This article is written by Mayura Shetty, pursuing a Certificate Course in Media and Entertainment Law: Contracts, Licensing and Regulations from LawSikho.com. Here she discusses “Registration of Film Titles Under Trademark Law”.

Introduction

India is a nation obsessed with movies and, in fact, it is the largest producer of movies in the entire world. As a result, it is no wonder that film makers seek to protect every aspect of their films from infringement including the title. The title of a film is selected with great care to capture the essence of the movie and to arouse interest among moviegoers. The title is what primarily distinguishes one film from another and creates an identity for the movie. Hence, it is imperative for a film maker to protect his movie title and ensure that no other person uses a title similar to his. 

It is for this reason that producers or script writers seek to protect the title of their film under the intellectual property laws of the land. In India, copyright law does not afford protection to film titles as they are not considered “works” within the meaning of the Copyright Act, 1957. Copyright protection is given to original literary, dramatic, musical and artistic works, cinematographic films and sound recordings1. This means that the work as a whole is protected under copyright law but such protection is not given only to the title of a work. This is rational as a title cannot be considered as a literary work by any stretch of imagination. As a result, film makers have to resort to protection under trademark law. A trademark has been defined in the Trademark Act, 1999 (hereinafter referred to as “the Act”) as “a mark which is capable of distinguishing the goods and services of one person from those of others2”. A film title can be registered as a service mark under the provisions of the Act after it has met certain pre-conditions that have been further elaborated hereinbelow.  

Process of Registration of a Film Title as a Trademark

Under the Act, a movie title can be registered as a service mark under Class 41 of the Fourth Schedule of the Trademark Rules, 1991. This class includes a number of services one of which is “entertainment”. Hence, film makers usually apply for registration of the film titles under this category. They can also apply for registration under Class 9. This class provides for “apparatus for recording, transmission or reproduction of sound or images” and film titles can be protected under this class as movies can be viewed on devices such as DVDs. 

Registering Movie Titles with Film Industry Associations

Apart from registering the title as a trademark under the Act, film makers also choose to register their movie titles with certain industry associations. Indian Motion Picture Producers’ Associations (IMPPA), Association of Motion Pictures and Television Program Producers (AMPTPP) and Film and Television Producers’ Guild of India, Film Writers’ Association and Western India Film Producers Association (WIFPA) are examples of associations wherein producers and writers can enrol as members and thereafter register their movie titles and scripts with such associations. The association authenticates the title before registering it to ensure that it is not similar to any formerly registered title. However, registering a title with such associations doesn’t amount to ownership of the title. These associations are not recognized by law. Hence in order to obtain ownership of a title, it is recommended to register it as a trademark. 

• Under trademark law, the title of a film is protected in two scenarios:

1. Series of titles: When there are a series of film titles such as the Singham franchise, the Dhoom franshise or the Golmaal franchise, trademark protection can be obtained much more easily. A series of titles indicates that each movie comes from the same production house and therefore can be registered as a trademark without any difficulty. Such titles have already gained popularity among the public and proving ownership of such trademark is not difficult.  
2. Single film title: There are certain conditions that a single film title has to meet in order to acquire protection as a trademark. The most important requirement is that the title must obtain a secondary meaning in the minds of the public. This means that the movie watching audience must associate the movie title with a particular source or production house. Such secondary meaning is achieved by the promotional activities that are undertaken prior to the release of the film as the public gets exposed to the movie during the promotional events itself. Once such secondary meaning has been achieved, the title acquires the status of a well-known mark and hence can be registered as a trademark as per the provisions of the Act3. Whether a title has acquired a secondary meaning is usually inferred from the length of time for which it has been used, the promotional activities surrounding the movie and the amount of money spent on such promotions. 

• This test of secondary meaning was laid down by the Delhi High Court in Kanungo Media Ltd. Vs RGV Film Factory and Ors4. In this case, the plaintiff has produced a documentary in Bengali titled “Nisshabd”. This film was not released commercially as the plaintiffs did not have adequate resources but had won awards at certain film festivals. The plaintiffs sought to prevent the defendant from using a similar title for a Hindi movie by claiming that they held a copyright over the title. The Delhi High Court held that film titles can be protected under trademark law but not under copyright law. This is the position under US laws as well. The court also stated for trademark protection, the title should have acquired a secondary meaning. It was held by the court that the plaintiff’s movie had not acquired a secondary meaning in the eyes of the public. Hence the defendant could not be prevented from using the title as they had already spent a huge amount of money to promote the movie and the public was acquainted with the movie. 

In Biswaroop Roy Choudhary vs. Karan Johar5, the plaintiffs had registered the title “Kabhi Alvida Naa Kehna” under Class 41 of the Act. The defendants had registered the title with Association of Motion Pictures and Television Program Producers (AMPTPP), a film association. The court held that the defendant was the actual user of the mark, he had produced a movie using such title and had spent a huge sum of money for advertising and promoting the film. This decision has been widely criticised as the plaintiffs had registered the title as a trademark and still lost the case only because Karan Johar’s movie was widely publicised.

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• This leads us to the conclusion that the court always places precedence on the popularity achieved by a movie and not on first use of the title. The court also takes into account commercial usage of the title. A party that has not used the mark commercially is more likely to lose out on protection to a party that has actually made such commercial use. Registration of a title as a trademark or with any film association as mentioned above is not adequate to protect one’s rights in a title. A party has to show that he has actually used the trademark in a commercial manner and that the public recognises it. 

• The test of secondary meaning can sometimes tend to be unfair as a party who does not have the financial resources to promote his movie may lose out on trademark protection to a party who has the means to promote his movie and create a secondary meaning of the same. While it is understandable that the court would want to protect a trademark that the public easily identifies with, some consideration must also be given to small movies and small producers who simply do not have the resources to undertake large scale promotions of their movies. Otherwise, it results in only large and rich production houses enjoying trademark protection for their movie titles. A balance has to be achieved as there are certain movies made only for digital platforms that may not achieve the fame of a big-budget movie that has a theatrical release. 

Conclusion

As has been stated in the beginning, the title of a movie holds a lot of significance. Hence it is imperative that two similar sounding titles are not used by film makers as this may cause some confusion among the public and in some cases may also lead to losses for a particular film maker. The available decisions of courts that deal with trademark protection of movie titles have tended to favour the movie that is more well-known among the movie watching public. This is because secondary meaning is a basic tenet of trademark law. While this may tend to undermine movies made by small producers, it also can help in situations where a person may register a title as a trademark only to prevent others from using it. In such a case, protection will be awarded to the person who shows he has used the mark extensively and that this has been recognised by the public as well. 

Endnotes

1. The Copyright Act 1957, s. 13 
2. The Trademark Act, s. 2 (zb)
3. The Trademark Act, s. 9(1) 
4. 2007 (34) PTC 591 (Del) 
5. 2006 (33) PTC 381 (Del) 

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

The post Registration of Film Titles Under Trademark Law appeared first on iPleaders.

This article is written by M Arjun, pursuing a Diploma in Cyber Law, Fintech Regulations and Technology Contracts from Lawsikho.com. Here he discusses “Recent Changes In 2019 FDI Policy for E-commerce Stores”.

Introduction

 The word e-commerce is no longer a buzzword for Indians. The e-commerce industry had seen proliferating growth in the past few years. With 451 million monthly active Internet users at end of financial year 2019, India is now second only to China in terms of internet users, according to a report by Internet and Mobile Association of India. Thanks to cheaper data tariffs and availability of a plethora of affordable smartphones in the Indian market. India is the fastest-growing market for the e-commerce industry. Reports suggest that revenue from this sector is expected to rise from US$ 50 billion in 2019 to a whopping US$ 200 billion in 2026. Almost 6 million new entrants are added to this sector every month. In light of all these reasons and expectations, the e-commerce industry in India has gained a lot of attraction from foreign countries in the form of investments, mergers and acquisitions. E-commerce and consumer internet companies received around US$ 7 billion in private equity and venture capital in 2018. 

Foreign direct investment in the e-commerce sector has been a controversial topic ever since the inception of this concept. E-commerce in India is broadly classified into two prominent categories- (i) A marketplace model of e-commerce, (ii) An inventory model of e-commerce. The former model is also termed as the B2B model where the e-commerce entity offers a technology platform and acts as a facilitator between the sellers and the customers. Whereas the inventory model is called as the B2C model in which the e-commerce entity controls the inventory and sells it to the consumers directly. E-commerce behemoths such as Amazon and Flipkart are classic examples of market place entities. An online store for “Jockey products” owned and managed by Jockey is an example of an inventory-based model. The FDI policy for both these model differs accordingly.

