that on the proposal of the Commission can make any regulation for member states from enforcement of Article 107 and Article 108.
Conclusion
The objective of the laws mentioned in this article is to establish a market for fair trade between the Member States in the European Union. All other rules in the treaty are made keeping in mind the principle enshrined in Article 4(3) which promotes sincere cooperation. Article 101 to 106 mentions the restrictions and enabling provisions for member states. It gives rules specifically dealing with the behaviour of undertakings concerning trade. The Court of Justice has formulated various other categories which fill the gap in these skeletal laws. The Commission in recent years has been very effective in implementing these laws. It has reduced the practice of unfair trade to a great extent.
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This article is written by Nishtha Pandey (batch 2023) student of Dr.Ram Manohar Lohiya National Law University, Lucknow. This article seeks to present a holistic view of the public offences that are against public tranquillity.
“It is the responsibility of the government to make it easy for people to do good and difficult for the people to do evil” – William Gladstone
Introduction
Peace and tranquillity are the prerequisites for development in society. If there is disorderliness in society or any other hindrance of like nature, the society cannot provide to the individual, the opportunity to grow and develop to their full potential, hence the maintenance of peace and tranquillity is a must for every society and nation as a whole.
Offences against the public tranquillity are the offences against not only a single person or property but against the society at large. These kinds of offences are committed by the group of people sharing a common intention to disturb the peace and tranquillity of an area thus affecting the whole society. It is important to study these offences so that they could be curbed.
Maintenance of Public Peace
Peace and morality are the basis on which the base of a society is held, hence their protection is of prime importance, otherwise, the very foundation of the society would be endangered, which will, in turn, hinder the progress of the individuals.
It is the duty of the state to maintain public peace and order. It is even present in Section 34 of the Police Act, 1861 to maintain order in the public roads and public places. In fact, it is an offence to cause inconvenience, obstruction, annoyance, risk danger or damage to the public order or peace and further Section 23 of the Police Act, 1861 makes the police responsible for maintaining public tranquillity and punish anyone committing an offence. Hence public order means that the actions of the individual should not impinge the public peace or cause any kind of inconvenience to any other person.
Public Offences
Under IPC chapter eight deals with public offences. These offences could be categorized into four:
Unlawful assembly;
Rioting;
Enmity amongst different classes;
Affray.
Furthermore, Chapter X of the Criminal Procedure Code 1973 gives legal guidelines for the maintenance of public peace and order and also delineates duties, responsibilities, functions, and power of the Executive and the Police in this matter.
Unlawful Assembly
Section 141 of the IPC, 1860 deals with the unlawful assembly. Article 19(1)(B) of the Indian Constitution,1950 confers a fundamental right to assemble peacefully however this section seeks to criminalize an unlawful assembly.
Definition
Assembly of 5 or more people to commit an unlawful offence is called an unlawful assembly. An important aspect of an unlawful assembly is the presence of a common intention to disturb public peace and tranquillity. The mere presence of a person in an assembly without any motive to infringe the peace in the surrounding is not punishable. The common objective is to determine the aim and nature of the assembly. It is also possible that lawful assembly turns out to be an unlawful assembly.
Object
To use criminal force against any public servant, state or central government.
To resist any legal proceeding.
To commit any mischief or trespass on any property or person.
To use criminal force against any person to deprive him of the enjoyment of any right.
To use criminal force against a person and compelling him to do something which he is legally not bound to do.
Ingredients
For unlawful assembly, several ingredients need to be present for making anyone liable for the punishment defined for unlawful assembly under the provisions of IPC.
Five or More Persons
Unlawful assembly should consist of persons more than 5. If the number of people in a group is less than 5 then it will render this section inapplicable. It is also possible that the number of persons in an unlawful assembly may drop down to 5 after the commission of the crime, in this scenario too this Section would not apply, but Section 149, of the given Act (Subran Subramaniyam vs the State of Kerala) which levies vicarious liability on the person, would be applicable.
If in an unlawful assembly 3 persons are acquitted and the rest could not be identified or are unmanned but the court is certain about the presence of other people in the group making the number to 5 or more than that, then, in that case, the section of the unlawful assembly would be applied.
In the case of Ram Bilas Singh vs the State of Bihar, the Supreme Court has delineated certain situations where even the number of persons in an unlawful assembly becomes less than 5, then also conviction could take place.
Evidence must be given that other than the person convicted, there are other people who are involved at a given point of time.
Evidence to show the presence of other unidentified persons that are part of the unlawful assembly.
The first information report must reflect such to be the case even if there is no such charge formed at that given point of time.
They must have a Common Object
The term “object” refers to design or purpose, and for it to be “common” the person must share and abide by it. The members of an unlawful assembly must have a common object to commit a particular offence. Unlike common intention here prior meeting of minds is not important, the common object could be constructed on the spot. Common object leaves scope for the likelihood of events. Here the persons could also have an assumption that certain events “might happen” or are “likely to happen”.
The presence of common objects could be shown by way of facts and circumstances because the direct evidence of it is not possible.
Section 149 of the IPC,1860 deals with the common object. The word ‘knew’ is used in the second part of this Section, which means more than a “possibility” but less than “might have known”. Hence any offence so committed by any member of the unlawful assembly is assumed that all the member must have known at least the possibility of that act. This section further implies that any offence committed in the prosecution of the common object is immediately connected to a common object held by all the members of the unlawful assembly.
Object Must be one of Those Specified in Section 141
The common object possessed by the members of the unlawful assembly could be varied and could be adjudged by appraising the facts and circumstances, however, the common object needs to be the one already ascertained under section 141 of IPC, 1860.
In the case of Moti Das vs the State of Bihar, it is possible that the assembly started as being lawful but later turned out to be unlawful. The following are the objects present under Section 141 of the IPC, 1860:
Overawing the Central or a State Government or its Officer
The person is said to be overawed by another when he takes him to fear due to superior force or use of power. However mere overawe is not sufficient to attract the provisions of this section, the use of criminal force is very important. The person must use some criminal force against the other party so that he is overpowered by the threat or fear so that he is unable to continue his legally assigned work or does something which he wouldn’t have done otherwise. The unlawful assembly should also have the common object to instil overawe in the minds of the people.
The force should be used against the state or central machinery or any of the officers working on their behalf. It is essential to note that the officer must be carrying out the responsibility given to him when the criminal force is applied otherwise this section won’t be applicable.
Resist any legal proceedings
The legal process means any proceedings which have the legal mandate to be executed. Hence if any unlawful assembly act as a hindrance in the execution of the unlawful assembly then it would be considered unlawful.
It is important to note that if the proceeding or process is not legal and if that is hindered then that would not be considered as resistance under this section and hence not punishable.
For example- if an arrest is made without any legal warrant for the same, and if that arrest is resisted by any assembly of 5 people then that would not attract the provisions of this Section.
Commission of Mischief, Criminal Trespass or Any Other Offence.
Mischief and Criminal trespass are defined under Section 425 and 441 of the IPC, and offence here means anything which is punishable under any special law or any local law.
Hence, any assembly which does not commit any of these offences then it cannot be termed as unlawful assembly.
Forcible Possession and Dispossession
Any person cannot be asked to give up his possession of anything due to criminal force, but if the act is lawful and the person is legally bound to dispossess himself of that good, then this section would not be applicable. If the right on the property is not certain and if force is used to resist its dispossession then that assembly of more than 5 people that are involved would be considered as unlawful assembly.
Obtaining the right to possession
Incorporeal rights mean the right to use any property, as the use of well or water, etc. If by the use of criminal force any assembly of 5 people deprives the person of such use of the property then it can be a ground for punishment under this section.
Right to procession
The procession is an assembly in motion. The assembly is static. The procession, instead of a room, the procession takes place on the roads. This is a fundamental right granted to the citizens under Article 19 of the Indian Constitution. However one of the restrictions on this right is that the road should be available for the passer-by too, and not only for the processionists. One of the important conditions on the procession is that it should be peaceful, otherwise it could be legally disbanded by police action.
Sections of unlawful assembly are also applicable to processions. Hence of the processions are undertaken by a group of 5 or more people with an unlawful intention shared by all the members of the procession could be termed as unlawful assembly and therefore the member of this procession would be liable for punishment meant for unlawful assembly.
For Example, a group of 8 people went on the road with an intention to burn the police station, then this procession would be an unlawful assembly and could be punished as well.
Enforcing a ‘Supposed’ Right
Supposed rights mean that the person does not have any right over the subject in question. Under this Section “defending one’s right” is not punishable. It is fine to be armed for the protection of the right which the person already possess i.e. to maintain one’s right.
For Example, a person can use arms to protect his property which he lawfully owns.
This Section punishes the enforcement of a right or supposed right by way of a criminal act which makes an assembly liable for punishment.
When Right to private defence is exceeded
If any act is done in furtherance to protect any property of self or any other individual, then it is not an offence. In fact, such an act would not come under the “protection of the right or supposed” and would be immune from any punishment. This would not come under Section 144 or Section 149 of the IPC, 1860.
However, if the offence is committed which exceeds the ambit of private defence then such an act would make the perpetrator liable for punishment. All the other members of the unlawful assembly would be liable if constructive liability is to be construed.
Illegal Compulsion
Under this Section, a person or any group is compelled by an assembly of 5 or more people not do an act which he is legally bound to do or to do something which would have not done under the legal constraints.
The assembly initially could be lawful and can later turn out to be unlawful.
Example- an assembly formed for carrying out the work of a collection of donation for the construction of tank in the society, but later engaged in assaulting some other group which did the same work in other society.
Test When There is a Group or Communal Clash
In case of communal violence, if people indulge in some unlawful activities then they could be booked under the provisions of Unlawful Assembly.
For Example- if in a town, people of different communities pelted stones at each other to protest a judgment taken by the Supreme Court. The police, in this case, is authorized to disperse them under Section 129 of the IPC, 1860 and they could be booked under the provisions of unlawful assembly. In case, however, if the people wouldn’t have pelted stones then they couldn’t be liable for the punishment under unlawful assembly.
Constructive Liability When Free Fight Occurs
Section 149 of the Act, makes the member of an unlawful assembly constructively liable for the act done by any member of the unlawful assembly, however, it is to be noted that the act done by the member should be in pursuance of the common objective, otherwise other members of the assembly, who have not committed the offence could not be held liable.
In the case of Gajanand vs State of UP, free fight is referred to as when two people went on to fight with each other and it was predetermined. In this, it is immaterial whether the person has attacked or defended, but what matters is the tactic that is used by the parties involved.
Supreme Court has made it clear in the case of Puran vs the State of Rajasthan that for free fights constructive liability present under section 149 of the IPC, 1860 cannot be invoked because the fact which is considered is the injury that is caused to the other party by the person who was involved in the fight, hence other members of the assembly would not be held liable for the offence of free fights.
Common Object and Common Intention: Distinction and Differences
BASIS
COMMON INTENTION
COMMON OBJECT
DEFINITION
Under Section 34 of the IPC, the common intention is present which states that several people commit any crime with the furtherance of shared intention to do that crime. Each of the people is liable as of the crime is committed by him also.
Under Section 149 common object is present which states that five or more persons present in an unlawful assembly commit an offence. Even if the person has not done the offence himself, but of that time he is a part of that unlawful assembly he would be liable for the offence so committed.
MEMBER
The number of persons present must be more than one.
The number of members must be 5 or more.
MEETING OF MINDS
Prior meeting of the mind is necessary
Exception- Kripal Singh vs the State of UP.
The common object could be formed on the spot also.
LIABILITY
All the persons involved are liable equally. Hence active participation is not necessary.
All the persons involved may not be liable equally. Active participation is necessary.
Offence
Does not specify any offence but states a rule of law.
It describes a specific offence.
Effect of Omission to Charge Accused When Charge Using Section 149 Fails
There is a substantial difference between Section 34 and Section 149, of this Act, however, still, they overlap to some extent, and this overlapping is to be determined on a case to case basis, as it varies according to the facts.
If the common object which is material to the charge under Section 149 does not necessarily involve a common intention, then the substitution of Section 34 for Section 149 might be detrimental to the interest of the convict and hence should not be allowed. However, if the facts to be proved and the evidence to be adduced with reference to the charge under Section 149 would be the same if the charge were under Section 34, then the failure to charge the accused under Section 34 could not result in prejudice to the interest of the party and in such cases, the substitution of Section 34 for Section 149 must be held to be a formal matter. (Karnail Singh and another, vs. The State of Punjab).
For section 149 to be applicable, the presence of five or more people is necessary, but if the assembly of five or more people could not be ascertained, then in that case, joint liability could be imposed under section 34. Under this section, the act should be done in furtherance of the common “intention”. Moreover, if no joint liability could be established then each person could be held liable in his individual capacity.
Hence even if the charge fails under Section 149, still other provisions could be applied to ascertain the liability of the accused.
Test for Common Object
To test whether the unlawful assembly had a common object or not, it is not necessary for the parties to have actually met and conspired, but such intention could be inferred from the facts and circumstances of the case. A combined attack by all the five members of an unlawful assembly is enough to prove the common intention.
To show a common object, circumstances of the case, the attitude of the person involved furnish the key to their mental bent. Any person who encourages or takes part in such activities either by signs or gestures, or even wear a badge or sign is said to be a member of that unlawful assembly and is sufficient to gauge that he has a shared object for the offence so committed. On the other hand, a mere presence without any sort of encouragement is not the proof of criminality.
To test the common object at the starting, it wouldn’t be legitimate, to take into account the actual act committed by the person at a later stage, and to infer that such activities were part of the common object of the entire assembly.
Moreover, once all the ingredients of Section 141 are met, it won’t be enough for the person to put forward the argument that he did nothing with his own hands. The person would still be liable for punishment.
Separate Charge Under Section 147 or 148, Indian Penal code 1860, not Essential When Charge Under Section 149 Exist.
The fallacy in the cases which hold that a charge under Section 147 of IPC, 1860 is necessary arises because they ignore that the ingredients of Section 143 of the Act are already implied in Section 147 and the ingredients of Section 147 are implicit when a charge under Section 149 is included. An examination of Section 141 shows that the common object which renders an assembly unlawful may involve the use or show of criminal force, the commission of mischief or criminal trespass or other offences, or resistance to the execution of any law or of any legal process. Offences under Section 143 and Section 147, ought to always be present when the charge is laid for an offence like murder with the aid of Section 149, but the other two charges need not be framed separately unless it is sought to secure a conviction under them. It is thus that Section 143 is not used when the charge is under Section 147 or Section 148, of the Act and Section 147 is not used when the charge is under Section 148. Section 147 may be dispensed with when the charge is under Section 149 read with an offence under IPC. (Mahadev Sharma vs the State of Bihar)”.