FDI In E-COmmerce Activities

FDI policy in e-commerce was first promulgated through Press note 2 of 2000. E-commerce was never a trending topic back then. The immense growth of this sector after 2015, forced the Department of Promotion of Industry and Internal Trade (“DPIIT”), erstwhile called the Department of Industrial Promotion and Policy (“DIPP”) to come up with a robust framework to govern FDI in this booming industry. As a result, the DIPP published the FDI policy through Press note 3 of 2016. The provisions of the press note allowed 100% automatic route FDI (without any approval) for e-commerce entities operating as per the market place model.  However, the policy strongly disallowed FDI in inventory-based models. On the other hand, market-place e-commerce entities circumvented these policies and exploited the lack of clarity in the provisions.  Despite the implementation of the 2016 policy, deep discounting and violations of the provisions of the FDI policy continued to be the aftermath. Numerous allegations and complaints were raised by various retailers associations such as the Retailers Association of India (“RAI”) and Confederation of All India Traders (“CAIT”). 

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These situations along with the change in market dynamics forced the DIPP to come up with more stringent provisions for regulating FDI in the sector. By that time, India witnessed its largest merger deal and the world’s biggest e-commerce deal ever. The U.S giant “Walmart’ entered the Indian e-commerce scenario by acquiring over 77 per cent ownership in the e-commerce giant Flipkart. Later the DIPP released the subsisting FDI policy through the Press note 2 (2018 series) on December 26th of 2018. This publication caught international attention and contributed towards the agitation of dominant players such as Amazon and Flipkart. The 2018 FDI policy came into force from February 1, 2019. 

Analysis of the Existing Policy

• The 2018 FDI policy was a reiteration of previous provisions to suggest measures for the better implementation of the 2016 regulations. The 2016 policy mandated that not more than 25% of the total sales of the market-place entity should come from a single seller. The e-commerce giants like Amazon, Flipkart and Myntra confronted with the policy by creating more affiliated sellers. Hence, the provision added for limiting the powers of affiliated sellers went in vain. This requirement was omitted from the 2018 guidelines. The preceding policy suggested that market place entities should not exercise ownership over the inventory of the goods purported to be sold.  A significant change found was that the DIPP added the term “control over the inventory” which has not been duly defined. However, the policy considers the e-commerce market-place to have control over the inventory if more than 25% of a seller’s inventory is purchased from the Marketplace Entity or its group companies. If this condition is breached, then the e-commerce entity will be deemed as an inventory model thereby detaching it from the purview of FDI. The addition of the term “control” has been done to ensure stringent compliance with the provision of ownership over the inventory. Besides, the policy bars e-commerce entities from directly or indirectly influencing the price of products. Earlier an e-commerce entity would buy goods at discounted prices and sell it to its affiliated sellers. These sellers would sell it back on the platform to the customers.
• Press Note 2 of 2018 states that “an entity having equity participation by an e-commerce marketplace entity or its group companies will not be permitted to sell its products on the platform run by such marketplace entity”. The objective of this policy is to limit the equity stakes of e-commerce entities on third-party sellers. The 2016 policy did not prohibit equity participation. But the DIPP has not clarified whether both direct and indirect equity participation counts. Similarly,  no threshold of equity participation has been defined in the policy. sold in its platform.
• The policy has also laid down conditions for ensuring a level playing field between the sellers of the market-place. The affiliated sellers are always equipped with better infrastructure, logistic support, and deep discounts for attracting customers. As per the new policy, an e-commerce entity has to offer services like warehousing, marketing, financing and payments to all of its sellers in an impartial basis at similar circumstances. There should not be any discrimination based on support, cashback and discounts. E-commerce companies were already known for preferring sellers who offer better discounts. It is often seen that the platform backed sellers receive enormous funding and provide better services to the consumers. But, the policy can be detrimental to the vendor ecosystem. A seller may by itself introduce faster delivery and offer deep discounts to capture the consumers. The sellers in a platform sell different goods. The word “similar circumstances” bring in a lot of ambiguity as the nature and mode of operation of each seller may be distinct. 
• Press Note 2 of 2018 requires that an “e-commerce marketplace entity will not mandate any seller to sell any product exclusively on its platform only”. For instance, Oneplus smartphones are exclusively sold via Amazon India and not any other e-commerce marketplaces. The policy aims at curbing this exclusivity to bring in fair competition and ensure better consumer protection. Apart from exclusive contractual clauses forced by e-commerce entities, there can be several informal arrangements. Moreover, most brands are comfortable in selling through a single platform. Various online brands ever since its establishment have been selling their products successfully through these platforms. In fact, brands feel obliged to sell their products exclusively on a single platform or a seller after considering the services provided to them. Amidst this regulation, brands/sellers may not be willing to take a bet on their business practice. Oneplus has already announced that it does not have any contractual arrangements for ensuring exclusivity to Amazon, instead, the decision was deemed to be a strategic choice. Hence, the need and complexity of the implementation of this provision remains a  question. The policy also comes with certain compliance for e-commerce companies. The press note requires the companies to furnish a certificate along with a statutory audit to the Reserve Bank of India by 30th September of every year for the preceding financial year. 

Aftermath of the Policy

• The policy came into effect on the 1st of February 2019. The policy was blamed to be formulated without consultation with the stakeholders. The U.S based e-commerce giant Walmart called the policy ‘regressive’ as it creates an unfair playing field between foreign and domestic entities. The Ministry of Commerce and Industry had many meetings with the e-commerce stores to discuss the new policy. Some speculated that the policy was to guarantee the support of the offline retailers and their associations for the general elections held earlier this year. It was also considered as an invitation for Indian giants like Reliance to enter this space. 
• Soon after the implementation of the policy, the sales revenue of Amazon, Flipkart and other e-commerce giants took a considerable hit.
• Ever since the announcement of the policy, the biggies of the sector were busy ensuring compliance with the new policy. Many of the sellers in these platforms had to change in their business structure. Soon after the deadline, the biggest e-tailers of Amazon, Appario Retail and Cloudtail India had to stop their activities for a week. These sellers were the backbone of the platform, where Amazon held a significant amount of stakes. But soon after these entities made a comeback in their new avatar. N.R Narayana Murthy’s “Catamaran Ventures” increased their stake in Cloudtail India to 76% from 51% earlier, reducing Amazon Asia’s stake to 24% from 49%. Cloudtail has independent plans as well. Similarly, Appario, the other large seller on Amazon, made a comeback through the same restructuring route. Appario is a subsidiary of Frontizo, which is a joint venture company in which the Patni Group holds a 51% stake and Amazon Asia Pacific Holdings holds 48%. Post the restructuring Amazon has reduced its equity participation to below 25%. Since the equity participation is below 25%, these companies no longer remain the group companies of Amazon and will not have any directors on their boards. Flipkart was less affected as their affiliated seller “W.S Retail” stopped its business a year ago. Flipkart from then has started to diversify their list of sellers. 
• There was a misconception regarding the prohibition of the sale of private labels through the e-commerce marketplace. Private label refers to the brands developed in house by the e-commerce entity. However, the Government has clarified that it does not place any restriction on the nature of the products sold through the platform. Private label brands drive in more revenue for e-commerce companies. The need for a statutory audit and submission of a certificate to the RBI before 30th September of every year is still unanswered. Honourable Minister for Commerce and Industry has directed RBI to make requirements to ensure compliance with the requirement. However, no notification has been served by the RBI with regards to the matter till date.

Conclusion

The main objectives of the 2018 Press Note were to ensure a level playing field between the FDI powered e-commerce companies and other online as well as offline retailers. The Retailers body such as the Confederation of All India Traders (“CAIT”) considered the policy to be a welcome move from the government. To much of the contrast of their expectations, it can be rightly said that not much has changed during the past 8 months. CAIT has made several protests and flooded the government departments with complaints regarding deep discounts, festival sales and predatory pricing. DIPP had organised multiple meetings with the e-commerce entities and had ordered investigation on deep discounts and festive sales conducted by these companies. Amazon and Flipkart were already sent questionnaires to study their seller lists and mode of operation. Issues such as predatory pricing are already before the Competition Commission of India. 

Amidst all these efforts coming from various corners, e-commerce in India is thriving towards new heights. Amazon and Flipkart despite making losses each year are continuing their practice of offering eye-catchy discounts and cashback. It is clear that these entities are playing a real long term game considering the massive potential of e-commerce in India. Festival sales and other sales have increased in number. Discounts on Fast Moving Consumer Goods (FMCG) products are scaling into new heights. Hence the effectiveness of the 2018 policy remains a complicated question. The contribution of banks, credit card companies and payment aggregators in offering discounts cannot be ruled out. The policy nowhere addresses the role of other entities in offering discounts. A draft e-commerce policy has been released by the DIPP in February 2019. Provisions for better regulations are expected in the final draft which is expected to be released in 2020. The 2018 FDI policy has many grey areas and requires clarifications and additions in many provisions, for achieving its objective. The industry giants with certain restructuring have easily circumvented various provisions of the policy. The e-commerce industry is one of the most promising sectors and prudent regulations are incidental to sustain its growth. Considerations should be given to offline retailers as well. So it is important that the government needs to come up with better policies that serve the interest of all the stakeholders in the retail sector. Apart from the formulation, measures must be taken to avoid exploitation of the loopholes and for the better implementation of such policies.      