On Nature of Proof of Common Object in Group or Communal Clashes
Communal clashes could be considered a small part of mammoth rioting. In these cases, the court finds it very difficult to ascertain the common object. Moreover, due to a large number of people, it is very difficult to assign the act done by each individual and punish them accordingly.
The common object could be furnished from the fact of the case. If the crime is committed by the entire assembly in a concerted fashion, in that case, the entire assembly would be held liable as common intention could be construed from the acts of the people.
In such cases, the role of an eye witness is very crucial, as he would give instances of what happened at the crime scene. But care should be taken and should not be relied on a single eyewitness. The perpetrators of the crime should be carefully distinguished from the spectators and wayfarers.
Other Connected Provisions
There are various provisions which come under the umbrella provision of Unlawful Assembly.
Being a Member of Unlawful Assembly—Contents and Punishment
This provision is present under Section 142 of the IPC, 1860 when a person joins any assembly with full knowledge of the fact that in the assembly certain elements which are not lawful and still joins it or continues (physical presence) to be part of it, then that person is said to be a member of an unlawful assembly.
Mere presence in an unlawful assembly does not mean that the person is its member. He should have a common objective to disturb public peace. If the person detaches itself from the assembly after knowing of its unlawfulness then that person is no longer a member of that assembly as he lacks a common intention which is very important. Moreover, if the common objective does not execute properly due to some weakness then too it shall be considered as an unlawful assembly.
Under Section 143 of the IPC, 1860 the person being a member of an unlawful assembly is liable for punishment for up to 6 months or fine or both.
Ingredients of membership of an unlawful assembly
According to Section 142, which deals with the membership of an unlawful assembly, the following are the essential ingredients :
A person should be aware of the unlawful elements of the assembly.
A person should possess an intention to join that unlawful assembly. Any sort of coercion to become a part of the assembly, will not render the person to be a part of the unlawful assembly.
A person is a part of the assembly, which later turns out to be an unlawful assembly and still continues to be a part of the assembly by consent which could be either express or implied.
Joining an Unlawful Assembly Armed with Deadly Weapon
This comes under Section 144, of the Act which could be seen as an extension of Section 143. Under this Section (144) a person who joins an unlawful assembly with deadly or dangerous arms would be punished for 2 years or fine or both.
Under this Section, a person who is although not carrying a deadly weapon, but is a part of an unlawful assembly will still be liable to be punished.
Ingredients
Joining assembly with a deadly weapon.
The weapon could be anything that has the potential to cause death.
The definition of deadly weapon varies upon the facts of the case. Any small object which could take someone’s life could also be termed as a deadly weapon.
Rendering Aid in Unlawful Assembly
Section 150,157 and 158 of the Act, makes rendering aid in an unlawful assembly, liable for punishment.
Section 150 basically deals with the perpetrator and the originators of the crime. This Section is created with the objective to punish the persons who are the mind behind the crime that is committed. The person who connive or hire the people that actually indulge in the commission of the crime. The law seeks to treat these persons at par with the persons who have actually committed the offence. Thus this section does not deal with the abetment or participation in the crime, but goes at the initial level of the planning the crime and hiring people to do such criminal acts.
Section 157 ensures the conviction of the person who-
Assembles or harbours people in a house or any other premises.
The house or premise must be under the person so accused.
The objective of such assembly, hiring or employment is to be a part of an unlawful assembly.
The person who is convicted for the acts mentioned above must know about these facts.
Section 158 of the IPC convicts a person who employs or hires himself to be part of the unlawful assembly and hence assists it.
Rioting
Section 146 and 147 under IPC deal with rioting. It usually takes place as a way to dissent something or for a perceived threat or grievance.
Definition
When an offence is committed by a group of people or any person belonging to that group, is termed as rioting. For rioting the presence of at least 5 people is necessary. This offence is generally grounded in civil unrest and is usually sudden and provocative behaviour. It shows a herd-like mentality and this is the reason that in case if a person belonging to the guilty group has not committed a violent act, even then he/she will be liable for rioting.
One of the most important ingredients is to constitute rioting is a common intention and object of committing a crime. This very “common intention” makes all the people in the group liable to be punished even when they haven’t even committed the crime themselves in rioting.
Historically rioting used to take place due to grievances against the government policies, outcome of a sporting event, frustration against any legal judgement, taxation, oppression, conflicts amongst races or was a way to channelise the suppression faced by the people to the government.
Punishment for rioting is present under section 148 of the IPC and is a description of a term of 3 years or fine or both. This offence is cognizable and could be tried by the first class magistrate.
Punishment for Committing Riot with Deadly Weapon
This is covered under Section 148 of the IPC. This section demands the same ingredients as that of rioting but with the addition of a deadly weapon.
The weapon could be anything that is so dangerous that it can cause the death of a person. The punishment for this is imprisonment for up to 3 years, which shall depend on the impact of rioting or fine or both.
This offence is present under Section 153 of IPC, 1860. Here, if the person with a malign intention to provoke someone knowing completely that, this provocation could lead to rioting, then that person would be booked under Section 153 of the IPC. The person provoking riot has a malign intention and acts wantonly. Under this Section, there is no need for rioting to actually take place, but only the mere provocation is enough to be liable for punishment under this Section.
However the punishment would differ based on the consequences of this provocation, if rioting took place then the punishment would be for a maximum of 1 year or fine or both and if rioting does not take place then the maximum imprisonment could be up to 6 months or fine or both.
Liability of a Person for Whose Benefit Riot is Committed
This offence is covered under Section 155 of the IPC, 1860. In this if a riot took on behalf of any person, or if that person takes some benefit from the riot so committed, that person is liable to be booked under section 155 of the IPC. Moreover, if the person himself or his agent or manager knew that riots of this nature is about or likely to take place and he or his agent or manager has not taken any lawful steps to suppress or undermine the effect of the riot then also the person is to be punished.
The main objective of this Section is to bring persons with mala fide intention under the law and to prosecute them accordingly.
Liability of a Person for Obstructing Suppression of Riot
Section 152 of the IPC,1860 deals with this offence. Here if a person assaults or attempts to assault any public servant dedicated to suppressing any unlawful activity like a riot, affray or unlawful assembly, etc, then that person shall be prosecuted under this Section.
This Section seeks to bring under the books any person who interferes or disturbs the mechanism built for maintaining peace and tranquillity in the society.
The punishment under this Section is up to 3 years or fine or both.
Belonging to an Assembly of Five or More Persons When Order to Disperse
Rioting is same as an unlawful assembly with a minor difference which constitutes the use of force, hence like in the case of unlawful assembly, in this too the presence of 5 or more people is necessary. The presence of more people distinguishes it from affray in which no such mandate of the presence of more than 2 people.
Difference between Riot and Unlawful Assembly
Rioting = Unlawful Assembly + Violence
Rioting is the same as an unlawful assembly with the addition of violence
For example- Group A constructed a building. Group B, which was 10 in number attacked group A and demolished the building.
Forming a group to demolish a building is an unlawful assembly.
Coming and demolishing the building in a group is rioting.
Affray
Section 159 and 160 of the IPC,1860 deals with affray and its punishment.
Definition
Affray refers to fighting in the public so that it disturbs the public order and peace. For affray to take place the presence of two or more persons is a must and their action should negatively affect the tranquillity of their surroundings. However, most importantly the effect of their behaviour should create disorder in society and for the people.
For example, if one person comes and slaps another person, that would not be counted as an affray, but if that act threatens the public peace then this act would amount to affray.
Based on the impact of their behaviour the guilty could also be convicted under unlawful assembly or rioting. The punishment usually depends upon the impact that their behaviour creates in the society or the level of threat they pose.
It is important to note that it is not necessary that any offence committed in public is affray, only the offence that has the potential to cause a disturbance in the public tranquillity could be termed as affray (Sunil Kumar Mohamed Alias Mahakhuda Vs.the State of Orissa)
Punishment for affray could be one month of imprisonment or fine of Rs 100 or both.
Comparison between fray, Assault, and Riot
RIOT
AFFRAY
ASSAULT
It is a violent outburst of unlawful assembly.
It is a violent activity that took place in public to disturb public peace.
It is a sudden attack that took place in a private setting.
Can be committed in private and public settings.
Can be committed in public arena only.
Can be committed in a public or private setting.
Five or more people must be involved.
Two or more people are to be involved.
One or more person needs to be present for the liability of assault.
Presence of common object is a must and that should be among the ones present in section 141 of the IPC.
Presence of common object is not necessary.
Presence of common object is not necessary.
It is an offence against the public with violent force
It is a public offence.
It is an offense against a private individual.
Every member of the unlawful assembly is liable for the offence committed even if he has not done the act.
The person who has actually committed the offence is liable.
The person who assaulted is liable for punishment.
Ordinary punishment would include imprisonment of two years or fine or both (Section 147 of the IPC)
Punishment under ordinary circumstances would include sentences up to 6 months or a fine of Rs 100 or both (Section 160 of IPC).
Ordinary punishment includes a term of either description of 3 months or a fine of Rs 500 or both (Section 352 of the IPC).
Affray – It is a group crime and poses a threat to the disturbance of public peace and tranquillity. Here minimum two-person must be present and their actions must instil terror in the mind of the public.
For example, In a fair, A comes and slaps B, and the people standing nearby are threatened by such action.
Riot- It also disturbs the tranquillity and peace prevalent in the society, but unlike affray, it shows a herd mentality where the offence is committed by a group or a person thereof
For example, A along with his group consisting of 8 people, went and slapped B in a Fair.
Assault- Unlike the other two, this offence is against an individual and does not threaten the public peace and tranquillity. This offence is against one person and property
For example, A went to B’s house and during an argument slapped B.
Promoting Enmity between Classes
This category of public offence comes under Section 153A and 153B of the IPC.
Definition
This Section makes the promotion of enmity between different groups on grounds of Religion, Race, Place of birth, Residents, Language, etc punishable. The jurisdiction of this Section is very wide and also includes offence on moral corruption.
The punishment under this Section is maximum imprisonment of 3 years or fine or both. However, if the above-mentioned offence is committed inside a religious institute then the punishment would exceed up to 5 years and could be liable for fine as well.
Constitutional Validity of Section 153A
This Section is challenged on the ground that it violated freedom of speech and expression enshrined under Article 19(1)(A) of the Indian Constitution. This Section puts a restriction on the speech or acts which could potentially encourage discord among various groups and classes.
However, the court of law has time and again upheld the validity of this Section, as it comes under the purview of public order and to some extent under the sovereignty and security of the nation under the reasonable restrictions. The scope of public order has grown leaps and bounds over the years.
In the case of the State of Uttar Pradesh vs Lalai Singh Yadav, the court has upheld the provision of ordered security, which gives precedence to the state if their intent is to protect public order.
Essential Ingredients of Section 153A
Promotion of enmity between different groups of religion, race, caste, residence, place of birth, community or any other group.
Acts that disturb the public tranquillity and encourages discords between different groups or castes or communities.
Acts or objects that cause fear or alarm or threat or insecurity for any religious, racial, language or regional group or caste or community by the use of criminal force or any sort of violence against them.
The presence of two communities is important to attract this provision. Mere derogation of the feelings of one community without any reference to any other community is not considered under this Section. (Bilal Ahmad Kalo vs State of Andhra Pradesh).
It is not necessary that enmity or hatred actually arose between different classes, because of certain acts or objects.
The matter which comes under the purview of Section 153A of the IPC, should be considered a whole and not some stray or isolated parts or portions.
It is necessary to consider the class for which the act or the object, meant to promote enmity is subjected to. The current dynamics between the classes so taken should also be taken into account.
Truth is no defence under Section 153A. In fact, the greater the truth, the greater the impact on the mind on the minds of the people, the act or object was subjected to.
SECTION 153B
This section was added to contain the rising disharmony amongst various communities. This was added in the year 1972, in which there was a high level of tension amongst various castes and this was affecting not only the social harmony prevalent in the society but was also affecting the national integrity of the country.
Publishes an imputation that certain person who belongs to a particular class, religion or caste cannot bear allegiance to the national integrity.
A certain group of people belonging to particular castes or community are bereaved of their right to citizenship.
Any of the aforementioned act must perpetuate discord and harmony amongst different classes of people.
Proposals for Reform
The law commission of India has circulated a questionnaire covering various aspects of public order. Only 12% of the respondents were satisfied with the current management of public offences in our country. 5% were satisfied only to some extent while 79% were highly dissatisfied, and the major reasons being-
External influence in public order management.
The root cause of problems is not addressed.
No long term solution is taken.
Inadequate involvement of NGOs and other civil societies or other social workers.
Lack of institutional mechanism to delineate roles and responsibilities.
The lower rank officers do not have the power to control the crime at a nascent stage.
Lack of training to civil servants and police to deal with public offences.
Lack of modern technology and types of equipment.
Absence of criminalised database of perpetrators.
Lack of cohesive all India policy for solving the menace of public disorder and offences.
Ineffective performance monitoring systems and management agencies.
Lack of accountability of police personnel and other related agencies.
Several reforms that could be introduced are:
Establishment of rule of law.
Visible policing is an effective method to deter public offences.
an effective, efficient, accountable and well-equipped police system.
a strong, autonomous and effective crime investigation machinery backed by a professionally competent and fair criminal justice system.
Civil societies which are conscious of their rights, powers and duties.
Alert and responsible media.
Conclusion
Public order is not just any other issue in the governance of the country, it is the core of it, comprising one of the vital aspects on which the democracy lies and the important realm of the foundation of our nation as a whole.
Chapter eighth of the Indian Penal Code deals with the offences against public tranquillity. These are offences which are committed against the whole society and disturbs the peace and tranquillity of the society. Any offence committed against an individual, but still could derange the public peace would come under the ambit of a public offence. Moreover, it is not necessary that actual offence is committed, but even if there is a possibility of causing public disorder, then it is a punishable offence.
These offences are categorised into four, i.e. Unlawful assembly, rioting, affray and enmity amongst different classes. All of them are to a certain extent similar to each other with minor differences.
However, some reforms are needed to make these provisions in accordance with the changing times.
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I have written a lot on how to get an internship and how to do well in an internship. But I realize there is almost nothing on how to offer a great internship program and attract the right people if you are a lawyer and want good interns.
Most lawyers do not take their internship programs seriously, and it is a mistake.
Here are a few reasons why every serious lawyer should offer an internship program and plan for it very seriously
Did you know that a lot of big law firms know how important their internship program is, and sometimes they even hire outside consultants to plan for it and then pay good money to execute that plan.
Well, internship programs cannot be taken lightly. Essentially you are taking in a bunch of impressionable kids who come to your office, spend time with your team, experience the environment, form an opinion about you and your work, and then go out in the world. Each of them may say good or bad things about you to numerous other lawyers and potential clients over the next few years.