Reference

1. https://www.trilegal.com/index.php/publications/analysis/review-of-fdi-policy-in-e-commerce
2. https://www.ikigailaw.com/development-of-the-fdi-policy-for-the-e-commerce-sector/
3. http://www.mondaq.com/india/x/798970/Inward+Foreign+Investment/Changing+Landscape+Of+The+ECommerce+Sector+visvis+The+FDI+Policy
4. https://economictimes.indiatimes.com/industry/services/retail/cloudtail-appario-push-brands-for-higher-margins/articleshow/70338317.cms?from=mdr
5. https://www.entrepreneur.com/article/342915

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

The post Recent Changes In 2019 FDI Policy for E-commerce Stores appeared first on iPleaders.

This article is written by M.Arjun, a 5th-year student studying in Government Law College, Thrissur. This article deals with the essential clauses in a Venue-Hire Agreement.

Introduction

A venue-hire agreement governs the general terms and conditions for booking an event at a particular venue. It is vital for the owner of a venue and the hirer to be clear about their rights and responsibilities in relation to the venue and the event concerned. A venue-hiring agreement ensures that there is no misunderstanding between the parties and no details are left unaddressed. Any ambiguities or complications can be detrimental to the interest of both parties. 

Nature of events varies greatly in their duration, purpose, and target audience. There can be private events such as marriages, birthday functions and public events such as musical concerts and award nights. No single agreement works perfectly for every kind of events. A venue-hire agreement should be catered in accordance with the nature of events. Hence it is important to understand the nature of the event before drafting a venue-hire agreement.  Despite the lack of general format, there are few standard clauses that a venue-hire agreement should incorporate. Let’s discuss some of these in detail.

Definition Clause 

The definition clause helps to set out a clear understanding of various terminologies used in connection with the contract so as to avoid any ambiguity or indirect interpretations. Therefore terms like venue, event, vendors, guests, contracting parties and so on are defined within the clause to make the agreement more transparent.

Price And Payment

A clause governing the payments to be made for booking a venue is one of the most important clauses in a venue-hire agreement. The agreement should be clear on the total payment to be made by the hirer. It should also mention the advance amount which the hirer is required to pay while booking the event. A security deposit is usually charged for covering the damages caused to the property when a venue is hired. Also, the provisions relating to the refundability of various payments made by the hirer should be clearly mentioned. The time period for which the hirer should make the payments, as well as the mode of payment, should be specified. At the same time, a provision regarding the interest laid for late payments or cancellation of the venue-hire agreement should be present to make it more beneficial for the owner of the venue, in cases where the hirer fails to pay the requisite amount on time. The time period is required to be present in the agreement, within which the owner has mandated the security deposit after the completion of the event.

The Hirer’s Use of Event Space

The agreement should always mention the purpose of the event. Stating such purpose avoids any room for misrepresentation of the event by the hirer. The venue-hire agreement should contain provisions that specify how the hirer can use the venue as per the directions of the owner or officers in charge. This clause can also be used to prohibit the hirer from using the event space, contrary to the directions of the owner. Some of the restrictions may include restrictions such as an entry into a particular space, the permissible level of sound from audio devices and loudspeakers, decor restrictions, usage of hazardous equipment and so on. 

Entry To The Event Space

The venue-hire agreement precisely refers to the time period for which the venue is available to the hirer. The duration, start time and end time for access to the event space should be provided to avoid ambiguities. The hirer may need time for making various preparations such as decoration, in relation to the event. So it is important that this clause provides the exact time from which the hirer can use the space. There may be instances in which the owner can enforce the hirer to specify the type of the audience attending the event and limitations imposed upon them. In such cases, it might be important to include the audience who can access the event. All areas and rooms within the venue for which the client has been granted access including the granted access time should be pointed out in the agreement. Vendors/Service providers of the hirer who are given access to the event space should be mentioned. The maximum number of audience permitted to access the event should also be included in the agreement. The hirer can also set out a provision for limiting the access for particular staff/employees of the owner. 

Deliverables

Deliverables include services like accommodation, electricity, furniture, generators and all other equipment and amenities. The agreement should have clear provisions as to mention the services provided by the owner for the price. All the inclusions and exclusions should be set out in detail. The owner of the venue may mandate the client to avail some of the services exclusively from him or from any accredited vendors. For instance, some owners do not allow third-party catering providers to provide food for the function at the venue. In such cases, the agreement should expressly provide all the services provided exclusively by the owner or other exclusive vendors designated by the owner. The time for delivery of the deliverables should also be mentioned clearly. It is always better to quantify or describe each of the services provided in detail such as the food menu, maximum units of electricity authorized to use or maximum hours of operation of the generator in an appendix to the end of the agreement.

Insurance

The Insurance clause sets out the types and limits of insurance policies the hirer must obtain in order to cover for the damages caused in relation to the event. The insurance policies cover in respect of losses incurred to the venue, employees or visitors from bodily injury or property damage. Venue owners may not provide their space if the hirer does not avail proper public liability insurance in his name for indemnifying the venue owner. An insurance policy also protects the hirer from losses arising due to the cancellation of an event or from the absence of a performer or a guest to the function. Hence the losses suffered by the venue owner and the hirer are covered under the policy. The insurance policy also helps the parties to avoid unnecessary litigation.

Cancellation and Postponement of the Event

The cancellation clause lays down the conditions by which the hirer can cancel his booking. The method, conditions for cancellation and the notice period for such cancellation should be agreed by the parties to the agreement. Cancellation fee which is to be realised from the hirer should be expressly provided to avoid complications. Cancellation fee depends on the size of the event. Queries such as whether the cancellation fee applies if the venue is rebooked after cancellation, should be dealt with in the agreement. The owner of the venue can also lay down certain conditions by which he reserves the right for cancelling the event at times when the hirer has not complied with such conditions. Provisions regarding postponement, change in times of the event and amendments made to the event such as extending the time period of booking should be dealt with in the clause. Additional payments incurred during these circumstances should be addressed accordingly. A notice period within which the hirer should request a cancellation or postponement of the event should be agreed upon by the parties.

Responsibilities of the Hirer

The venue owner expects his client to fulfil various responsibilities throughout the event. This clause includes detailed provisions regarding safety, health, security and other code of conduct in connection with the owner’s premises, equipment and his employees. All the attendees and third-party vendors of the hirer are also expected to act in accordance with the obligations agreed by the hirer. Besides, the responsibility for complying with statutory obligations for conducting the event shall be passed on to the hirer in the agreement. 

Indemnity and Limitation of Liability

The indemnity clause indemnifies the owner from all the damages caused to any personnel or property managed by the owner. The hirer shall be liable for all the physical damages, legal expenses and loss of reputation caused to the owner in relation to the use of the venue by the hirer. On the other hand, the owner should indemnify the hirer for all his losses caused to him due to non-delivery of deliverables or negligence from the part of the owner. The limitation of liability clause limits the liability of the owner during instances such as theft, death, injury, physical damage caused to the property or guests of the hirer except in cases of negligence by the owner. The owner can also provide a provision for limiting his liability when the cancellation arises due to a breach of duty on the part of the hirer.  

Miscellaneous Provisions 

As mentioned earlier, it is very difficult to draft a venue-hire agreement which is adequate for various kinds of events. The clauses for a business conference very much differ from a musical concert. Hence there are various clauses which should be added to the agreement consonantly with the nature of the event. Considering the nature of the event, there can be separate clauses for: 

• Cleaning/rubbish removal
• Decorations
• Parking
• Catering
• Smoking and usage of alcohol
• Broadcasting the event
• Advertising/publicizing the event

Governing Law And Dispute Resolution

The venue-hire agreement should provide a clause regarding the governing law and jurisdiction according to which the provisions of the agreement are construed or interpreted. The procedure for dispute resolution should be laid out in the agreement. For instance, if the parties agree to arbitration for settling disputes, it should mention whether the arbitration shall be before a sole arbitrator or else wise. The parties should also agree upon a governing law and appropriate jurisdiction for dispute resolution.

Common Pitfalls In Drafting a Venue Hiring Agreement

A venue-hire agreement should serve the needs of both the hirer as well as the owner of the venue. These agreements are catered considering the changing nature of the events. The wording, clauses length of these agreements differ greatly. 

When Venue-Hire agreements are small they may not serve the purpose

For instance, a very short venue-hire agreement looks like this. Here the agreement focuses too much on matters related to payment whereas it is silent on various provisions such as cancellation policy, deliverables included in the price, provisions relating to outside vendors/suppliers and so on. Not furnishing adequate details leads to uncertainty between the clients.

Where there is a substantial influence on the interests of the owner

On the other hand, here is a much detailed venue-hire agreement. The agreement stresses more on the rights of the owner and the obligations of the hirer. It misses out key clauses such as provisions for complaint and dispute resolution mechanism. The hirer is made to indemnify the owner and his property under every possible scenario thereby omitting the responsibilities of the owner. 

When the hirer’s rights are not expressed in detail

A venue-hire agreement is mostly drafted in favour of the owner. Hirer’s right such as timely delivery of deliverables, repayment of the security deposit by the owner, duties of the owner are not usually addressed in the agreement.

Conclusion

Therefore, the venue-hire agreement should be drafted in such a way that it provides sufficient details regarding the scope of the event, payments, liability of the parties  and so on. It should lay down the rights and obligations of both parties without any discrimination. A musical concert involves a large amount of advertising, publicity and brand sponsorships. Drafting a venue-hiring agreement for a musical concert in a similar fashion as to a private function such as a retirement party can be an absurd idea. Hence, the nature of the event should be considered thoughtfully before drafting the agreement. Not entering into a venue-hiring agreement can be a bad idea, especially when the event and the cost involved in hiring the event space, is substantially of high value. There can be several disputes arising at such instances such as disputes related to non-payment of the amount, cancellation related disputes, disputes concerning delivery of deliverables, liabilities of the parties and improper use of event space. As a consequence, is always a good idea to enter into a venue-hire agreement before booking a venue for any sort of event, be it big or small or private or public.

References

1. https://www.printablecontracts.com/Venue_Hire_Agreement.php
2. https://www.jcu.edu.au/__data/assets/pdf_file/0015/120417/Hire-Agreement-Form.pdf
3. http://crownpavilion.com/wp-content/uploads/2017/08/Event-Venue-Hire-Agreement.pdf
4. https://www.newcastle.edu.au/__data/assets/pdf_file/0010/473563/Venue-Hire-Agreement-2018-Terms-and-Conditions.pdf

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

The post Essentials Of A Venue-Hire Agreement appeared first on iPleaders.

This article is written by M.Arjun, a 5th-year student studying in Government Law College, Thrissur. The article deals with what YouTubers should know about YouTube’s Copyright Policy.

Introduction

With more than 31 million active channels and technically being the world’s second-largest search engine, YouTube has become a lucrative career for content creators. Back in its initial days, Youtube as a video-based platform was not monetized. The acquisition of YouTube by Google and Google’s acquisition of ad management solution DoubleClick, enabled YouTube to run advertisements, thereby generating revenue for the company as well as the community. The monetization fueled the growth of youtube empowering it to be one of the present-day giants of the ever-growing digital media industry.

The biggest strength of YouTube is that it is open and accessible for the masses. Around 500 hours of video are being uploaded to the platform every minute. YouTube has become the go-to option for video consumption on the internet for over 2.5 billion monthly users throughout the globe. YouTube’s monetary rewards have attracted a large number of audience towards the platform. Various malpractices for triggering income from YouTube such as copyright infringements, duplication and reuse of original content became frequent. These practices drastically impact the monetary benefits of the original content creators. Hence, YouTube treats copyright as an important issue and has developed a detailed copyright policy to tackle the issues relating to it.

YouTube’s Copyright Policy

Youtube takes copyright infringement seriously and a video alleged to be infringing the copyright of the original owner is normally blocked or taken down. If a person uploads a video created by someone else, then he is said to have committed a copyright infringement if he has uploaded the video without valid permission or license for the same. YouTube does not permit any user to use the content of the right owner even if they do not have any monetary interest in copying the content. Even copying a very minute portion of a youtube video is considered as an infringement.

A video uploaded to youtube is taken down or blocked for 2 reasons:

• When there is a takedown notice against the video; and
• When there is a content-id mismatch.

Takedown Notice

When a copyright owner feels that an infringer has uploaded his content on YouTube, he can file a takedown notice through the platform. A takedown notice is a formal notice governed by the principles of law. YouTube reviews the notice and takes down the content if it is satisfied that the infringer has breached the rights of the owner. A person filing the takedown notice has to be sure about his rights as he is initiating legal action against the opposite party.

Content Id Mismatch

While filing takedown notice is a legal action, Youtube has developed a unique copyright enforcement tool called a “Content Id”. YouTube grants a content-id for videos exclusively to the copyright owners. Whenever a video is uploaded to youtube, youtube algorithm scans whether the audio or video uploaded matches with millions of those uploaded to the platform. When it finds a match, youtube by itself files a copyright claim for the owner, liberating the owner to take action by himself. When there is a content-id mismatch the owner of the video has 3 options:

1. To block the video.
2. To monetize the video- The owner gets more ad traffic for his infringed video which generates more revenue for the owner. The copied content does not receive any monetary gain but the video remains on the platform.
3. The owner gets viewer data to get the detailed information regarding the video such as the country or area within which the video has received good popularity.

Content id allows the users on the platform to create modification works and funny videos from the original content without hurting the interest of the right owners. The main aim of the content id is to minimize takedown notices. However, the owner is always at the option to block the video or to select a more rewarding option without blocking the usage of the video by the other party. In 2018 a news report, YouTube’s chief business officer Robert Kyncl said that in more than 90% of Content ID cases, copyright holders opt to collect revenue. Youtube has paid out billions of dollars to the content owners when there is a content-id mismatch. This is to ensure that more users and videos remain with the platform. The news report also claims that 98% of the copyright issues in youtube is addressed through the content id mechanism.

In July 2018, YouTube introduced a tool called “Copyright Match” tool which is a shortened version of the Content ID system. The tool is available to the channels with more than 100,000 subscribers. It helps these channels by preventing the infringers from downloading their videos and re-uploading it to a different channel for monetary gains.

Laws Governing the Policy

YouTube’s takedown policy is based on the provisions incorporated under the Digital Millennium Copyright Act 1998. It forms the basis of youtube’s copyright strike mechanism. YouTube has to comply with DMCA to avail its “Safe Harbor Protection”. Safe Harbor Protection protects online service providers such as YouTube from copyright liability for innocent hosting infringed content in its own platform. Hence, youtube is bound to act as per the DMCA for any copyright claims through a takedown and notice process. When youtube receives a DMCA takedown notice it takes the alleged video immediately.

Why Should YouTubers Understand The Policy?

Most of the content creators in youtube are motivated to create content for the reason that it generates decent revenue for the YouTubers. For this purpose, a channel has to enable monetization and the video uploaded should be as per the “Advertiser Friendly Guidelines” prescribed by youtube.

The primary source of income through youtube comes through running advertisements in the video. A channel becomes more exposed to advertisements when the popularity of content increases. So, when a content created by a party is reused or re-uploaded by another party, the content gets duplicated and the owner of the video loses revenue. Hence a YouTuber should always be well versed with YouTube’s copyright policy along with the procedures governing copyright strike down and content-id mismatch.

YouTubers whose rights are violated should know how to file takedown notices for taking down the infringing video. Those who are notified with a copyright strike down notice, should be aware of their remedies such as filing a counter-notice under the DMCA.

A video purported to match with the content of a subsisting video is either blocked or loses its capability to generate monetary gains for the creator. On the other hand, YouTubers should also be conscious of their rights such as disputing a content-id match.

Success as a Youtuber greatly depends on the viewership of his videos. If his content is being reused or duplicated, the viewership gets segregated. There were instances were youtube had to take down a modified video as it got more views than the original one. Also, YouTube pays out revenue to the infringer until a claim is made by the original owner. It is not conducive for the content owner to claim the profits made by the infringer before the copyright claim is made. Timely action in cases of copyright claims helps to tackle this issue, thereby generating more views for the content created by the owner.

What To Do When Someone Copies Your Content?

When YouTube’s content-id system does not recognize the copying of original content, a YouTuber can report the same. Things such as channel art, video description, the portion of a video or the full video can be reported to the platform.

Step 1: Click on report option found under the video that is alleged to be infringing your right and select the option “Infringes My Rights” and then click on “Infringes My Copyrights”.

Step 2: Once you are sure that you hold the rights for the content and if the usage of the content does not come under the fair dealing or fair use, a copyright takedown notice can be made by filling a webform provided by the platform. Click on the “Submit Copyright Complaint” option.

Step 3: You will have to specify the party affected by copyright infringement and paste the URLs of the infringing video and original video. Youtube provides an option to add multiple videos if more than one of your videos are found to be copied.

Step 4: To make a complaint under the DMCA, you will have to enter a few personal details such as your legal name, address, email id, phone numbers and so on. A declaration has to be made stating that the notice made is:

• Accurate.
• In good faith.
• The party is aware of the legal ramifications in case of a false notification.
• Complainant is the owner or authorized agent who can act upon the infringement of such exclusive right.
• Use of the content is not authorized by the copyright owner.