Here are some solid reasons why you cannot take your internship program lightly.
1. Interns experience your brand and propagate it
What is your brand?
Are you a good human being? Are you kind and passionate about your work? Are you knowledgeable? Are you always learning and engaging in intellectual debates? Do you dream, breathe and speak about your area of expertise all the time? Are you socially conscious and always standing up for the right causes? Do you really do the most cutting edge work in the industry?
Whatever it is, your interns are going to experience your work environment and the brand. It is easy to project something to clients and peers you meet briefly, but interns see the real you, warts and all.
If they love what they see, they are going to talk to a lot of people about it. If they see you are phony, they will talk about that too.
Consider that every month you have half a dozen interns coming in through the door. Those are potentially 50 ambassadors for you who will add up to a big number over the years.
I interned with Ashwin Shanker at the Chambers of George Rebello, a shipping law firm in Mumbai, more than 10 years back. I was telling his story this afternoon to a deal lawyer from AZB I met at my friend’s wedding over lunch.
If someone asks me for a reference for a shipping lawyer in Mumbai, guess whose name will pop up in my head?
On the other hand, I interned at Amarchand Mangaldas in Kolkata in the same year. I did not quite enjoy the work, and the office or the team did not seem to have a collegial, exciting atmosphere, unlike some other firms I interned with. That impression remained with me. That’s how I always imagined AMSS to be. It made me gravitate towards Trilegal when I was in campus placement because Trilegal seemed to have a cooler and more modern attitude about the workplace.
Your impact on the interns will be permanent, so do not take it lightly.
2. Today’s interns are tomorrow’s lawyers who will refer you matters
I knew a senior lawyer who became a standing counsel for the government. After 5-6 years, he resigned because there is a limit to how much you make as a government counsel. When he restarted his practice he was in for a rude shock, he didn’t have many matters coming to him as he had in the past.
However, he had taken many interns over the years. By now those interns were lawyers all over India, and many were in big law firms and in-house legal teams. When they heard that after a hiatus this lawyer is back in private practice, they all got into action.
A lot of them started sending him matters. From requests for opinions to appointment as an arbitrator, many opportunities came through. Even I referred a client or two, though I was never his intern. Discussions about his legal wisdom were inevitable since a lot of my batchmates and even a few of my juniors and current employees had interned with him.
This could happen only because he was very kind and friendly to his juniors and interns. Interns also experienced his intellectual side and legal prowess, which led to them having high regard for him. I am not in a position to reveal his name, but he is a well-loved judge in a High Court today.
3. It is easier to hire from a pool of interns
When I ask my students in the Legal Practice Management course (almost all of them are lawyers with substantial practices) about what is the biggest barrier to rapid growth, the answer is not finding good junior lawyers to hire in sufficient numbers.
If one is a competent lawyer, it is not difficult to find enough work. But to deliver on the work that we already got, and doing that at the scale every day with a high level of competence, that is quite another thing.
It’s hard to make progress beyond a point unless you have a great team with you.
And how do you find the right juniors to hire?
Your internship program is your best bet.
You would want to hire from amongst your best interns, who already understand your workplace and would love to join you.
We prefer to extend offers of long term internships to those interns whose work could add some value in the organisation after seeing them for a month. Then from those who work long term, we like to make full-time hires when they graduate. It is our most preferred way of hiring.
It’s the same for big law firms. Law firm recruiting partners tell me that success rate of hiring someone from a long term internship is many times higher than campus recruitment. That’s why they fill up a good part of the quota for annual fresher hiring from internship program by offering PPOs first to their intern pool.
It works really well for solo lawyers and small law firms too, but remember that those targeting to join a big law firm may not be your best bet. You need to look wider.
4. You want the best interns to stay longer and continue engaging with you
Interns can serve as valuable resources for the firms if moulded and mentored properly.
While most law internships, unfortunately, last only for a month, you should attempt to encourage longer engagements with the best of the lot. You can offer them call back internships, you can give them work from home assignments, you can invite them for your monthly events, but it’s important to not let the connection die.
If they engage with you over a longer period, they are far more likely to understand what your practice needs and contribute accordingly.
At LawSikho, we try to keep in touch with them through WhatsApp groups and email newsletters. We offer paid work to the best interns, which even includes remote work. Some of them have come back for longer internships and a few are working with us full-time today. I strongly believe that we could do better than what we already do, and we hope to improve over time.
5. Interns are very good at doing the kind of work you may not find enough time to do on your own
Interns are eager to learn, and they are open to do a wide range of work. Here are some ideas:
-Get them to help you to write the marketing articles that you don’t get time to write.
-Get them to help you to set up a social media presence, post regularly or record your videos.
-Get their help to standardize processes and templates.
-They can help you to get speaking opportunities by scouting on the internet and submitting proposals to organizers of industry events.
-They can help you manage a blog or run a newsletter.
-They would help you to organize events and set up meetings with potential clients.
And in my experience, interns love to do such things because they rarely get such opportunities. They also want to learn more about law and legal work but exposing them to the business side of law increases their excitement manyfold. Do not miss this opportunity.
Also, give them the opportunity to first drafts of documents, ask them to come up with strategies for your legal matters and ask them for their input on various professional matters you deal with. They will often say something completely wrong, but sometimes their answers will surprise you because they have a fresh set of eyes. They know about things you do not.
In any case, by doing this, you are making a great contribution to their development, and they will remember you for this.
Remember that your relationship with your interns is a long term relationship and they are a very important part of your future professional network, whether you like it or not.
What are the common mistakes lawyers make while offering internships?
They either over delegate or under delegate. Interns are not reliable for the quality of work. If you give the same job to 3 interns, all 3 of them will produce different levels of results. It is, therefore, better to not be in a situation where you are relying on the intern’s output unless you have already worked with him or her for a few months and can predict the quality of work.
First-month interns need to be treated differently from those who have already been around for longer.
You need to just test out the interns who are only there for a month. You cannot entrust long term projects to them.
At the same time, do not only give them proofreading and formatting and photocopying work. Please ask them to do some more exciting things, even if you have to invent the tasks.
Say writing an article – it may not be critical for your law practice to churn out 10 articles a month, but if that keeps the first-month interns busy and gives them a chance to prove their worth, it is totally a good idea to give them that task.
Please give all interns clear targets for the internship – such as – writing ‘n’ number of quality articles, preparing Xyz database, or something else that makes sense for you.
When first-month interns have a clear target for the month they tend to perform far better.
Also, not giving any feedback to interns is terrible. Interns need your feedback. If you don’t have time, delegate the same to someone.
When to offer paid internships?
I wish it was possible to pay all interns. I do not pay first-month interns. I am happy to pay those I retain beyond that. I am sometimes even ready to offer them accommodation, free courses from LawSikho and even stipend, depending on what they are able to do for us.
For me, a long term intern is more like a freelancer.
Even if they work remotely thereafter.
If you are going to offer a paid internship, it needs to have clear performance metrics and deliverables that you are reasonably sure that the intern can deliver. If they can’t do that yet but shows promise, it is worth it to discuss a pathway to paid freelance work.
There are organizations that can afford to pay even first-year interns, great for them. It helps if you can give even a small amount to encourage and appreciate the interns even in their first month.
How many interns should I accept at a time?
No more than 6 interns should report to a reporting manager (my knowledge is limited to the legal industry) unless the person is managing interns full time. If you need more interns, then ensure there are more people the interns report to or that you hire an internship manager backed by a solid internship program plan so that all interns are productive, get feedback and get value from the internship.
We have made mistakes in the past by hiring too many interns.
Remember that if 3 people confirm to join an internship, probably only 1 is going to show up. For us at LawSikho, if 2 students confirm then 1 shows up. Earlier it was 3:1.
For renowned law firms and famous lawyers, it will be 1:1. So do not confirm 1 intern and expect that person to show up. If you are not having any brand value in law schools, and law students haven’t heard of you much, then the ratio could be even 5:1, you need to figure out what it is.
They are applying to 20+ places at a time, and the good ones will get confirmation from 3-4 places at least. Then they will choose where they will go.
That’s why my office calls all the people who conformed to join us 1 week before the internship to check if they are actually going to join.
Also, we make our internship applicants write a fresh article to even be considered, which makes them invested in working with us. Only those who are serious respond with a written article. This helps us to make internship offers to those who are genuinely interested in us.
How to sort out the best applications and which ones should I accept? Should I give them a trial task?
The best way to select the interns will be to give them trial tasks. When we do this, only 1 out of 10 original applicants gets back with the trial task. This makes the selection very easy.
If someone is serious enough about your practice or firm, only then they will do the trial task. That means you get the right candidates, and the people spraying and praying, get to go somewhere else.
You can give trial tasks like writing articles, recording a video explaining a legal concept, drafting an agreement or a plaint or an SLP based on a problem you provide – ideally something that makes them do some actual work that you want them to do when in your office.
If you want to do a telephonic interview, which I find redundant, you can base the same on this trial task so you can understand their understanding of the trial task.
What to do if you are not getting enough interns?
At LawSikho, we get 300-400 internship applications in busy months. In law firms, it can run up to thousands. There are at least 1 lakh law students looking for internships at a given point. If you are not getting any applications, it is because your brand is unknown and law students do not know you exist.
Make a nice JD/ call for interns, and post on websites like Lawctopus.
You can send the same to us at the iPleaders blog, and we will happily publish it for no charges. If you want a sample JD, just revert and ask us by replying to this email. We will even forward it to the network of our students at LawSikho. We share new internship opportunities almost every day with our students, who happen to be a lot better than the average law student in terms of knowledge and skills. We can also cover you on the LawSikho Youtube channel, which can lead to an increase in internship and job applications.
Also, you should probably consider visiting local law colleges and giving some free lectures, help law students to develop practical knowledge. We have deep relationships with hundreds of law colleges and we help them to organize good guest lectures.
Feel free to reach out to us so we can see if we can connect you with a law school in our network for offering guest lectures. This would lead to good law students applying to you for internships and also help you to build a stronger professional brand and network.
How to draft the perfect Call for Interns that will attract highly talented interns to my firm/practice?
Let me help you out. Respond to this and ask me for it. I will get the template sent to you.
Do me a favour, will you? Please refer these courses we offer on LawSikho to both lawyers and law students who need them, after you check out the amazing syllabus and training methodology:
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 Pranjal Rathore studying in Maharashtra National Law University, Aurangabad pursuing B.A.LL.B.(Hons.). In this article, the author has explained and covered two major topics under IPC.
Introduction
Presently, a large share of criminal cases, more specifically, in the Courts of Judicial Magistrate First Class in India, is ‘Hurt’ cases. For example offences culpable under Section 323, 324, and 326 of Indian Penal Code, 1860. There is no criminal Court without these cases. ‘Hurt’ is known as influence damage to, prompt torment to, harm, debilitate, harm, wound, cripple, weaken, harm. In different words, it implies ‘be unfavourable to’. In the event that a delineation utilizes “wounds” as an action word, it doesn’t separate between the damage of “simple nature” or ”grievous nature”. The designers thought that it was hard to draw a line between those substantial damages which are serious in nature and those which are slight. They say that to draw such a line with great precision was totally impossible. Therefore, specific sorts of hurt were assigned as grievous.
Simple Hurt
Hurt may be described as the bodily pain that is resulting from real contact with the frame by an aggravated assault. There’s no radical difference between assault and harm. Section 319 of the Indian Penal Code, 1860 (hereinafter “IPC”) defines hurt as: “whoever reasons bodily pain, disorder or disease to any man or woman is said to have caused harm.” The section does not outline the offence of inflicting harm. It defines best the time period hurt and does not describe the situations underneath which it can be brought on.
To constitute any one or more of essentials of simple hurt must be present:
Bodily Pain
Infirmity to another
Disease
Bodily Pain
According to Section 319 of the Indian Penal Code, whoever causes bodily ache, disorder or disease to any individual is said to cause hurt. The expression ‘physical pain’ means that the pain must be physical instead of any mental pain. So mentally or emotionally hurting anyone will no longer be ‘harm’ inside the meaning of Section 319. However, to be covered under this section, it isn’t always important that any visible injury should be precipitated at the sufferer. All that the section contemplates is the inflicting of bodily pain. The diploma or severity of the ache or pain isn’t a fabric element to decide whether Section 319 will apply or not. The duration of ache or pain is immaterial. Pulling a girl with her hair would amount to hurt.
In the State vs Ramesh Dass on 22 May 2015 In a hospital, passing through the corridor, in the new surgical block location, an unknown public individual came from the front and attacked the woman. That individual pulled her hair and threw her to the ground. He hit her on her head together with his hand. Accused was convicted for the offences under Section 341 and 323 of the IPC and acquitted for the offence under Section 354 of the IPC.
Infirmity to another
Infirmity denotes the bad state of frame of mind and a state of transient intellectual impairment or hysteria or terror would constitute disease inside the meaning of this expression inside the section. It is an incapability of an organ to carry out its everyday function, whether temporarily or completely. It may be delivered through the administration of a toxic or poisonous substance or by means of taking alcohol administered by way of any other person.
Jashanmal Jhamatmal vs Brahmanand Swarupanand [AIR 1944 Sind 19]:In this situation, the respondent has been evicted with the aid of the owner. He attempts to get revenge via vacating others from that constructing too. Respondent later confronted with A’s spouse with a pistol in his hand.
Disease
A communication of ailment or disease from one individual to another through the way of touch would constitute hurt. But, the idea is unclear with respect to the transmission of sexual sicknesses from one individual to every other. For instance, a prostitute who had intercourse with a person and thereby communicated syphilis changed into held in charge under Section 269 of the IPC for spreading infection and not for inflicting hurt due to the fact that the interval between the act and sickness turned into too far away to attract Section 319 of the IPC.
In Raka vs. Emperor, the accused was a prostitute and she inflicted syphilis to her customers. It was held that accused, the prostitute was liable under Section 269 of IPC- negligent act likely to spread infection of any disease dangerous to the life of another person.
Intention or Knowledge
Intention or knowledge is an important aspect of causing hurt to an individual. A person who intentionally sets out to purpose shock to somebody with a weak coronary heart and succeeds in doing so, he is said to have caused hurt. Any bodily ache due to management of capsules can be protected under ‘harm’. Whilst the harm isn’t always severe and there is no purpose to cause death, or grievous hurt, the accused could be guilty of inflicting harm most effective, despite the fact that death is caused.
In Marana Goundan v. R [AIR 1941 Mad. 560] the accused demanded money from the deceased which the latter owed him. The deceased promised to pay later. Thereafter the accused kicked him at the abdomen and the deceased collapsed and died. The accused changed into held guilty of causing hurt as it couldn’t be stated that he meant or knew that kicking at the abdomen become in all likelihood to hazard existence.