Step 5: Youtube will send you a mail regarding the confirmation of the takedown request and shall also notify the opposite party about the complaint filed against him. 

Filing a takedown notice is initiating a legal proceeding against the opposite party under the DMCA. Hence the person submitting such complaint should always keep in mind that a false allegation can result in the suspension/termination of his youtube account and he may be liable for other legal consequences as well. In cases where the copyright owner finds that he had misidentified the content or had submitted an infringement notification by mistake, youtube provides an option for retracting such notification. YouTube provides a procedure for retracting such complainants. A creator affected by such notification can request the complainant directly to make a retraction.

What Happens When A Video Is Taken Down?

When a video has been taken down as a result of a legal notice filed by the owner of the content its termed as a “copyright strike”. YouTube takes down such videos on the request of the owner for complying with the copyright laws such as the DMCA. When the creator gets a copyright strike for the first time, it acts as a warning and the person is taken to youtube’s “Copyright School” wherein the creator has to watch some videos and answer some questions on the copyright policy followed at youtube. When an account is subjected to a copyright strike, it loses the ability to monetize the content. Details of the copyright strikes can be accessed from the “YouTube Studio” application or website.

When your channel gets 3 copyright strikes:

• Your account, along with any associated channels, is subject to termination.
• All the videos uploaded to your account will be removed.
• You can’t create new channels.

A copyright strike can be resolved by:

• Filing a counter-notice if the video was taken down mistakenly or if the use of the content comes under fair use or fair dealing.
• Asking the complainant to retract their copyright infringement notice.
• After the expiry of 90 days.

What To Do When A Video Is Removed For Copyright Infringement?

When a video is removed for copyright infringement, the creator of such video usually has 2 remedies:

1. 1. Filing A Counter-Notice in reply to a takedown notice filed under the DMCA; When a copyright owner files a takedown notice for uploading a video without his authorization, youtube takes down the video. However, the opposite party can file a counter-notification for reinstating the removed video. A counter-notification can be filed only when the party is sure that his use of the content comes under the fair use policy or if there is a misidentification of content by the copyright owner. If the video is removed for other reasons, the opposite party has to wait until the expiry of the copyright strike. YouTube reviews the counter-notification and evaluates the ground by which the creator has contested against the takedown notice. After which, the counter-notification is forwarded to the claimant. The claimant within 10 days, has to provide the evidence of initiating a legal action to keep the content down. A counter-notification can be filed by logging in the “YouTube Studio” feature. Users whose account has been suspended can file a free-form counter-notification. 
   2. Disputing a Content-id claim: A content creator whose video has been found to be matching with existing content can dispute such claim:

• If the content was misidentified 
• if the creator has valid authorization or licenses to use such content.
• If the usage comes under fair use or fair dealing
• If it is your original content.

When a content-id dispute is filed, the copyright owner gets a 30 day time period to respond. If the copyright owner fails to reply within 30 days, the claim expires on its own. The copyright owner can:

• Release the claim: If they agree with your dispute, they can release their claim. If you were previously monetizing the video, your monetization settings will be restored automatically when all claims on your video are released.
• Uphold the claim: If they believe their claim is still valid, they can uphold it. If you feel it was mistakenly upheld, you may be able to appeal their decision.
• Takedown your video: They can submit a copyright takedown request, which means you’ll get a copyright strike on your account. A counter-notification can be filed at such instances.

When a content-id dispute is initiated, the monetization of the content is withheld and it is distributed later to the appropriate party.

Provisions For Fair Use

Fair use allows a creator to reuse the content created by the copyright owner without his permission. Fair use is applicable only on certain circumstances and the provisions for fair use or fair dealing aren’t determined by Youtube. Content creators have to be careful while using the content belonging to the copyright owner. Youtube’s content id system may not recognize fair use since it is a relative concept. Using a small portion of the content, using the same with disclaimers or usage without monetary intentions does not mitigate the risk of copyright infringement. Hence, there is always a risk in using copyrighted material in the name of fair use. Fair use differs from country to country and is decided by a Court of Law. Commentaries, criticism and research are normally accepted as fair use in the United States. US courts consider factors like the quantum of the content copied, the scope of the reused content, and impact on monetary gains of original content for determining fair use. Youtube has introduced various features that allow claimants to specify timestamps of infringements while making fair use claims.  It provides tools for easy removal of claimed music or content and to swap it with copyright free content from “YouTube’s Audio Library”.  

Conclusion

From September 2019, YouTube shut the option for music companies to make manual claims. YouTube, in a blog post, announced the changes in its manual claim policies to prevent music companies from stealing the revenue of content creators in youtube. The platform considers music companies to be using the manual claiming option in an unfair and aggressive manner. The manual claiming policy is different from its content-id system in such a way that the copyright owner themselves identify the infringement instead of relying on youtube’s automated tool. Music companies were said to be looting the revenue of creators even when the music is played unintentionally for a second. For eg, a blogger who is making a live recording walks past a store that plays a copyrighted song loses all his revenue to the music owners. To tackle this issue, Youtube has made it compulsory for claimants to add timestamps for pointing out the infringement while making complaints. Content creators are given the option to trim out such portion from their videos and add copyright-free content from “YouTube’s Audio Library”. They can now monetize the video after removing such portions. Copyright holders can now only prevent the creators from monetizing the video or block the content. The ability of the copyright holders to monetize the infringing video is now minimized.

References

1. https://www.youtube.com/intl/en-GB/about/copyright/#support-and-troubleshooting
2. https://support.google.com/youtube/answer/2797449?hl=en
3. https://www.dummies.com/business/marketing/social-media-marketing/10-things-to-know-about-copyright-and-youtube
4. https://www.tubefilter.com/2018/11/07/youtube-payouts-content-id/
5. https://www.theverge.com/2019/8/15/20806189/youtube-manual-music-copyright-claim-update-more-blocked-videos

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

The post What Youtubers Should Know About Youtube’s Copyright Policy? appeared first on iPleaders.

The article is written by Ayush Verma, a student of Ram Manohar Lohiya National Law University, Lucknow.

Dispute resolution is the process of resolving disputes between the parties. It is one of the most widely practised areas in the field of law. It has become a tool to resolve disputes between the disagreeing parties in the Courts.

There are two dominant methods by which disputes are settled in law firms. They are:

1. Litigation
2. Arbitration

In litigation, issues are presented before a court, comprising of a judge or jury, who give their ruling on the issues. And, in Arbitration, dispute between the parties is settled by a neutral third party, called an arbitrator. Based on the pieces of evidence, arbitrator or arbitrators decide the matter.

The article has been written after taking into account the rankings of given firms on different websites and recent awards given to the firms, working in the field of dispute resolution. After assessing the data, a list of firms is taken which can be said to be top law firms in the country in the field of dispute resolution. Though the list is only suggestive, it would be of great help to the students who want to intern in the top dispute resolution firms, and young lawyers who are finding good dispute resolution firms to work into.

Cyril Amarchand Mangaldas

The firm started in 2015 after separating from its parent firm Amarchand Mangaldas & Suresh & Shroff Company. It is one of the most prestigious firms in India. It has over 750 lawyers, including 130 partners and its offices are located in Mumbai, New Delhi, Bengaluru, Hyderabad, Chennai and Ahmedabad.

The firm is highly experienced in providing successful strategies for resolving conflict situations and disputes of its clients. It provides legal help not only in litigation but also by alternative dispute settlement methods like arbitration, mediation and conciliation.

The firm handles domestic as well as international commercial cases before all courts, tribunals and forums including:

• Joint Venture related disputes
• Rights of the shareholders
• Transaction related to Real Estate
• Tax-related matters
• Competition related matters
• Commercial and infrastructure contracts
• Matters relating to Company Law
• Regulatory matters
• Securities law matters

Key Clients

The firm has represented the Board of Control for Cricket in India with Herbert Smith Freehills in a matter relating to the arbitration over the damage claim of $62.9 million initiated by the Pakistan Cricket Board before the Dispute Resolution Committee of the International Cricket Council. Here the petitioner had alleged the breach of a letter from the client in 2014 tour to Pakistan that did not take place.

Contact details of the firm can be accessed here.

AZB and Partners

The firm was founded in 2004 by Zia Mody along with Bahram Vakil and Ajay Bahl. It has 500+ professionals and its offices are located in Delhi, Bangalore and Mumbai.

The firm has dealt extensively in the resolution of civil, criminal, commercial and constitutional law disputes through litigation in the Supreme Court, High Courts and several other courts and tribunals. It conducts arbitration, mediation and negotiation for its clients within and outside India.