Section 321 of the IPC defines voluntarily causing harm as whoever does any act with the intention of thereby causing harm to any person, or with the expertise that he’s likely thereby to reason hurt to any individual, and does thereby motive harm to any person, is stated: “voluntarily to motive hurt”. What constitutes a selected offence relies upon the character of the act achieved (actus reus) but additionally upon the character of aim or know-how (mens rea) with which it’s far carried out. Section 319 defined the nature of the actus reus, which might constitute the offence of voluntarily causing harm, punishable under Section 323, and Section 321 describes the mens rea necessary to represent that offence. Goal and information need to be proved. The person in reality hurt wants now not always be the person who becomes intended to be hurt. Section 321 describes the situations that dress the act with factors of criminal activity, making it an offence.
The instances are:
doing of an act,
to any person,
with the goal or know-how of causing harm.
Grievous Hurt
The draftsman of IPC found it tough to draw a line among those physical hurts, which can be severe, and people who are moderate. However, they special certain types of hurts as grievous hurt.
The following kinds of hurt only are termed as “grievous”:
Emasculation,
Permanent injury to eyesight or either of the eye,
Permanent deafness or injury to either of the eye,
Privation of any member or joint (loss of limb),
Impairing of Limb,
Permanent disfiguration of the head or face,
Fracture or dislocation of a bone or tooth,
Any hurt which risks life or which causes the victim to be during the time of twenty days in severe bodily pain, or unable to follow his ordinary pursuits.
(a) Emasculation: The first type of grievous hurt is depriving a person of his virility. This clause is confined to men and was inserted to counteract the practice commonplace in India for women to squeeze men’s testicles at the slightest provocation. Emasculation can be resulting from causing such harm to the scrotum of a person as has the effect of rendering him impotent. The impotency prompted ought to be permanent, and no longer simply temporary and curable.
(b) Injuring eyesight: Some other injury of identical gravity is the permanent deprivation of the sight of either eye or of both the eyesight. Such harm has to have the effect of permanently depriving the injured of the usage of one or both of his eyes. The test of gravity is the permanency of the harm because it deprives a person of the usage of his sight and additionally disfigures him.
(c) Inflicting deafness: The everlasting deprivation of hearing of both ears is less serious than the above-mentioned harm as it does no longer disfigure a person, however handiest deprives him of using his ear. But, it’s serious damage depriving someone of his sense of listening to. The deafness has to be permanent to attract this provision. Such harm may be resulting from blow given on head, ear or the one’s elements of the head which speak with and injure the auditory nerves or with the aid of thrusting a stick into the ear or placing into ear a substance which reasons deafness.
(d) Loss of limb: Everlasting deprivation of any member or joint is some other grievous hurt, whereby a person is rendered much less able to guard himself or to harass his adversary. ‘member’ method not anything extra than an organ or a limb. ‘Joint’ refers to an area where two or more bones or muscle mass be a part of. Their permanent deprivation needs to involve such damage to them as makes them permanently stiff, so that they are not able to perform the everyday function assigned to the human body structure.
(e) Impairing of a limb: The deprivation of a person to the use of member or joint includes lifelong crippling and makes a person defenceless and depressing. The provision speaks of destruction or permanent impairing of their powers, which might encompass no longer only overall however additionally a particular use of the limb or joint. Any permanent decrease of their utility would constitute grievous hurt.
(f) Everlasting disfiguration of the pinnacle or face: ‘Disfigure’ means to do a person a few outside hurts which detract from his private look, but does not weaken him. Branding a ladies cheek with red warm iron, it leaves permanent scars, amounts to disfiguration. a cut at the bridge of the nostrils of a woman due to a sharp weapon has been held to be everlasting disfigurement despite the fact that the inner wall become intact.
(g) Fracture or dislocation of a bone or teeth: It’s far every other species of grievous harm, which may additionally or may not be attended with everlasting disability. A fractured or dislocated bone may be set or rejoin, but on account of the extreme suffering to which it gives upward thrust, the harm is named as grievous. The number one means of the word fracture is ‘breaking’, though it isn’t always essential in case of fracture of the cranium bone that it should be divided into separate parts due to the fact it may consist simply of a crack; but if it is a crack, it must be a crack which extends from the outer floor of the skull to the inner surface. If there may be spoil with the aid of cutting or splintering of the bone or there is a break or gap in it, would add up to a crack inside the importance of clause 7 of Section 320. What must be seen is whether the cuts during the bones saw in the damage report are just shallow or do they impact a break in them. ‘Dislocation’ implies dislodging, being applied to a bone expelled from its typical associations with a neighbouring bone. A bone moved out of its attachment or put out of its joint is a disjoint bone.
(h) Any hurt which risks life or which causes the victim to be during the time of days in severe bodily pain, or unable to follow his ordinary pursuits.
Dangerous hurt: Three distinct classes of hurt are assigned as risky or dangerous hurt. These classes are autonomous of one another and hurt of any of the three classes would be grievous hurt. Injury is said to endanger life in the event that it might put the life of the harmed in danger. Basic injury can’t be called offensive or grievous since it happens to be caused on an indispensable piece of the body except if the nature and measurements of the damage, or its belongings, are with the end goal that in the assessment of the specialist, it really endangers the life of the victim. There is an exceptionally meagre line of distinction between ‘hurt which endangers life’ and ‘injury as is probably going to cause death’. In Mohammad Rafi v. Emperor, the accused caused damage on the neck of the perished from behind, the Lahore High Court held the accused at risk for under Section 322 (intentionally causing grievous hurt) for causing demise by grievous hurt as against guilty of culpable homicide not adding up to the murder. The articulation ‘endangers life’ is a lot more grounded than the articulation ‘risky or dangerous to life’. With a perspective on the reality of the damage bringing about the weakening of the person in question for a base time of twenty days, the Indian Penal Code has assigned certain hurts as grievous however they probably won’t be fundamentally risky or dangerous to life. A hurt may cause extreme substantial and severe bodily pain, but not be dangerous to life. Such a hurt is grievous hurt. In any case, it must be indicated that such hurt was adequate to cause serious bodily pain for twenty days. Else, it might happen that such agony or pain was caused yet there might be nothing to show that it was caused in outcomes of that damage. In conclusion, the trial of terribleness is the sufferer’s failure to take care of his standard interests for a time of twenty days. On the off chance that, where the impact of damage doesn’t last for twenty days, such a hurt can’t be assigned as grievous.
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Voluntarily Causing Grievous Hurt
Section 322 of the IPC characterizes ‘deliberately causing grievous hurt’ as pursues: Whoever deliberately causes hurt, if the hurt which he expects to cause or realizes that himself will generally be prone to cause is grievous hurt, and if the hurt which he causes is grievous hurt, is said “willfully to cause grievous hurt.” Explanation-An individual isn’t said willfully to cause grievous hurt with the exception of when he, the two causes grievous hurt and means or realizes that he generally will probably cause grievous hurt. Be that as it may, he is said intentionally to cause offensive hurt, if proposing or realizing that himself generally will probably cause grievous hurt of one kind, he actually causes grievous hurt of another sort. The clarification is undeniable and self-evident.
In any case, there must be proof that what the accused had planned or known to be likely wasn’t only hurt, yet grievous hurt. So as to attract this provision, Court needs to see that the accused expected to cause hurt, or that he realized that grievous hurt is probably going to be caused and that such grievous hurt is really caused. Regardless of whether the individual knows himself prone to cause grievous hurt, he is said to be intentionally causing terrible hurt. All together that an individual might be held liable for an offence of causing grievous hurt, it must be demonstrated that he either expected to cause or realized that himself will generally be liable to cause grievous hurt and not otherwise. The prerequisite in the clarification will be fulfilled if the guilty party had the information that by his demonstration he was probably going to cause grievous hurt. Clarification clarifies that either the element of aim or on the other hand that of information must be available so as to establish the offence of grievous hurt. So as to decide if the hurt is intolerable one, the degree of the hurt and the expectation of the guilty party must be considered.
Section 325 of the IPC recommends the discipline for intentionally causing hurt as pursues: Whoever, aside from for the situation accommodated by Section 335, willfully causes grievous hurt, will be rebuffed with the detainment of either portrayal for a term which may stretch out to seven years, and will likewise be obligated to fine. An individual is said to willfully cause grievous hurt when the hurt brought about by him, is of the idea of any sort of hurts listed in Section 320 of the IPC, and he expects or realizes that himself will generally be likely to cause grievous hurt. In Kalika Singh v. Province of Uttar Pradesh, a few wounds caused to complainant by blamed by clench hands and lathi incorporated a break caused to one side thumb by his fall on the ground during his beating by the accused. The Allahabad High Court held that the accused was liable under Section 325, even though the fracture was caused by the fall and not by the lathi. Sections 326, 329 331, 333, 335 and 338 prescribe punishment for causing grievous hurt under various other circumstances.
Causing Hurt or Grievous Hurt by “Dangerous Weapons”
As indicated by Section 320, grievous hurt means hurt which brings about a particular sort of explicit wounds. These wounds incorporate deprivation of eyes or ears, harm to joints, undermining, and so on. Section 326 fundamentally depicts an irritating type of unfortunate hurt. Under this offence, the deplorable hurt must outcome from instruments of firing (weapons), wounding or cutting (blades). It can likewise emerge from different weapons which are probably going to cause demise or death. Indeed, even explosives, harms, destructive substances or flames bringing about grievous hurt attract this provision. Since the odds of offensive wounds are progressively under these conditions, the discipline is likewise increasingly serious. An accused under Section 326 can be punished with life detainment or detainment as long as 10 years.
“Whoever deliberately causes hurt on grave and sudden provocation, on the off chance that he neither means nor realizes that himself will generally probably make hurt any individual other than the individual who provoked, will be rebuffed with detainment of either description for a term which may reach out to one month, or with fine which may stretch out to 500 rupees, or with both.”
Intentionally causing offensive hurt on incitement (Sec. 335)
“Whoever intentionally causes grievous hurt on grave and unexpected incitement or provocation, on the off chance that he neither expects nor realizes that himself will generally probably make intolerable hurt any individual other than the individual who gave the incitement or provoked him, will be rebuffed with detainment of either depiction for a term which may reach out to four years, or with fine which may stretch out to 2,000 rupees, or with both.
Explanation:-
The last two sections are dependent upon the same provision as Exception 1, Section 300.”
The fundamental elements of Sections 334 and 335 are as per the following:
The guilty party ought to intentionally cause hurt or shocking hurt;
It ought to be caused by provocation;
The incitement caused ought to be both grave and abrupt;
He ought not wished or intended to cause hurt to any individual other than the individual who incited;
He ought not to have information that his demonstration is probably going to make harmed or offensive hurt any individual other than the individual who incited.
All together that Sections 334 and 335 ought to apply, it is critical to building up that there was incitement and such incitement was grave and abrupt. On the off chance that the incitement is just unexpected yet not grave, the offence won’t be one culpable under both of these Sections. Thus, if the incitement is just grave and not unexpected, the demonstration won’t add up to an offence under these sections. The trial or check of ‘grave and unexpected’ incitement is whether a sensible man having a place with a similar class of society as the accused, put in the circumstance in which the accused was set, would be so incited as to lose his control. In the event that the hurt caused is basic hurt, at that point the discipline endorsed under Section 334 is detainment of either depiction, which may stretch out to one month or with fine which may reach out to Rs. 500 or with both. On the off chance that the hurt is grievous hurt, at that point the discipline endorsed under Section 335 is detainment of either depiction for a term which may reach out to four years or with fine which may stretch out to Rs. 2000 or with both. The offence under Sections 334 and 335 is cognizable however summons will usually issue in the main example. It is bailable, compoundable and is triable by a Magistrate.
Dangerous Weapons or Dangerous Means
In criminal law, the expression, “dangerous weapon” alludes to a gun, or whatever another article that is utilized or proposed to be utilized so that it could make demise or genuine damage another individual. Legitimately, the term is a lot more extensive than what many people think. For example, respondents who have been seen as liable of ambush with a savage weapon have acted in an accompanying way:
Assaulting somebody with a bat or other sports equipment
Employing a blade at somebody, expecting to harm her
Pointing a firearm at somebody’s head and taking steps to pull the trigger
Deliberately utilizing a vehicle to hit another driver or person on foot
Pursuing an individual with a hatchet
Notwithstanding firearms and blades, different things can be utilized as lethal or dangerous weapons. A couple of models include broken jugs, hounds, control instruments, cultivating devices, gruff items, pontoons, and any mechanized vehicles. There is a motivation behind why the law is expansive, and that is to keep away from any escape clauses in figuring out what comprises a dangerous weapon. Fundamentally, anything that can prompt incredible substantial damage and additionally passing is culpable in an official courtroom. In certain states, an individual’s hands, feet, and teeth may all be utilized as destructive weapons. In spite of the fact that the human body itself is anything but a lethal weapon, it can positively be utilized to cause someone else extraordinary real hurt or demise/death. Different states, for example, California characterize a lethal weapon as an article that is outer to the human body. Be that as it may, California additionally has a provision that expresses “any methods for power liable to create extraordinary substantial damage,” which would warrant an attack with a dangerous weapon charge. On the off chance that somebody assaults an individual by stifling, kicking, or punching, he could confront attack with a fatal weapon. A vehicle is viewed as a lethal and dangerous weapon in situations where the driver planned to hit another driver or walker. Some driving impaired cases are additionally accused as an attack of a lethal or dangerous weapon.
Causing Grievous Hurt by use of Acid
As per Section 326A of Indian Penal Code,” Whoever makes changeless or halfway harm or distortion, or consumes or mutilates or distorts or cripples, any part or parts of the body of an individual or causes offensive hurt by tossing corrosive on or by regulating corrosive to that individual, or by utilizing some other methods with the expectation of causing or with the information that he is probably going to cause such hurt, will be rebuffed with detainment/imprisonment of either portrayal for a term which will not be under ten years however which may stretch out to detainment forever(life imprisonment), and with fine.
“According to Section 326B of Indian Penal Code,” Whoever tosses or endeavors to toss corrosive on any individual or endeavors to control corrosive to any individual, or endeavors to utilize some other methods, with the aim of causing lasting or fractional harm or deformation or distortion or inability or grievous hurt to that individual, will be rebuffed with detainment of either depiction for a term which will not be under five years yet which may reach out to seven years, and will likewise be subject to fine.” Section 357B of Code of Criminal Procedure 1973 sets down, ” The remuneration payable by the State Government under Section 357A will be notwithstanding the payment of fine to the unfortunate casualty under Section 326A or Section 376D of IPC. Section 357C of Code of Criminal Procedure 1973 sets out, “All emergency clinics, public or private, regardless of whether run by the Central Government, nearby bodies or some other individual, will quickly give the emergency treatment or therapeutic treatment, free of cost, to the casualties of any offense secured under Section 326A, 376, 376A, 376C, 376D or 376E of IPC and will promptly educate the police about such an incident.
Recently included seventh provision of Section 100 of the IPC sets out that the privilege of private barrier of body stretches out to deliberately causing death or of some other damage to the attacker in the event of a demonstration of tossing or managing corrosive or an endeavour to toss or regulate corrosive which may sensibly cause the dread that terrible hurt will generally be the result of such act. For the first time remuneration was given to corrosive unfortunate casualty on account of Laxmi v UOI. In Morepally Venkatasree Nagesh v State of AP, the accused was suspicious about the character for his significant other and emptied mercuric chloride into her vagina, she later kicked the bucket because of renal disappointment. The accused was charged under Section 302 and 307 of the IPC. In the State of Karnataka by Jalahalli Police Station v Joseph Rodrigues, one of the most popular cases including corrosive assault. The accused tossed corrosive on a young lady named Hasina for declining his employment bid. Because of the corrosive assault, the shading and presence of her face changed which left her visually impaired. The accused was convicted under Section 307 for IPC and condemned to detainment forever(life imprisonment). Remuneration of Rs 2,00,000 notwithstanding Trial Court fine of Rs 3,00,000 was to be paid by the accused to the guardians for the victim.
The previously mentioned cases are obvious of the brutal repercussions looked by the unfortunate casualties because of the corrosive assaults. The administration is still in the quest for stringent measures.
Causing Hurt or Grievous Hurt to Extort Property
Under Section 330, the guilty party causes hurt for coercing an admission or data identifying with an offence or unfortunate behaviour. This, for the most part, applies to cops or police officers who mischief accused people to compel them to admit. The coercion on the unfortunate casualty can likewise happen to blackmail such admission or data from someone else. This hurt can likewise occur to oblige the unfortunate casualty to reestablish some property or significant security. For instance, an income official may torment an individual to propel him to settle up back payments of land income. Discipline for Section 330 incorporates detainment/imprisonment as long as 7 years alongside a fine. Section 331 is like Section 330 however it identifies grievous hurt rather than simply basic hurt. Since grievous hurt is progressively extreme, the discipline can reach out to detainment for a long time rather than 7 years.
Causing Hurt by Means of Poison
Under this provision, the guilty party must manage toxic substance or some other stunning, or unwholesome medication to the person in question. The guilty party must do as such with the aim of causing hurt or for submitting or encouraging an offence. Such a goal is significant and no offence emerges without it. Discipline for Section 328 incorporates detainment as long as 10 years with fine. Whoever directs to or causes to be taken by any individual any toxic substance or any stunning, or unwholesome medication like poison, or other thing with plan to make hurt such individual, or with aim to submit or to encourage the commission of an offence or realizing that it will generally be likely that he will in this manner cause hurt, will be rebuffed with detainment of either portrayal for a term which may stretch out to ten years, and will likewise be at risk to fine.”
Coming up next are the basic elements of Section 328:
The wrongdoer ought to manage a toxic stunning or unwholesome medication; or
Such an individual ought to be with the goal to cause hurt; or
With an aim to submit or encourage the commission of an offence; or
Such an individual ought to be with the information that it is probably going to cause hurt.
The object of Section 328 is clearly to rebuff people who violate others by putting them out of their faculties by methods for stunning medications, which encourages the commission of wrongdoing as well as in an incredible measure counteracts its recognition. In any case, there must be the regulating of any toxic substance, and so forth., making it be taken by another. The words ‘any individual’ means any individual other than the guilty party. The words ‘manage’ and ’cause to be taken’ are planned to apply to two particular strategies for conferring poison and so on. The principal refers to the giving of toxic substance legitimately to the sufferer, while the expression ’cause to be taken’ refer to a taking by the sufferer under conditions when he was not a free operator to do something else.
The models for regulating ‘unwholesome medication’ are:
the juice of certain leaves to certain residents by method for the experience;
powder of dhatura to a lady to loot her adornments while she was silly;
a spouse, not knowing the hazardous properties of aconite, managed it to her significant other by blending it in with his nourishment and he kicked the bucket;
where an accused directed a poisonous substance to an individual so as to burglarize him when the individual was oblivious or stunned, it would be an occurrence of overseeing inebriating substance for encouraging the commission of an offence. The offence under Section 328 is finished regardless of whether no hurt is caused to the individual to whom the toxic or some other stunning or unwholesome medication is given. Under Section 324 genuine causing of hurt is basic; under Section 328 unimportant organization of toxin is adequate to carry the guilty party to equity. This offence is cognizable, non-bailable, non-compoundable and is triable by the Court of Session. The most extreme discipline awardable under Section 328 is thorough detainment stretching out as long as ten years.
Causing Hurt or Grievous Hurt to Deter Public Servants
Deliberately causing hurt to deter public servant from his obligation (Sec. 332)
“Whoever willfully hurts any individual being a community worker/public servant in the release of his obligation all things considered local official, or with aim to forestall or hinder that individual or some other local official from releasing his obligation in that capacity local official, or in result of anything done or endeavored to be finished by that individual in the legitimate release of his obligation accordingly local official, will be rebuffed with detainment of either portrayal for a term which may stretch out to three years, or with fine, or with both.”
Deliberately making grievous hurt to deter public servant from his obligation (Sec. 333)
“Whoever intentionally makes grievous hurt any individual being a local official in the release of his obligation all things considered community worker, or with goal to avoid or deflect that individual or some other local official from releasing his obligation all things considered local official, or in outcome of anything done or endeavoured to be finished by that individual in the legitimate release of his obligation all things considered local official, will be rebuffed with detainment of either portrayal for a term which may reach out to ten years, and will likewise be at risk to fine.”
Coming up next are the fundamental elements of Sections 332 and 333:
The guilty party ought to willfully hurt or grievous hurt a local official or public servant;
It ought to be caused:
a)When the community worker acted in the release of his obligations;
b)To avoid or dissuade that local official or some other community worker from releasing his obligation; or
c) In the outcome of anything done or endeavoured to be finished by the local official in the release of his obligation.
The term ‘public servant’ is characterized under Section 21 of the Code. Section 332 and 333 apply just if the local official was acting in the release of his obligation as a community worker or it ought to be demonstrated that it was the expectation of the blamed to avoid or stop the public servant from releasing his obligation. The articulation ‘in the release of his obligation all things considered local official’ signifies in the release of an obligation forced by law on such community worker in the specific case, and doesn’t cover a demonstration done by him in accordance with some basic honesty under the shade of his office. The obligation need not be to do a particular demonstration. ‘Counteractive action’ alludes or refers to a phase when the execution of the obligation is entered upon; ‘hinder’ refers to a phase when it has not been at this point entered upon. “Or on the other hand in result of anything done” where case the attack would be submitted by method for the counter. These words show that the offence under the section can be submitted not just when an individual is attacked while he is releasing an open obligation yet in addition when he is attacked in the outcome of the release of his obligation.
Section 353 of the Code also manages criminal attack on community worker to discourage him from the release of his obligation. People other than community workers who may go with them for help and direction are not qualified to guarantee unique security under Sections 332 and 333. The offence under Section 332 is cognizable and warrant ought to customarily issue in the principal occurrence. It is non-bailable and not compoundable and is triable by a Magistrate of the top of the line. The offence under Section 333 is cognizable, however, warrant ought to commonly issue in the primary occurrence. It is both non-bailable and non-compoundable and solely triable by the Court of Sessions. Discipline under Section 332 is detainment/imprisonment of either depiction for a term which may stretch out to three years, or with fine or with both. Discipline under Section 333 is detainment of either portrayal for a term which may reach out to ten years, and will likewise be subject to fine.
Causing Hurt or Grievous Hurt by Endangering Life of Personal Safety of Others
Act endangering life or individual wellbeing of others (Sec. 336)
“Whoever does any demonstration so impulsively or carelessly as to imperil human life or the individual security of others, will be rebuffed with the detainment of either portrayal for a term which may stretch out to a quarter of a year, or with fine which may reach out to 200 and fifty rupees or with both.”
Causing hurt by act endangering life or individual wellbeing of others (Sec. 337)
“Whoever hurts any individual by doing any demonstration so impulsively or carelessly as to imperil human life, or the individual wellbeing of others, will be rebuffed with detainment of either depiction for a term which may stretch out to a half year, or with fine which may reach out to 500 rupees, or with both”.
Causing grievous hurt by act endangering life or individual wellbeing of others (Sec. 338)
“Whoever makes shocking hurt any individual by doing any demonstration so imprudently or carelessly as to jeopardize human life, or the individual wellbeing of others, will be rebuffed with detainment of either depiction for a term which may reach out to two years, or with fine which may stretch out to one thousand rupees, or with both”.
The fundamental elements of these sections are as per the following:
The act of the charged probably brought about simple or grievous hurt;
The act must be done in a rash and careless way;
The impulsiveness or carelessness must be to the degree of imperilling human life or individual wellbeing of others.
These areas will be pertinent in situations where hurt caused is an immediate consequence of the carelessness or rash act. Unimportant carelessness or imprudence isn’t sufficient to bring a case inside the ambit of Section 337 or Section 338. Carelessness or imprudence demonstrated by proof must be, for example, ought to essentially convey with it a criminal obligation. Regardless of whether such risk is available may rely upon the level of culpability having respect for each situation to the specific time, spot and conditions. On the off chance that it is only an instance of remuneration or reparation for damage or harm caused to an individual or property, it is plainly not culpable under both of the areas. The culpability to be criminal ought to be, for example, concerns not just the individual harmed or property harmed however the security of people in general out and about. In any case, the nature and degree of the hurt or harm will be excess in fixing criminal obligation for carelessness under these areas.
An offence under Section 336 is punishable with the detainment of either depiction for a term which may stretch out to a quarter of a year or with fine which may reach out to Rs. 250 or with both. An offence under Section 337 is punishable with detainment/imprisonment of either depiction for a term which may reach out to a half year, or with fine which may stretch out to 500 rupees or with both. An offence under Section 338 is punishable with the detainment of either depiction for a term which may stretch out to two years, with fine which may reach out to one thousand rupees or both. Offences under Sections 336, 337 and 338 are cognizable and subject: Offense under Section 336 is non-compoundable, though under Sections 337 and 338 are compoundable.
Proposals for Reform
It is suggested that a changed rule on offences against the individual ought to not contain the meaning of goal and that the significance of expectation ought to keep on being chosen by general standards of criminal law.
It is suggested that a changed rule on offences of brutality ought to give for the accompanying two offences:
physical attack, where an individual deliberately or carelessly applies power to or causes an effect on the body of another, without the assent of that other; or
the undermined attack, where an individual deliberately or carelessly causes another to feel that any such power or effect is or might be fast approaching and that different doesn’t agree to the lead-in question.
It is suggested that a transformed rule on offences of viciousness ought to give for an offence of bothered attack, characterized as pursues:
the lead component would be equivalent to that for physical or compromised attack (that is, it would be one offence that can be submitted in two different ways);
the attack must have the aftereffect of causing some damage;
the flaw component ought to be equivalent to that for the physical or compromised attack, without the requirement for aim or foolishness in connection to the damage caused;
the offence ought to be triable just in a judges’ court; and
the most extreme sentence ought to be 12 months.
It is prescribed that a transformed resolution on offences of brutality ought to contain offences of:
causing genuine damage aiming to oppose, avoid or end the legal capture or confinement of himself or a third individual;
attack aiming to oppose, counteract or end the legal capture or confinement of himself or a third individual. The greatest punishment for the offence understatement 6 ought to be set at over 7 years yet under life.
It isn’t prescribed that offences of presenting people to the peril of ailment, or of neglecting to uncover infection.
The offence under condition 3, of deliberately or foolishly causing damage, ought to avoid situations where the hazard taken is, for example, to be commonly adequate in the conventional lead of everyday life, however, we think about this is adequately guaranteed by the foolishness necessity of the offence.
It is prescribed that a changed rule overseeing offences of savagery ought to incorporate an offence of taking steps to slaughter, influence genuine damage to or assault any individual, including situations where the risk is restrictive on the direction of the individual to whom the danger is made or some other actuality or event.
It is suggested that a changed rule overseeing offences of brutality ought to incorporate an offence of support to kill, and this ought to incorporate situations where the support is contingent.
Conclusion
As observed above, ‘Hurt’ is mischief, injuring, torment, irritation, throbbing, inconvenience, hurting, stinging, throbbing, aches. In every single criminal court, the greater part of the cases is ‘deliberately causing hurt’ cases. When there is a neighbourly settlement between the gatherings in non-compoundable hurt cases like 324 and 326 IPC, it is apparent from the decisions of our legal executive and judiciary that tolerant view is being taken. The Law Commission in its 237th report prescribes that Section 324 IPC ought to be inducted into the ambit of Section 320 CrPC and it ought to hold its unique situation in Table 2 attached to sub-section(2) thereof. Medicinal narrative confirmations like medico-legal reports on harms arranged by the restorative specialists are significant for the courts in making their lawful decisions. The kind of wounds and weapons, lawful classes of damages and their ages must be explicitly noted in the damage reports: Medicolegal preparing and encounters fortify the capacities of the restorative master observers.
In my view, to diminish pendency of these cases, it is the obligation of the Government of India to find a way to revise Section 320 of Cr.P.C to compound Section 324 of IPC cases. The injured individual is set up to support the hostile direct of the blamed who became reprimanded and apologetic. Criminal law should be receptive to observe such circumstances and shall give solution to end the criminal procedures in regard to specific sorts of offences. That is the justification behind the exacerbating of offences. Unexpectedly, the aggravating plan assuages the courts of the weight of aggregated cases. Make certain to taste your words before you let them out.
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The word misappropriation is defined under Section 403 of Indian Penal Code,1860 which is defined as whoever;
Dishonestly misappropriated for its own use or another person at the instance of it.
Any movable property punishment for the offence is imprisonment of either description which may extend to two years or with fine or with both Section 405 is based on criminal breach of trust. Here ‘trust’ is the essential and ‘breach’ of this makes the offence under section 405 which is punishable with imprisonment of either description which may extend to three years or seven years (depending on the person who has breached the trust) or with fine or both.
In other words, when one person dishonestly misuses or misappropriate the property provided the property is movable in nature for own use or another is known as criminal misappropriation.
Essential Ingredients
To constitute the offence of misappropriation the following essential ingredient must be there;
The property must be of Another
For constituting criminal misappropriation the essence behind this act is that the property must be of some other owner other than the person using it dishonestly for his own use.
Case 1
Person A took something from person B by mistake or unknowingly but returned it when he found property belong to person B. In this case, there is no misappropriation of property.