Key Clients

It has represented Reserve Bank of India against Internet and Mobile Association of India where the Bank issued a circular prohibiting banks from either dealing in virtual currencies or providing other services facilitating entities in dealing with the currencies.

It has represented Nissan Motors in an arbitration case against the Indian government under the India-Japan comprehensive economic partnership agreement for claiming the damages and the unpaid valued added tax refunds which were promised by the Tamil Nadu government when Nissan Motors set up a manufacturing plant with Renault in Oragadam near Chennai in 2010.

Other notable clients include ASF-Keystone, Actis, BSES Rajdhani Power, BSES Yamuna Power, ETA Star Holdings, KKR India Asset, IHH Healthcare and Tokheim India etc.

Contact details are given here.

Shardul Amarchand Mangaldas

The firm was founded in 2015 and is headed by Shardul Shroff as the executive chairman of the firm along with Pallavi Shroff as the managing partner. The firm has over 600 lawyers including 110 partners and its offices are located in New Delhi, Gurgaon, Mumbai Ahmedabad, Bangalore, Chennai and Kolkata.

The firm deals in domestic and international arbitrations, commercial & corporate and regulatory disputes in various courts, tribunals, forums, administrative authorities & regulators in India.

Key Clients

It has represented Tata Communications in filing a writ petition for challenging an award passed by the land acquisition collector in the acquisition of land that belonged to the client at Greater Kailash Enclave for construction of a metro station as part of the project of Delhi Metro Rail Corporation.

It has also represented the National Dairy Development Board and an executive director in filing Public Interest Litigation challenging the director’s appointment that he did not complete a minimum of three years’ service on the date of appointment, which was in violation of an office memorandum of the government.

Other notable clients include Channel Vas Services India, Reebok International, Sterlite Technologies, Tata Sons and Thiess Minecs India etc.

Contact details are given here.

Karanjawala & Co.

The firm was founded by Raian Karanjawala and its managing partner, Manik Karanjawala. Its offices are located in Delhi. The firm is well experienced in dealing with dispute resolution matters across different sectors.

Key Clients

It has represented Star India in the writ petition challenging the Telecom Regulatory Authority of India’s new regulations that fixed the price of TV channels and the price of the content.

It has also represented Adani Enterprises in a dispute over the Chhendipada coal block at the approximate amount of $73.8 million.

Other notable clients include Air Asia International, Go Air, HT Media, Piramal Enterprises, Tata Motors and Tata Singapore Airlines etc.

Contact details are given here.

Agarwal Law Associates

It was established in 1968 by its senior most member Mr. EC Agarwal. It comprises of 7 partners and 21 associates and its offices are located in Delhi.

Key Clients

The firm represented Essar Oil before an International Tribunal against UII (backed by International Re-insurers) wherein Essar Oil was seeking an advance loss of profit claim for the delay caused by a cyclone in construction of its refinery project in Gujarat.

Contact details are given here.

Khaitan & Co.

The firm was founded by Late Debi Prasad in 1911 with the assistance of his brothers Mr. Lakshmi Prasad Khaitan and Bhagwati Prasad Khaitan. It has over 530 lawyers including 115 partners and directors and its offices are located in Mumbai, Delhi, Kolkata and Bangalore.

It offers services across litigation, arbitration, regulatory and pre-disputes advisory assignments. It also offers advice to its clients on matters relating to complex domestic and international commercial arbitration such as pre-arbitration strategy, settlement discussions, representation during arbitral proceedings and recognition and enforcement of awards or challenges.

Key Clients

It has represented Cement Manufacturers’ Association, Ambuja Cements, DCM Shriram, Graphite India and HEG in seeking immunity from the ban on the use and import of petroleum coke in India, which would have led to the shutdown of calcium carbide and graphite electrode manufacturing industries and severely affected the cement industries as well.

It has also represented a Japanese joint venture partner in securing its investment in the joint venture company which could not be completed due to disputes among the joint venture partner in international commercial arbitration and before the National Company Law Tribunal.

Other notable clients include Essar Oilfields Services, GX Technology Corporation, IVL Dhunseri Petrochem Industries and Voestalpine Schienen etc.

Contact details are given here.

Bharucha and partners

It was founded in March 2008. It has over 10 partners and 70 associates and its offices are located in Delhi, Mumbai and Bangalore. 

It has gained wide recognition for its arbitration experience. The firm’s senior partner MP Barucha handles the firm’s dispute resolution practice and has made a mark for his arbitration expertise. The lateral hire of Karthik Somasundaram has added to the firm’s expertise in this area.

Key Clients

It has advised Idea Cellular when it merged with Vodafone in its $23 billion deal, and again when it merged its shareholdings with Indus Towers into Bharti Infratel to create $14.6 billion entity.

Contact details are given here.

Luthra and Luthra Partners Law Offices

It was established in 1990 by its founder and managing partner Rajiv Luthra, who runs the firm along with Mohit Saraf, who is a senior partner of the firm. Its offices are located in Delhi, Mumbai, Bangalore and Hyderabad. It comprises 350 counsels including 78 partners. 

Its dispute resolution practices are one of the largest in India covering numerous sectors in representational and advisory legal services by guiding its clients, individuals and companies, on disputes relating to:

• litigation or arbitration;
• appearances in court and tribunals;
• selection and management of experts; 
• development and execution of strategy; and
• conduct of hearings and settlement negotiations.

Key Clients

It represented the International Air Transport Association in the filing of consumer complaints against the United India Insurance Company which failed to process the loss claims based on its insurance policy before the National Consumer Disputes Redressal.

Other notable clients include Protection Insurance and Regency Creations etc.

Contact details are given here.

J. Sagar Associates

The firm was founded in 1991 by Jyoti Sagar, and was later joined by Berjis Desai on April 1, 2003, by starting its Mumbai office. It has over 300+ lawyers and its offices are located in Ahmedabad, Bangalore, Chennai, Gurgaon, Hyderabad, Mumbai and New Delhi.

The firm has around 30 partners and 100 litigators working in the field of multi-jurisdictional and multi-disciplinary dispute resolution. It has dedicated practice groups for managing disputes in the areas of regulatory & policy disputes, telecommunications, securities law, taxation and competition law.

Key Clients

It has successfully represented the Association of Power Producers, Rattan India, GVK, GMR Group and Coastal Energen in the challenge against the 12th February circular of Reserve bank of India on stressed assets as arbitrary and ultra vires of Article 14 and the Banking Regulation Act.

Other notable clients include Louis Dreyfus Armateurs, SAP India and West Bengal Industrial Development Corporation etc.

Contact details are given here.

Economic Laws Practice (ELP)

The firm was set up in 2001 by eminent lawyers from diverse fields. It has 200+ professionals with 54 partners and its offices are located in Delhi, Mumbai, Pune, Ahmedabad, Bangalore and Chennai.

It has been consistently recognised as a leading Dispute Resolution firm in the country. It deals in disputes across all domains including corporate disputes, commercial disputes, regulatory disputes, tax disputes, domestic and international arbitration and white collar crimes.

It has represented GE India Industrial in the pending customs duty litigation proceedings before various courts and tribunals in India including the Supreme Court and Customs Excise and Service Tax Appellate Tribunal.

Key Clients

It has represented Multiplex Association of India in a dispute against the Karnataka government where the government imposed a uniform price cap of Rs 200 on all films displayed in cinemas in Karnataka. Here the client challenged the price cap since the government, especially the Kannada Cultural and Information Department does not have the power for regulating or restricting prices that are charged by private entities.

Other notable clients include Heligo Charters, Larsen & Toubro Sapura Shipping and Meridian Shipping Agency etc.

Contact details are given here.

Trilegal

The firm was founded in 2000. It has over 300 lawyers and 40 partners and its offices are located in Delhi, Mumbai, Bangalore and Gurgaon.

It has rich experience in settling disputes related to cross border financial and investment disputes before various courts and tribunals. It handles a wide variety of corporate-commercial and regulatory disputes in diverse sectors.

Key Clients

It has represented TerraForm Global Inc. and its Indian subsidiaries in a London seated ICC governed arbitration with Wind World (India) Limited in a dispute concerning operation and maintenance of wind power projects in India.

It has also represented Mitsubishi Hitachi Power Systems, Ltd. (MHPS) and other MHPS entities before the Madras HC in disputes arising under the terms of certain joint venture agreements. The primary allegation against the MHPS entities was that they had induced the breach of non-compete obligations under these joint venture agreements. 

Other notable clients include General Motors, Tata Communications, Abu Dhabi National Energy Co. PJSC (TAQA), AugustaWestland and Telenor ASA etc.

Contact details are given here.

Kachwaha & Partners

It is a full service law firm with its offices in Delhi and Mumbai. It is emerging as a leading firm in the area of Dispute Resolution. 