Case 2
Person A took something from person B by mistake or unknowingly but don’t return it even when he found property belong to person B.
Finding of Property
Someone gets a property of others on the roadside, let’s say, a gold ring or wallet and he keeps it to himself since the real owner is unknown but even if the true owner is identified he uses and keeps the property with himself this act is an offence known as misappropriation of property.
Explanation to this section involves that in case of a finding of the property if one has taken all the careful measures to ascertain the true owner and kept the goods for a subsequent time for restoring it to the real owner but if instantly misappropriate the goods he would be liable under this section of IPC.
Converts to Own Use;
The essence ‘converts to his own use’ signify the usage or deals with the property in decrying the right of the owner.
Theft of property by servant or clerk stealing the property of his master is a punishable offence with even greater severity under Section 381 of Indian Penal Code. This is so because the master or owner impose greater trust in them to look and care about the property.
Therefore, theft of these property amounts to a violation of that trust. The punishment for this offence in the theft of this possession of these properties is punishable of imprisonment extends to 7 yrs with a subsequent fine.
Dishonest Intention
Whoever dishonestly misappropriated or converted to his own use any movable property shall be punished with imprisonment of duration which may extend to two years or with fine or more.
For example;
When two people, A and B jointly own a property lets say a car and later B without the consent of A sold that particular good for his own self motive.
Found some property whose owner can be found and you used it personally for own use. Using of property whose owner is not known but you used it immediately for your own gain without waiting for sufficient time. A Criminal complaint regarding this matter is not maintainable under court, referring to the case U. Dhar & Anr vs The State Of Jharkhand.
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Theft under IPC
Theft under IPC is an act of stealing property belonging to someone else. However, its certain requirements and specific ingredients.
According to Section 378 theft includes misappropriating taking or stealing any movable property out of the possession of a person. This act of stealing must be without the consent of the concerned person. Therefore, in order to constitute, it must fulfil the following conditions:
Dishonest intention to take the property
Movable property, not immovable one
Without the consent of the concerned person
Must move the property to execute the act
All these essentials must be there to fulfil the requirements. If any of the following essentials are not present then the offender is not guilty of the offence of theft.
Distinction between Theft and Criminal Misappropriation
Before discussing the distinction between theft and criminal misappropriation lets get clear about the similarities between the two which areas:
Movable property- For constituting the offence of criminal misappropriation and theft the basic common element behind this is that the means of property or goods should be movable in nature for committing these acts. To be precise, the property should move from one place to another for executing the purpose of theft or misappropriation of the property.
Dishonest intention- The intention or the motive behind these acts should be dishonest. The act involves fraud or misappropriation activity by default.
Now talking about the differences
In the case of theft, the intention behind this act is dishonest or malafide with irrational motive and the person constituting theft is cognizant about the process that he is doing wrong.
Whereas, in the case of criminal misappropriation initially there may be the case that there is no dishonest intention in the finder of goods for misappropriating the goods but the offence is committed when after due time the property is detained with the wrong person illegally without the knowledge of the actual owner of the property. Later after some time, there might be the wrong intention to commit misappropriation of the property for his personal use.
The second difference between the two is that in theft the consent of the true owner is not known to the party on the other hand in case of misappropriation initially the true owner gave consent to the person for using the property and later maliciously the person used it for his own purpose. In theft, the consent is nowhere involved.
Timing of the offence- In theft, the moment when someone took the property of the owner dishonestly he committed the offence of theft. Rather in case of misappropriation, the offence is committed when the person unduly denies giving the property to the true owner he committed the offence of misappropriation without the consent of the true owner in his own favour. Then the act of misappropriation is committed.
Offences Affecting Property – Criminal Breach of Trust
The Indian Penal Code, 1860 contains various offences against properties under Chapter XVII. Most of these offences require physical movement of properties by the aggrieved person, some of them just require a dishonest intention mind. For instance, criminal breach of trust is one such offence. The basic element of this offence is the infringement of trust with respect to the usage of goods or properties.
Aggravated Form of Criminal Misappropriation
Section 404 is an aggravated form of Criminal misappropriation. This section confers to afford protection of a deceased to the property under which the circumstance needs special protection.
Key Ingredients
To constitute Section 404 of the Indian Penal Code these ingredients must be fulfilled.
(i) The good must be any movable property;
(ii) Such property should be under the possession of the deceased at the time of death of the owner;
(iii) The accused misappropriated it or converted it for his own use;
(iv) The offender did it dishonestly.
An offence under this Section is non-cognizable, bailable, non-compoundable, and capable of being tried by a magistrate of the first class.
Scope of the Section
An individual who converts any movable goods or property to his own use must be punished with imprisonment of either subsequent term which may extend to two years or both.
Criminal Breach of Trust
According to Section 405, this offence requires a person to confer a property or dominion over it onto others. Moreover, this is basically a form of trust which the victim accords on the offender with respect to his property.
Secondly, the offender must misappropriate or convert that property to his own use. He may even fraudulently use or dispose of that property by infringing a law to control or direct according to rule principle of law for proper functioning. This may even lead to the breach of any express or implied contract between the defendant and the victim himself.
For instance, A may lend his car to his friend B to use it for transportation. B, instead, uses it for transporting illegal goods like ivory. Here, B is guilty of criminally breaching A’s trust.
Essential Ingredients
Entrustment
Entrustment means control over the property by one person to the other in such a way that the person on whose interests the property is handed over continues to be an owner. The word entrustment is very essential to constitute the offence of criminal breach of trust.
Following the case, Surendra Pal Singh Vs. State of Uttar Pradesh describes the same.
The only difference between the two is that in the scope of criminal breach of trust, the defendant is entrusted with property or with dominion or control over the property. As the title to the breach of law itself suggests, entrustment of property is an essential requirement before any offence under this section takes place. The language of the section is very wide. The words used are ‘in any manner entrusted with property’. So, it extends to entrustments of all kinds-whether to clerks, servants, business partners or other persons, provided they are holding a position of trust. “The term “entrusted” found in Section 405 IPC rules the word “with the property”.
Property
The defendant must spend with a trust or secure the property with authority. There must an entrustment of property. Presiding over the case of Ramaswami Nadar State of Madras, SC held that the basic requirement of entrustment must be there to fulfil the essentials of criminal breach of trust offence under Section 405.
Dominion Over Property
The domain is the superior right of property inland, it is the most and fullest right of goods or property which is a legal concept derived from dominium of the Roman law. The domain is the right of the property as well as the possession or use of the property. It is absolute and complete ownership of property or land. The government can under some situation seize property without or with permission.
Misappropriation
‘Dishonest misappropriation’ is the basic element of this action. Dishonesty is as defined in Sec.24, IPC, generating wrongful gain or wrongful loss to a person. The meaning of wrongful gain and wrongful loss is defined in Section 23 IPC. In order to constitute an offence, it is not enough to attain that the money has not been accounted for or mismanaged. It has to be accepted that the defendant has insincerely put the property for his own use or to some without the permission of the owner before using. Dishonest intention to misappropriate is a crucial fact to be proved to bring home the charge of criminal breach of trust.
Case Krishan Kumar V Union of India
Misappropriation arises when a person illegally sets apart or assigns to some other person use to which it should assign to some other person to the exclusion of the owner in case of actus rea it will consist of either of the four positive acts:
Conversion
Misappropriation
Disposal of property
User
Aggravated Forms of Criminal Breach of Trust
The section of 407- 409 includes aggravated form of criminal breach of trust which talks about three distinct classes to which entitles belong i..e.a carrier, a warehouse keeper and a wharfinger who is the owner of a wharf who received some property or goods under some contract who is expected to carry the goods in the safe custody with them.
Whosoever, being entrusted with the property dishonestly converts or misappropriation for his own use in breach of any law or any legal contract commits ‘Criminal breach of Trust’.
Section 407 confers with ‘criminal breach of trust by carrier’. Carrier is basically a person who attempts or seek to transport goods for hire.
So, according to the section of 407, if any carrier, warehouse keeper or a wharfinger who is entrusted with that property not necessarily movable but dishonestly misappropriated or converts the property for own use then, in that case, he shall be punishable under the offence of criminal breach of trust. And the punishment for the same would be liable with imprisonment of 7 years with a subsequent amount of fine.
Section 408 deals with ‘criminal breach of trust by clerk or servant’
Conclusion
We come to the conclusion that criminal breach of trust and criminal misappropriation cannot be considered as the same offence. there is no contractual relationship of the accused with the actual owner of the property in case of criminal misappropriation.it applies on the conversion of the property where the offender gets possession of the property by any casualty or anyhow where property must be movable and he apparently misappropriated it. In the case of criminal breach of trust, there is a legal contractual relationship of the accused with the actual owner of the property. Property can be either movable or immovable. It applies to the conversion of property held by a person in a fiduciary capacity. Further, the owner or we can say the debtor and the defendant should have a fiduciary relationship with each other.
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A listed company has been defined in the Companies Act, 2013 to mean a company which has listed any of its securities on a recognized stock exchange. Thus, a listed company is not just a public limited company but can also include private companies that choose to list their debt securities on a recognized stock exchange. There are several reasons for a company to list itself on a stock exchange such as having access to a phenomenal number of investors who can help raise finances for a company’s operations and expansion, greater visibility in the market etc. Being a listed company means its securities can be bought and traded by the general public thus creating an interest in the company. Hence the Companies Act 2013, and SEBI(Listing Obligations and Disclosure Requirements) Regulations (hereinafter referred to as “SEBI Regulations”), 2015, have set out a list of certain disclosures that listed companies need to make on a continuous basis.
Rule 4 of SEBI Regulations lists out certain principles that need to be followed by such listed companies to ensure transparent, comparable and truthful disclosures, while Rule 6 necessitates the appointment of a Company Secretary as the compliance officer who shall be responsible, among other things, for following the principles laid down under Rule 4, and for acting as an intermediary between the company and the stock exchange it is listed on. With these checks in place, the following are the disclosures that listed companies need to make on a continuous basis1:
As part of their grievance redressal mechanism, listed companies need to file a quarterly statement giving the number of investor complaints pending at the beginning of the quarter, those received during the quarter, disposed of during the quarter and those which are remaining unresolved at the end of the quarter. Such a statement needs to be filed within 21 days from the end of each quarter.
Listed companies are to submit to the relevant stock exchanges and publish on their websites, a consolidated list of all related party transactions entered by the company. This is to be done within 30 days of publishing its half year financial results. This disclosure is thus to be made twice a year.
Listed companies are necessitated to submit a compliance report, signed by the compliance officer or the CEO of the company, on corporate governance. This is to be submitted to the relevant stock exchanges on a quarterly basis within fifteen days from close of the quarter.
Listed companies are required to maintain a functioning website which is to be updated with correct disclosures regarding information listed out in Rule 46(2) under a separate section on their websites.
Note: Rules mentioned under serial numbers 2 and 3 are only to be complied by companies having paid up equity share capital not exceeding rupees 10 crores and net worth not exceeding rupees 25 crores. Likewise, there is also additional information mentioned in Rule 46(2) which needs to be published by this class of companies.
Listed companies have to submit as statements showing holdings of securities and the shareholding patterns of the companies to stock exchanges on a quarterly basis or on a half yearly basis for companies listed on SME (Small and Medium-scale Enterprises) exchanges.
Listed companies need to submit their (as well as of their subsidiaries if they have any) quarterly and year-to-date standalone financial results to stock exchanges. The companies also need to submit their (as well as of their subsidiaries if they have any) audited financial results and an audit report annually. The companies need to further submit standalone and consolidated financial results for the half year, by way of a note. For companies listed on SME (Small and Medium scale Enterprises) exchanges, ‘quarterly’ becomes ‘half yearly’ and ‘year-to-date’ does not apply. Rule 33 along with Part A of Schedule IV enumerates the way financial results are to be prepared and the disclosures to be made therein.
Listed companies also have to submit to the stock exchanges as well as publish on their websites, a copy of the annual reports (along with the notice of annual general meeting) sent to the shareholders. Contents and format of the annual report is enumerated in Rule 34(2), 53 (if applicable) and Schedule V of the SEBI Regulations. Disclosures required under Companies Act 2013 are also to be made. Pursuant to Rule 43(A) top 500 companies (based on market cap) have to formulate and disclose their Dividend Distribution Policy with the Annual Report.
An Annual Information Manual is also to be submitted to the stock exchanges.
Listed companies have to submit to the stock exchanges, details of voting results of general meetings. This needs to be done within 48 hours of conclusion of a general meeting.
Listed companies also have to prepare and submit an unaudited/audited financial results to the stock exchanges on a half yearly basis. Additionally, audited financial results are also to be submitted to stock exchanges on an annual basis.
Listed companies are required to disclose in their financial statements, the extent and nature of security created and maintained with respect to their secured listed non-convertible debentures.
An undertaking is to be submitted to stock exchanges on an annual basis stating that all disclosures required to be made to debenture trustees have been complied with.
Note: Disclosures mentioned from serial numbers 10 to 12 are only to be complied by listed entities that have listed their ‘Non-convertible Debt Securities’ and/or ‘Non-Convertible Redeemable Preference Shares’ on recognized stock exchanges.
Listed companies are to file their Indian Depository Receipt holding the pattern on a quarterly basis.
Listed companies are also required to file Financial Results (also to be published in the newspaper) and Annual Reports with stock exchanges as required to be submitted in their home countries.
Listed companies are required to publish the notices given to IDR holders as per requirements of the SEBI Regulations.
Note: Disclosures mentioned from serial numbers 13 to 15 are only to be complied by listed entities that have listed their Indian Depository Receipts.
Listed companies are required to submit to the stock exchanges statements of information including financial information pertaining to Schemes on a monthly basis or where the periodicity of the receivables is not monthly; reporting shall be made for the relevant periods.
Note: Disclosure no. 16 is only to be complied by Special Purpose Distinct Entities issuing securitised debt instruments and trustees of Special Purpose Distinct Entities.
Listed companies are required to intimate stock exchanges of information relating to daily Net Asset Value, monthly portfolio, half yearly portfolio of those schemes whose units are listed on those stock exchanges.
Note: Disclosure no. 17 is only to be complied by listed companies that have listed their mutual fund units. Along with the above disclosures, Listed Companies also have to comply with the provisions of the Companies Act 2013 and make certain disclosures thereunder.
The continuous disclosures to be made under the said act are briefly listed as follows2:
All the listed companies are required to file an Annual Return with the Registrar containing particulars enumerated in Section. 92 of the Act. Additionally, such a return filed by listed companies is to be certified by a practicing Company Secretary stating that the annual return discloses the facts correctly and adequately and that the company has complied with all the provisions of the Act.
Listed public companies are required to prepare a report on each annual general meeting conducted and file a copy of the report with the Registrar within 30 days of the conclusion of the annual general meeting. The report must also include confirmation to the effect that the meeting was convened, held and conducted with respect to the provisions of the Act and Rules made thereunder.
A Board’s Report shall be prepared and attached with Financial Statement and circulated or published. Companies Act 2013 and The Companies (Accounts) Rules, 2014 enumerate certain disclosures such as related party transactions, foreign exchange earnings and outgo, details of Corporate Social Responsibility policy etc. which need to be made in the Board’s Report.
Copy of Financial statements along with all additional attachments (such as the Board’s Report) are to be filed with the Registrar within 30 days of the annual general meeting. Such financial statements are required to be a true and fair view of the state of affairs of the companies and shall be in the form provided in Schedule III of the Companies Act.
All companies are required to inform the Registrar of appointment of auditors and since listed companies are required to change (1.) an individual auditor after maximum 1 term of 5 consecutive years (2.) an auditor’s firm after maximum 2 terms of 5 years, the disclosure regarding appointment of auditors is to be made on a continuous basis.
Companies eligible to fulfil Corporate Social Responsibility requirements in a given year are to disclose their Corporate Social Responsibility policy (which includes activities to be undertaken, implementation scheme etc.) on their website.
Further, in case of Government Companies, their Annual reports, Audit reports etc. are laid before both the Houses of Parliament/State Legislature as the case may be.
These disclosures and compliances help listed companies stay transparent and create a sense of trust among investors, lenders and the general public alike.
Endnotes
“Securities and Exchange Board of India (Listing Obligations and Disclosure Requirements) Regulations, 2015 [Last Amended on July 29, 2019].” SEBI, https://www.sebi.gov.in/legal/regulations/jul-2019/securities-and-exchange-board-of-india-listing-obligations-and-disclosure-requirements-regulations-2015-last-amended-on-july-29-2019-_37269.html.
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This article is the creation of Yamini Jain, a student of IIIrd year, BA LLB at ILS Law College, Pune, and provides a brief overview of the Industrial Employment (Standing Orders) Act, 1946 along with relevant case laws.
Introduction
The concept of ‘Standing Orders’ is one of the recent growth in relation to Indian labour- management. Prior to 1946, there existed chaotic conditions of employment, wherein the workmen were engaged on an individual basis with uncertain and vague terms of employment. The Act was enacted as a simple measure to remedy this situation – by bringing about uniformity in the terms of employment in industrial establishments so as to minimize industrial conflicts.
The Preamble of the Act imposes a compulsion upon the employers, “to define with sufficient precision the conditions of employment” and make the same known to the workmen.
Application of the Act
Section 1 of the Act provides that the Act shall apply to the industrial establishments (within India) with an engagement of more than a hundred workmen at present or as noted on any day in the preceding year unless provided by the appropriate Government for application to any such industrial establishment – with less than a hundred employees.
Exclusion of certain industrial establishments
Certain industrial establishments have been excluded from its application via various statutory provisions enlisted in this Act:
Section 1(4) excludes those establishments to which Chapter VII of the BIRA or MPIESOA applies unless controlled by the Central Government.
Section 13-B excludes those establishments whose workmen are subject to the Fundamental & Supplementary Rules; various Civil Services Rules; or any other rules provided by the ‘appropriate Government’.
The provisions of Sections 10 and 12-A(1) do not apply to the establishments under the control of the States of Gujarat/Maharashtra.
Power to exempt: Section 14
Section 14 empowers the appropriate Government to exempt any industrial establishment from being subject to all or any of the provisions of this Act, either conditionally/unconditionally.
Special features of the Act
The Act envisages three important features, they are:
Concept of Standing Orders;
Adjudicatory powers of the Certifying Officer; and
CSOs (short for – Certified Standing Orders) to have the force of law.
Whether a contract can override in the certified Standing Orders?
CSOs cannot be deemed as a statutory concept, but can also not be confined to the individualistic notions of a contract, as they transcend its limits. Hence, standing orders effectuated in compliance with the statutory provisions may be considered as a special kind of contract or a ‘statutory contract’.
Herein, to answer the question of whether a contract can override in the CSO, it can be concurred from the Western India case, that “the employer & workmen cannot enter into a contract overriding the statutory contract as embodied in the CSO, except when such a contract is entered into in compliance with Section 10(1), so as to modify such CSO, but not otherwise.”[1]
Standing orders
Section 2(g) of the Act states that “standing orders” are the rules relating to matters set out in the Schedule, i.e. with reference to:
The classification of workmen;
Manner of intimation to workers about work and wage-related details;
Attendance, and conditions of granting leaves, etc.;
Rights & liabilities of the employer/ workmen in certain circumstances;
Conditions of ‘termination of’/‘suspension from’ employment; and
Means of redressal for workmen, or any other matter.
Submission of Draft Standing Orders: Section 3
A statutory obligation is imposed by the Act upon the employer(s) to submit, individually/ jointly, five copies of a ‘Draft Standing Order’ within six months of its applicability to the industrial establishment, which should be inclusive of the matters enlisted in the Schedule and of the MSOs (short for – Model Standing Orders), if any, and to which shall be annexed such documents containing particulars of the workmen employed.
S.K. Sheshadri v H.A.L and others, (1983)
In this case, the Hon’ble Karnataka High Court held that, as long as the Standing Orders fall within the Schedule to the Act, irrespective of the fact that they contain additional provisions which are not accounted for in the MSOs, the Standing Orders would not be deemed to be invalid or ultra vires of the Act. The MSOs only serve as a model for framing the Standing Orders.
Hindustan Lever v Workmen, (1974)
In the present case, the issue relating to the ‘transfer of workmen’ was highlighted by concurring that, the Manager is vested with the discretion of transfer of workmen amongst different departments of the same company, so far as the terms of the contract of employment are not affected. Further, if the transfer is found to be valid, the onus of proving it to be invalid lies on the workmen in dispute.
Management of Continental Construction Ltd. v Workmen of Continental Construction, (2003)
In the instant case, the employer’s right to terminate the service of a probationer was recognised by declaring that, if a person is an employee on probation, it is an inherent power of the employer to terminate during/ at the end of the probationary period, provided, that even while acting in accordance with the CSO, the employer’s action be fair and consistent with the principles of natural justice.
Conditions for Certification of Standing Orders: Section 4
Section 4 of the Act declares the conditions upon the fulfilment of which, a standing order can be certified. It thereby requires a standing order to provide for all the matters set out in the Schedule of the Act and be in conformity with the provisions of this Act.
Deviation from Model Standing Orders
Section 4(b) when read with Section 3(2) of the Act, requires the draft standing order to, as far as practicable, be in conformity with the MSO, hence, in cases where it cannot be so claimed, the appropriate authority may permit deviation from the MSO, and negate the addition of such impracticable provision in the Standing Order.
Reasonableness of Standing Order
The proviso to Section 4 of the Act, as amended by Act 56 of 1956, necessitates the Certifying Officer or appellate authority to adjudicate upon the fairness or reasonableness of the contents of such Draft Standing Order in order to proceed with its certification.
Matters not covered by the Schedule
The Act contemplates by itself that the Standing Orders must cover matters included in the Schedule initially, and those which may be added to the Schedule by the appropriate Government in exercise of the authority conferred on it under Section 15. Any other provisions of such kind may be made if so certified by the Certifying Officer to be fair and reasonable under Section 4 of the Act.
Different set of Standing Orders
“Once the standing orders are certified, they constitute the conditions of the service binding upon the management and the employees serving already and in employment or who may be employed after certification.” This implies that different set of standing orders cannot exist in respect of distinct sections of workmen or the employer(s), for that would frustrate the intent of the legislature by rendering the conditions of employment as indefinite & diversified, just as existed prior to the enactment of the said Act.[2]
Certification Process: Section 5
The procedure for certification of Standing Order, as prescribed under Section 5 of the Act, is threefold:
The Certifying Officer to send a copy of the Draft Standing Order to the workmen or trade union, along with a notice calling for objections, that shall be submitted to him within 15 days of receiving such notice.
Upon receipt of such objections, the employer and workmen to be given an opportunity of being heard, after which the Certifying Officer shall decide and pass an order for modification of the Standing Order.
Finally, the Certifying Officer shall certify such Standing Order, and thereby, within seven days, send a copy of it annexed with his order for modification passed under Section 5(2).
Appeals: Section 6
Any related party aggrieved by the order of the Certifying Officer may appeal to the ‘appellate authority’ within 30 days, provided that its decision, of confirming such Standing Order or amending it, shall be final. The appellate authority shall thereafter send copies of the Standing Order, if amended, to the related parties within seven days.
Modification of Standing Order: Section 10
A CSO cannot be modified, except on agreement between the related parties, until six months from the last modification or operation of such standing order under Section 7. Further, subject to Section 10(1) and other provisions of this Act, the parties may apply to the Certifying Officer for modifications in the standing order by annexing five copies of the proposal or a certified copy of the agreement for modifications.
Payment of Subsistence Allowance: Section 10-A
Section 10-A of the Act stipulates for the payment of subsistence allowance by the employer to a workman who is suspended, pending the investigation/ inquiry of his misconduct, at the rate of 50% for the first 90 days, and 75% for the remaining period if the delay is not attributable to the workman. The Act also allows an appeal to the Labour Court constituted under IDA-1947 in case of a dispute relating to such subsistence allowance, whose decision shall be final. Moreover, it declares that the provisions applicable to a particular State, if more beneficial, shall prevail over this Section.
Temporary Application of Model Standing Orders: Section 12-A
Section 12-A provides that in spite of the provisions under Section 3 – 12, in the period between the applicability of this Act and operation of the CSO, MSOs to be adopted, with Sections 9, 13(2), and 13-A applying in the same way as would apply to a CSO. it also declares that if there exist two categories of workmen, and the daily rated have a CSO in existence for them, then the MSO be adopted for the monthly rated workmen.
The Act makes it a penal offence in case of a violation of Section 3 or 10 of the Act by the employer, by imposing a fine of Rs. 5000 and an additional Rs. 200 per day for a continuing offence. Further, in case of an infringement of the CSO, a fine of Rs. 100 and an additional of Rs. 25 per day for a continuing offence. The Section declares that no prosecution shall be instituted under it except on prior approval by the appropriate Government, and whence instituted, be tried only by such Courts not inferior to the Metropolitan/Judicial Magistrate of Second Class.
Interpretation of Standing Orders: Section 13-A
Any question relating to the application/interpretation of this Act may be referred to the Labour Courts constituted for this purpose, whose decision shall be final and binding on all parties.
Delegation of Powers: Section 14-A
The appropriate Government may delegate its powers under the Act to an Officer/Subordinate Authority to the Central or the State Government, as the case may be, and subject to such directions as may be provided under the notification.
Power to make rules: Section 15
The Act empowers the appropriate Government to make rules for the purpose of this Act, in consultation with representatives of related parties, relating to:
Additional matters to be included in the Schedule & the procedure for modification;
Set out MSOs;
Procedure to be followed by Certifying Officers & appellate authorities;
The fee to be charged for the copies of registered standing orders, and any other matter so prescribed.
Provided that the rules made by the Central Government be passed/annulled through each House of Parliament without prejudice to the validity of anything done under it.
Conclusion
The Act is a regulatory regime to formally define the employment relations between the workmen/trade union and the employer. A very prominent initiative of this Act is the concept of ‘standing orders’ which is amorphous in nature being a contract promulgated statutorily, that represent the will of the parties so regulated. Finally, it may be stated that, though it lays an exemplary notion, it requires thorough reforms in respect of the present scenario of employment practised by the principal employer so as to fulfil the Constitutional objective of securing socio-economic justice substantially.
References
The Industrial Employment (Standing Orders) Act, 1946, No. 20, Acts of Parliament, 1946 (India).
Schedule, Supra note 1.
Rohtak & Hissar District Electric Supply Co. Ltd. v. State of Uttar Pradesh, (1996) 2 LLJ 330, 334, 336 (SC).
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This article is written by Shivangi Tiwari, a second-year student pursuing B.A. LL.B. from Hidayatullah National Law University, Raipur. This is an exhaustive article dealing with jurisdiction under IPC.
Introduction
The word jurisdiction is derived from two Latin words, “Juris” and “dicere”. ‘Juris’ means law and ‘dicere’ mean to speak. Jurisdiction refers to the practical authority or the dominion which is conferred upon a legal body so that it can administer justice within that defined field of authority. The term legal body includes within its ambit a court, political or government office or a law enforcement agency. Jurisdiction with respect to a judicial authority is the limit or the extent of judicial authority it has over dealing with the cases, appeals and other legal proceedings. The reason behind the introduction of the concept of jurisdiction is to ensure that the courts adjudicate and try only those matters which fall within the territorial and pecuniary limits of the court. In a court system there are three types of jurisdiction, which are as follows:
The subject matter of the jurisdiction: It refers to the authority possessed by the court to try the cases related to the particular subject matter. For example, a family court only has jurisdiction to hear the cases related to family law.
Territorial jurisdiction: It ascertains the court’s authority to try the cases which arise within a certain geographical limit and which involves the people residing in a particular geographical limit.
In personam jurisdiction: It refers to the jurisdiction which a court has over a natural and legal body such as a company. It is the authority which a court has to determine the rights and liabilities of the parties.
The official criminal code of India is Indian Penal Code, 1860 and it deals with the substantive facet of criminal law. It was drafted in the year 1860 and came into effect in 1862. The Indian Penal Code deals with intra-territorial jurisdiction while Section 3 and 4 of the court deals with the extra-territorial jurisdiction of the Code.
Section 2 of the Indian Penal Code deals with the intra territorial jurisdiction of the Code. It makes the code universally applicable on all the persons on every act or omission contrary to the provisions of the Act. Section 3 and Section 4 confer extraterritorial jurisdiction to the Code. According to which a person can be held liable for any act committed beyond the territory of India.
Intra-territorial Jurisdiction
Section 2 of the Indian Penal Code states that every person who commits an act or omits to do an act which is contrary to the provisions of the code shall be liable for punishment. Here, every wrongdoer is made liable for punishment without any discrimination on the basis of his nationality, rank, caste or creed. The only requirement under this Section to incriminate a person is that he should commit the act or omission within the territory of India. Thus a foreigner who committed a wrong within the territory of the country cannot plead ignorance of Indian law. However, there are exceptions to the universal application of the code and so specific class of people are immune from criminal liability, the class of people include:
Foreign sovereign;
Diplomats;
Enemy aliens;
foreign army and warships;
President and governors.