Its practice areas include wide arrays of litigation and arbitration matters, focusing particularly on cross-border work, including acting for large multinational corporations before the ICC. Other areas of focus include general commercial, construction and infrastructure disputes. Its managing partner, Sumeet Kachwha, is a leading individual in dispute resolution and is ranked as one of the top lawyers in India.

Key Clients

It successfully represented Korean conglomerate Daelim in Delhi High Court which enforced an earlier ICC arbitral award of $197 million in the client’s favour.

Contact details are given here.

Nisith Desai Associates

It was established in 1989. Its offices are located in New Delhi, Mumbai, USA (Silicon Valley), Singapore and Bangalore.

It specialises in cross-border work, particularly international arbitrations. It also offers expertise in investment treaty issues as part of the wider dispute resolution practice.

Key Clients

It represented Navigator Capital Advisors in complex arbitration and litigation proceedings, started by Business India Exhibitions and concerning a dispute between the parties on provisions relating to share subscription and debenture share subscription agreements concluded in 2007.

Other notable clients include Enercon Technologies, Fortissimo Capital and Multisphere Power Solutions etc.

Contact details are given here.

If you want to know about the best tax law firms in India, you can see here.

References

• https://www.legal500.com/c/india/dispute-resolution
• https://www.leadersleague.com/en/rankings/litigation-arbitration-international-arbitration-ranking-2019-law-firm-india
• https://www.leadersleague.com/en/rankings/litigation-arbitration-commercial-litigation-ranking-2019-law-firm-india
• https://chambers.com/guide/asia-pacific?publicationTypeId=8&practiceAreaId=467&subsectionTypeId=1&locationId=110
• https://www.asialaw.com/countries/india/in
• http://chamberpractice.com/recommended/recommend.htm
• https://www.vantageasia.com/india-top-law-firms-2019/

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

The post Best Dispute Resolution Firms in India appeared first on iPleaders.

The article is written by Ayush Verma, a student of Ram Manohar Lohiya National Law University, Lucknow.

There are not many nationalised firms in the field of TMT and most of them are based out of Delhi and Mumbai. However, there are some boutique firms also that specialise in this field.

The top firms in the field of TMT are determined with the help of information provided on various websites and the awards that went to these firms in the TMT practice. The list of firms given is suggestive based on their rankings on sites.

Cyril Amarchand Mangaldas

The firm started in 2015 after separating from its predecessor Amarchand Mangaldas & Suresh & Shroff Company. It has over 750 lawyers, including 130 partners and its offices are located in Mumbai, New Delhi, Bengaluru, Hyderabad, Chennai and Ahmedabad.

The TMT group of the firm advises clients in structuring and executing of their transactions in the TMT sphere in India, and also provides specialist regulatory and strategic advice. In addition, it provides advice on commercial contracting and represents clients before the regulatory authorities and government departments that are relevant to the constituent industries.

It has a large and diverse clientele in TMT and its sub sectors including:

• Information Technology (including software development and licensing)
• Outsourcing
• Online gaming
• Online gambling
• Mobile and fixed line telecom operators
• Internet service providers
• Print and digital media
• Broadcasting
• Film and music production and distribution

Key Clients

It represented Apollo Hospitals Enterprises in its entry to a long-term partnership with EIT Services India as part of its drive for streamlining and optimising its operation.

Contact details are given here.

Naik Naik & Co.

The firm was founded in 2004 by its Managing Partner, Ameet Naik. The firm has 50 legal professionals working in its three offices in Mumbai.

The firm provides legal assistance to leading production houses, television channels/ broadcasters, studios (including Hollywood studios), digital media companies and content aggregators for and in relation to due diligence, acquisition, production, distribution and exploitation of various films and television shows on various modes, media and format. The firm advises various regulatory and industry bodies, including Indian Broadcasting Federation, Producers Guild, IFTPC on industry related issues.

Key Clients

It represented Viacom 18 in procuring the stay on ban in the screening of Padmavat Movie by the four states of India. The firm also helped in securing John Doe orders from the high courts in India to fight the menace of piracy.

Other notable clients include Amitabh Bacchan, Deepika Padukone and Ms. Sonam Kapoor.

Contact details are given here.

AZB & Partners

The firm was established in 2004 by Zia Mody along with Bahram Vakil and Ajay Bahl. It has 500+ employees and its offices are located in Delhi, Bangalore and Mumbai.

The firm is highly experienced in TMT practice and in assisting clients with issues ranging from content licensing to providing counsel on online entertainment regulations. It has also worked in the areas of cable television channels, Direct to Home platforms, radio and film production and in assisting Media Houses for their initial public offerings. The firm has also represented its clients outside India in international courts in matters relating to telecast rights, intellectual property disputes and antitrust and privacy issues with regulators.

Key Clients

It represented Wipro in assisting clients with issues ranging from content licensing to providing advice on online entertainment regulations.

Contact details are given here.

Trilegal

The firm was established in 2000. It has over 300 lawyers and 40 partners and its offices are located in Delhi, Mumbai, Bangalore and Gurgaon.

It offers regulatory and transactional advice to telecom and technology players, software and technology companies in India and abroad in areas including outsourcing, e-commerce, technology transactions, IP strategy, media and broadcasting. Its practice areas include films, electronic books and other online content distribution media and also works with cable and broadband companies that are looking to leverage existing cable networks throughout the country to distribute video on demand and triple play services.

Key Clients

It assisted Macnica in its USD 40 million acquisition of a 42% stake in Crowdanalytix Solutions.

Is also assisted Intel in connection with an audit of their existing closed user group facilities as well as their telecommunications infrastructure in connection with their business process outsourcing facilities in India.

Other notable clients include Microsoft Corporation, Gujarat government, Hewlett Packard, Cisco and Vodafone etc.

Contact details are given here.

Nisith Desai Associates

It was founded in 1989 and its offices are located in New Delhi, Mumbai, USA (Silicon Valley), Singapore and Bangalore.

The firm is widely recognised in transactional and regulatory TMT practice. It also provides advice on matters relating to joint venture and investments, e-commerce and telecom regulatory issues and also advises government bodies on fintech and crypto-assets work. Its client base constitutes e-commerce companies, IT and online gaming service providers.

Key Clients

It assisted Unocoin, one of the largest crypto currency exchanges in India, on various regulatory aspects, and in challenging the Reserve Bank of India’s notification asking banks and other regulated entities to disassociate with crypto currency service providers, including exchanges in a writ petition before the High Court claiming that it is violative of the fundamental right to practice any profession, trade or business.

Other notable clients include Viacom 18, Videocon and Sony Productions Inc. etc.

Contact details are given here.

DSK Legal

The firm was established in 2001 with the help of 7 lawyers, and its offices are located in Mumbai, Pune, Delhi and Bangalore. It has a team of over 140 lawyers including 13 partners. It merged with litigation and real estate firm AKS Law Associates in April, 2011 spreading its access in South India.

Its focus areas in the field of TMT include:

• Motion Pictures and Television
• Talent and celebrity management and brand endorsements,
• Music and music celebrity management
• Internet and digital media
• Publishing
• IP Rights management for monetization of IP
• Due diligence

Key Clients

The firm represented Salman Khan in the 2002 hit and run case and helped him in getting speedy bail within 5 hours of the sentence being pronounced.

It also Assisted Direct Access India in acquiring life rights for the production of the biopic of Dhyan Chand from his family.

Other notable clients include PVR and Sony Pictures etc.

Contact details are given here.

Shardul Amarchand Mangaldas

The firm was established in 2015 and is headed by Shardul Shroff who is the executive chairman of the firm along with Pallavi Shroff as the managing partner. Their team consists of over 600 lawyers including 110 partners and its offices are located in New Delhi, Gurgaon, Mumbai Ahmedabad, Bangalore, Chennai and Kolkata.

It is widely recognised for its transactional TMT work, especially in financing and investment in the technology, media and telecommunication industries. It is also skilled in giving directions related to telecom regulations as well as data protection and licensing. It has worked for international social companies like Facebook and Whatsapp and various e-commerce and mobile companies and cloud service providers.

Key Clients

The firm assisted Walmart in its USD 16 billion acquisition of a majority shareholding in Flipkart. It advised Vodafone India in its merger with Idea Cellular and also represented Zee Entertainment Enterprises in its acquisition of 9x Media Private. 

Other notable clients include One97 Communications and Videocon etc.

Contact details are given here.

Kochhar & Co.

The firm was established in 1994 and has more than 200 lawyers working worldwide. Its offices in India are located in New Delhi, Mumbai, Bangalore, Chennai, Gurgaon and Hyderabad, and it also has four overseas offices in Dubai, Singapore, Atlanta, Jeddah.

The firm deals extensively in matters relating to e-commerce, cloud computing, data privacy and software licensing. It has gained wide recognition for providing advice related to telecom regulations. It has a large client base including household names in the banking and mobile technology space. It also actively works in the field of VoIP implementation and bandwidth sharing.