Scope of Section 2: Personal Jurisdiction
Section 2 of the code states that the provisions of the code are applicable to ‘every person’ who commits an act or omits to do an act within the territory of India which is in contravention to the provisions of the Act. The people who are covered under the ambit of the Code are as follows:
Foreign nationals: Foreign nationals who enter into the territory of India and thus accepts the protection of the Indian laws impliedly consent to the imposition of India laws and are obliged to respect the same. Also, a person who is for the time being present in India and instigates the commission of an offence outside the territory of India is also liable under the Act. it is also settled by the Indian courts that a person who initiates an offence outside the territory of India and which takes place within the territory of India will be liable for punishment prescribed under the Act.
In the case of Mobarik Ali v. The State of Bombay, a person who was a Pakistani national induced a person residing in Bombay through telegram, telephone conversations, letters and to send him money. When the case came in front of the court, the Pakistani national pleaded that he can not be made liable for the offence of cheating since he was not physically present within the territory of India. The court rejected the contention and held that the basis of jurisdiction under Section 2 of the Act is not the corporeal presence of the offender but the locality where the offence is committed and since the offender committed the offence in Bombay it is immaterial that at the time of commission of offence he was not present within the territory of India. Similarly, In the case of State of Maharashtra v. Mayer Hans George, the court held the foreigner liable under Foreign Exchange Regulation Act, 1973 where he without making an express declaration about the gold which he was carrying during his journey through the aeroplane and as soon as the plane landed the Indian territory, he was held liable.
Corporations: Section 11of the Indian Penal Code defines the term “person” according to the Section “person” includes all the natural and legal person which include company, association or body of persons which has a legal existence. A company can be held liable under the law even if it is unincorporated. A company can not commit a crime by itself but it can do so through its agent. The company can be punished by imposition of fine while its employers can be held liable for criminal conspiracy. In the case of State of Maharashtra v. Syndicate Transport Company, the court held that in cases of criminal act or omission by the director, authorized agent or servants of a particular company the presence of mens rea is immaterial and the company can be held liable for the act or omission which is in contravention to the Code. In case of Superintendent and Remembrancer of Legal Affairs, West Bengal v. Corporation of Calcutta, the court held that even the state can be held liable for the wrongful acts or omission of its agent.
Exemption from Coverage of the Indian Penal Code, 1860
According to the provisions of Section 2 of the Indian Penal Code, every person who commits an act or omits to do an act which is contrary to the provisions of the code shall be liable to punishment. Every wrongdoer shall be subjected to punishment without any discrimination on the basis of his nationality, rank, caste or creed. However, there are certain exceptions to this universal application of the code in India and certain people are immune from criminal liability under the Code, the people who are exempted from the liability are as follows include:
Foreign sovereign: A foreign sovereign of any country possesses the ultimate or supreme authority of the country and is exempted from incrimination under the Code.
Ambassadors and Diplomats: Ambassador is an accredited permanent representative which one country sends to another country while a diplomat is a person who represents the country in another country. The ambassadors and Diplomats are exempted from liability under the Code, the reason for such exemption is that a foreign sovereign sends ambassadors and diplomats to as a representative of his country in good faith and so they are the representatives of the independent sovereign of that country, therefore, they should enjoy the same immunity which is provided to the sovereign of the country which he represents. The exemption given to them is on lines with the international laws like the United Nations Privileges and Immunities Act of 1947 which is a part of national laws.
Alien Enemy: When an alien enemy invades the country irrespective of the fact whether the country to which they belong to is at war or peace with our country, he will not be subjected to the criminal laws of the country but will be dealt with by the martial laws of the country. If any alien enemy commits any crime which is in no way connected with war then, he shall be subjected to the criminal laws.
Foreign army: When the foreign armies are on the soil of another country with the permission of their own country. They are exempted from criminal liabilities of the state on the soil of which they stand.
Warships: Warships which enter the water which comes under the territorial jurisdiction of another country, they are not subjected to the penal laws of that country.
President and governors: The provisions of Article 361 under Part 19of the Constitution constitutes an exception to Article 14 and Section 2 of Indian Penal Code. It states that:
That the governor and the president can not be made answerable to any court of law in the exercise of their duties during the term of office,
During the term of office of governor and president, the criminal proceeding can not be inducted against them,
During the term of office, the president and the governor can not be arrested or imprisoned,
If the president or the governor does any act in his personal liability, during the term of their office no civil proceedings can be instituted against them.
Section 5: An Exception to Section 2
Section 5 is a saving clause and provides for limiting the jurisdiction of the Indian Penal Code, 1860 by excluding the application of the Code over the matter for which specific laws are already present. It limits the applicability of the law on the specific class of people for whom different laws are already present in the country. Section 5 states that nothing contained in the Act shall be made applicable which interferes with any of the special and local laws and also any existing laws on the matters of
Punishment, mutiny or desertion of any officer, sailor, soldier or airmen who work for the Government of India.
Section 5 is an exception to Section 2, Section 2 makes the Code universal in the application within the territory of India on every person irrespective of his nationality, rank, caste or creed while Section 5 limits the operation of the Code.
Scope of Section 5
Section 5 is applicable to the officers, soldiers, sailors, airmen who render their services to the Government of India and have been made liable for desertion or mutiny against the Government of India.
Such above-mentioned people are to be punished in accordance with the Acts, provisions of any special or local laws and such wrongs demand to be tackled separately.
The Section limits the application of the Code on the Acts, provisions with respect to the prescription of punishment for desertion or mutiny against the Government of India by officers, soldiers, sailors, airmen who render their services to the Government of India. The main Acts in this connection are the Army Act, 1950, Air Force Act, 1950, Navy Act 1957, Air Force and Army Law (Amendment) Act, 1975.
Extra-territorial Jurisdiction
Section 3 and Section 4 of Indian Penal Code confers extraterritorial jurisdiction to the Code. Crime is said to be extraterritorial when it is tried in a country other than the one in which he committed it. According to Section 3 of the Act, any person who commits an act beyond the territorial limits of the country but the repercussions of such an act is such that it has been committed within the territory of India. Then such a person could be dealt with in accordance with the provisions of the Code for the act committed by him even though in the country in which he committed the act is not an offence under the ordinary laws of that country.
Section 4 of the Indian Penal Code expands the ambit of application of Section 3 of the Act. According to Section 4 of Indian Penal Code, when an offender has committed an offence outside the territory of India but is found within the territory of India. Then there are two courses of actions which may be resorted to:
Extradition: He can be sent to the country where the effect of his wrongdoing took place,
Extraterritorial jurisdiction: he may be tried in accordance with the criminal laws of India.
Scope of Sections 3 and 4, Indian Penal Code 1860
According to Section 4, the jurisdiction of the Code is applicable to any person beyond the territory of India who commits a crime. The Section also covers the following category of people:
Any Indian citizen who is present beyond the territory of India and has committed a wrong,
Any person travelling through any ship or aircraft which is registered in India,
Any person present in any place which is not under the territorial limit of India and targets the computer resources present in India.
About Liability of a Foreigner for Offences Committed in India
A foreigner committing an offence in India will be subjected to the provisions of Indian laws and shall be punished in accordance with the provisions of the Act even though he may not be physically present in India at the time of the commission of the offence. The court in the case of Nazar Mohammad v. State held that foreign citizen committing an offence in India will be held guilty under the Indian laws and ignorance of Indian laws is not an excuse although ignorance may be pleaded at the time of mitigation of the sentence. The prerequisite for the application of Section 3 and Section 4 is not the physical presence of the offender and the only requirement is that the wrong should take place in. The Section only means that the offence must take place in India although the offender is outside.
In the case of State of Maharashtra v. M.H. George, when the defendant pleaded ignorance in front of the court on the ground that he did not know about the recent changes which took place in the Indian legislation regulating the foreign exchange, the court rejected the plea and held him liable under the Act and held that the publication of changes made in the existing Indian laws cannot be expected to be made in every country and therefore ignorance of Indian law cannot be pleaded.
In the case of Sabu Mathew George v. Union Of India, the plaintiff was an activist and he filed a writ petition challenging the display of an advertisement in the Indian search Engines contending that it was violative of Section 22 of the Pre-Natala Diagnostic Techniques (Regulation and Prevention of Misuse Act), 1994 as the advertisement was related to pre-natal sex discrimination. The court took the issue in consideration and ordered the respondents Google, Microsoft and Yahoo to auto-block the advertisement.
The application of provisions under Section 3 and Section 4 is limited to offences committed within the circumscribed boundary of the territory of India. What constitutes the territory of India has been defined under Article 1(3) of the Indian Constitution. Which says that the territory of India comprises of:
Territories of the states,
Union territories which are specified in the first schedule, and
Other acquired territories.
Liability of a Foreigner Who Obtains Indian Citizenship After Committing an Offence as a Foreigner
In the case of Fatma Bibi Ahmed Patel VS. State of Gujarat, the appellant was a citizen of Mauritius and her son and daughter-in-law were residing in Kuwait. The Appellant frequently visited India on Visas and used to stay in her relative’s home. The son of appellant Hanif Ahmed Patel married the complainant. After some time the relation between the son and daughter in law of the appellant became strained and so the daughter in law filed a petition before the chief judicial magistrate, in Gujarat against the alleged physical and mental torture by her husband. The court held that the essential condition for the application of Section 4 is that the crime should be committed in India and so the law is not applicable on a foreigner who obtains the citizenship of India after the commission of the offence. Therefore, the petition filed by the daughter in law of the appellant was not maintainable.
Effect of Reading Sections 3 and 4, Indian Penal Code, 1860, with Section 188 of Criminal Procedure Code, 1973
According to Section 188 of the Criminal Procedure, 1973. When a wrong is committed outside the territory of India:
By any citizen of India, either on the high sea or elsewhere, or
By any non-citizen on ship or aircraft which is registered in India.
He may be made liable in accordance with the provisions of Indian laws as if the offence has been committed within the territory of India.
Thus, Section 3, Section 4 and Section 188 together form a class of law dealing with the trial of a person who has committed any act or omission outside the territory of India but that act or omission has resulted into a wrong in accordance with the provisions of the laws in force in India. Section 188 mandates the prior approval of the Government of India for the trial of every wrong committed outside the territory of India.
In the case of Samaruddin v. Asstt.Director of Enforcement, the court held that the courts in the country do not have the authority to try an offence committed outside the territory of India without the prior sanction of the central Government.
In the case of Om Hemrajani v. State of U.P., the accused had the full knowledge of his inability to pay back the loan amount which he took from a bank at UAE and absconded from the place thus, defrauding the bank. In an appeal against the accused by the bank under Section 415, 417, 418 and 420 read with Section 120-B of the IPC before the magistrate’s court at Ghaziabad. The court taking cognizance of the case, the court held the accused liable and issued a non-bailable warrant against him. The accused challenged the magistrate’s order before High Court and also alleged that the said court had no jurisdiction over the matter. the court held that the Section 188 of the CrPC makes it elastic for the victim at a foreign land who has been wronged by any person within the territory of India to file a complaint before any court in India whichever he finds easier to approach. Any foreigner who has been victimized by a person within the territory of India cannot be expected to first come to the territory and then ascertain where the offender is or can be found thereby determining the court which has competent jurisdiction. Therefore, the victim is at the liberty as per Section 188 of CrPC to approach any court which he finds convenient to approach.
Admiralty Jurisdiction
Admiralty Jurisdiction is the jurisdiction which confers the power to try offences which are committed on the high seas. Incorporation of Admiralty Jurisdiction into the Indian statutes was the result of various charters and British statutes, for example, Admiralty Offences Act, 1849, Colonial Courts of Admiralty Act 1890 conjointly read together with the Indian Colonial Courts of Admiralty Act 1891, and the Merchant Shipping Act, 1894. The notion that a ship which floats on the high seas is like a floating island is the basic principle behind the Admiralty Jurisdiction. The extension of Admiralty Jurisdiction is over the cases which involve the following offences:
Offences which are committed on the Indian ships on the high seas;
Offences which are committed on foreign ships within Indian territorial waters.
In Enrica Lexie Case, an Italian ship named Enrica Lexie while passing off the coast of Kerala fired at a fishing boat registered in India, thereof. The firing resulted in the on-spot death of 2 fishermen. Against the Italian mariners, an FIR was filed and the Italian ship marines were arrested. In response of which the Italian mariners filed a writ petition before the Kerala High Court challenging that the FIR is not maintainable since the incident took place at a place which was 20.5 nautical miles from the coast of India. The court quashed the writ and held that Section 2 of the IPC conferred the Kerala Police jurisdiction over such cases. Later, the Supreme Court held that subject to the provisions of Article 100 of The United Nations Convention on the Law of the Sea, 1982 the Union of India was entitled to prosecute the accused. Article 100 of The United Nations Convention on the Law of the Sea 1982 that such cases are outside the jurisdiction of provides that such cases are outside the jurisdiction of the State Governments and can be conducted only at the Federal/Central Government level. Therefore the court directed the Central Government to set up a Special Court to try such cases and the State of Kerala had no jurisdiction in the matter.
Proposals for reform
Section 2 of the IPC specifically states that act or omission contrary to the provisions of the Code shall be punished in no other ways but according to the provisions of the Code. the main reason for the incorporation of such provision was that during the time when IPC came into force there a lot of other laws which were in force in the country but factually after Indian Penal Code came to force most of the old laws have already been repealed and therefore this provision of IPC in today’s scenario is redundant and can be deleted from the statute.
Section 3 and Section 4 deals with the extraterritorial jurisdiction with the courts, according to these Sections a person can be held liable for any act or omission which is contrary to the provisions of the Act even if such an act or omission has been committed beyond the territory of India. Section 18 elucidates the meaning of India as territory of India except for the state of Jammu and Kashmir. The question which arises is that does the territorial water of India is included within the territory of India. The question is further concretized with the situation that what if the men in a foreign fishing boat hurt men in an Indian fishing boat when he boats are at 10 miles from the territory of India. Therefore it should be made clear by mentioning in Section 18 of the Act that the territorial waters are included within the meaning of territory of India.
Section 4(1) of the Code makes the provisions applicable to the offences committed by Indian citizens beyond the territory of India. It is desirable to extend the extraterritorial application of the Code to the aliens who render service to the state or central government;
With the technological expansion, the new concept of cyberspace has come up and so the Code must make provisions with respect to that as well to retain its comprehensive character.
Conclusion
Jurisdiction refers to the practical authority or the dominion which is conferred upon a legal body so that it can administer justice within that defined field of authority. The term legal body includes within its ambit a court, political or government office or a law enforcement agency. Jurisdiction with respect to a judicial authority is the limit or the extent of judicial authority it has over dealing with the cases, appeals and other legal proceedings. The reason behind the introduction of the concept of jurisdiction is to ensure that the courts adjudicate and try only those matters which fall within the territorial and pecuniary limits of the court. The legislature time and again makes various laws related to a jurisdiction which is useful for proper dispersal of justice. Thus, making the country a better place to live in by making the judicial institution more sorted and organized.
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