TMT team of the firm is instructed by Fedex to advise on its courier tracking device, including obtaining approvals from the Department of Telecommunications.

Key Clients

It has assisted Report Bee Edusys in its acquisition by XSEED Education, performing all due diligence related to business transfer, intellectual property and employment agreements.

It has also acted for Akamai in a range of matters concerning data protection, net neutrality and regulatory matters.

Contact details are given here.

J. Sagar Associates

The firm was established in 1991 by Jyoti Sagar. It has more than 300 lawyers and its offices are located in Ahmedabad, Bangalore, Chennai, Gurgaon, Hyderabad, Mumbai and New Delhi.

The firm has provided extensive advice to telecom service providers in relation to voice, data, VPN and value-added services, and telecom and broadcast infrastructure entities and film, television and music production and distribution companies. The firm also advises on legal, policy, commercial and regulatory matters like negotiate transactions and contract compliance and approvals. It also advises celebrities and companies on their brand endorsements/ management contracts.

Key Clients 

It has advised eBay Singapore Services in relation to the sale of its entire stake in Flipkart to Walmart.

It has also assisted Board of Control for Cricket in India in handling assignments for several sporting icons and companies promoted by them.

Contact details are given here.

Khaitan & Co.

The firm was established in 1911 by Late Debi Prasad with the assistance of his brothers Mr. Lakshmi Prasad Khaitan and Bhagwati Prasad Khaitan. It has around 530 lawyers including 115 partners and directors, and its offices are located in Mumbai, Delhi, Kolkata and Bangalore.

The firm advises its clients in regulatory, policy and compliance issues. It also advises them on information technology, outsourcing, data privacy and protection, and contractual and interconnection agreements. The firm’s assistance in media ranges from broadcasting and endorsement contracts to television show licensing arrangements and joint venture arrangement between media companies.

Key Clients

It has advised Flipkart on the acquisition of its majority stakes by Walmart.

It has also represented NTT Docomo in enforcement proceedings relating to shareholders’ agreement with Tata Sons.

Other notable clients include Birlasoft, National Engineering Industries and Central India Industries etc.

Contact details are given here.

Indus Law

The firm was founded in 2000 and its offices are located in Mumbai, Delhi, Bangalore and Hyderabad.

The firm has experience in advising on e-commerce and fintech-related mandates, including business structuring and regulatory compliance and it also handles related technology disputes as well as transactional TMT mandates. 

Apart from the above areas, it also advises on: 

• Commerce & electronic data interchange advice
• Conversion from brick and mortar retail to e-retail
• Cloud based delivery of software
• SAAS, IAAS and PAAS model implementation and software delivery
• Drafting, negotiating and reviewing equity subscription and shareholders agreements
• Drafting, negotiating and reviewing commercial agreements in relation to technology, media and telecommunication transaction
• Regulatory advice and communicating with the regulator or other governmental authorities in un-regulated sectors 
• Issues relating to Foreign Direct Investment and Competition Law
• Privacy and data protection

Key Clients

The firm assisted PayU Credit in its investment in the fintech company Paysense Pte.

It also assisted Times Internet in organizing the content library for its OTT and video streaming platform MX Player, including advising on content licensing, distribution and integration of other digital platforms.

Other notable clients include Microsoft India, Zee Entertainment Enterprises and Yahoo! India etc.

Contact details are given here.

Advaita Legal

The firm was founded in 2013 and has 40 lawyers and 2 partners. Its offices are located in Delhi and Mumbai.

It is well-known for dealing with investments in the telecoms and technology spheres and in assisting TMT companies entering the India market. It also provides advice on telecoms and technology regulatory issues, licensing and audits. It also deals with matters relating to the OSP environment as well as data privacy and regulatory compliance.

Key Clients

It has assisted Reliance Broadcast Network with regard to music license and end-user agreements relating to a mobile application, including advising on the regulatory framework relevant to the application.

It has also assisted Wipro in licensing issues by the Department of Telecoms for providing services at Delhi Airport.

Contact details are given here.

References

• https://www.asialaw.com/firms/j-sagar-associates/f1921#/rankings
• https://www.legal500.com/c/india/tmt#table_2272
• https://chambers.com/guide/asia-pacific?publicationTypeId=8&practiceAreaId=2015&subsectionTypeId=1&locationId=110
• http://chamberpractice.com/recommended/recommend.htm

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

The post Best TMT (Technology, Media and Telecommunications) Law Firms in India appeared first on iPleaders.

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 “Free Consent and Undue Influence”.

Introduction

Section 13 of the Indian Contract Act (ICA) defines consent as the meeting of mind of the parties i.e consensus ad idem (when two or more persons agree upon the same things in the same sense). Section 14 further qualifies consent is said to be free if the parties enter into a contract with free will, that means with no pressure and not caused by any of the following:  

1. Coercion (Section 15),
2. Undue influence (Section 16),
3. Fraud (Section 17),
4. Misrepresentation (Section 18),
5. Mistake (section 20 to 22). 

When there is no consent at all the contract is said to be Void Ab Initio.

Definition (S16) of The Indian Contract Act

Undue Influence is defined under Section 16 of the Indian Contract Act. When one party is in a position to dominate the will of others and actually misuses the power, then it is a case of undue influence, and the contract becomes voidable. When all the following three conditions are fulfilled then only the situation is considered as an undue influence:

1. One person is in a position to dominate the will of others.
2. He misuses his position.
3. He obtains an unfair advantage.

The word undue means unnecessary, unwarranted, or more than required. Influence means convincing the mind of a counterparty through changing his mind or changing his will, but this influence must be undue i.e it is not required. Undue influence applies to a relationship which may be blood relation or some other kind of relation i.e fiduciary or relation based on trust. It means the unfair use of one’s superior position to obtain the consent of a person who is in a weak position. For example, A police officer bought a property worth Rs 1 lakh for Rs 5000 from Ram, an accused under his custody. Later this contract can be cancelled and it can be held as void because there is a mental pressure on a person.

Ability to dominate the will of other

The dominant position is not defined in the Indian Contract Act but Section 16(2) provides certain conditions when a person is in a position to dominate the will of another. Cases, where a person is in a position to dominate the will of others, are as follows:

1. There must be a relation between the parties:

a) Real or apparent authority/relation in which one party can be dominated by the other party. For example, father and son, mother and daughter.

b) Fiduciary relation is the relation which is made upon the belief and trust between the parties. One party must believe the other. For example, Advocate and client, teacher and student, Doctor and patient.

Example of real or apparent authority:

• A Father exerts undue influence upon his son to do something on the will of his father.  Otherwise, he will part his relation with a son.
• A factory owner exerts undue influence upon his employee to make a certain agreement with him. If not he (employee) will be drawn from his job.

Example of fiduciary relation: 

• An advocate asks his client to give him extra money to fight the case from his side.

2. Mental or bodily distress means the mental capacity of a person is affected. It can be either permanently or temporarily affected. The reason behind such health condition can be age, illness, mental or bodily distress.

Consent under pressure

Consent under pressure means when consent is obtained forcefully. In this manner, consent is not lawful, so it had no binding effect.

Subtle species of fraud

Undue influence is said to be subtle species of fraud due to which a party controls the mind of the victim by his clever skills and with gradual proceedings but with very harmful effects. Sometimes the contract is signed due to fear, coercion, importunity or other domination. It was observed by the Privy Council in Someshwar Dutt vs Tribhawan Dutt that acts of undue influence range themselves under the heads of coercion or fraud. Generally, undue influence is often confused with coercion or duress. Duress occurs when there is a physical compulsion or direct force upon a person or there is a threat to a person’s life. In contrast to duress, undue influence may exist with or without force or threat to a person’s life.  For example, ‘A’ advances a sum of money to his son ‘B’ in his age of minority and through his parental influence over his son make him sign a bond of a greater amount of a sum due in respect of the advance. A used undue influence in this case as there is a fiduciary relationship between father and son as there is natural confidence between both which A abuses by making his son sign a bond. 

Relations which involves domination

All cases where there is an active trust and confidence between the parties and both parties are not on equal footing. The principle of undue influence applies to all the cases where influence is acquired and abused. It applies to all relations where domination can be exercised by one party over another. i.e where exists a real or apparent authority or fiduciary relationship. In the category of undue influence, the circumstances under which the contract was made is taken in the account along with their relationships. The existence of a dominating position along with its use is mandatory to invoke an action. Merely a dominant position does not lead to undue influence. It arises only when this position is used for gaining an undue advantage. Undue advantage means any kind of advantage which is not warranted by circumstances in which the contract was entered. In the case of Ganesh Narayan Nagarkar Vs Vishnu Ramchandra Saraf, it was stated by the court that unfair advantage is the advantage or enrichment which is obtained through unjust means. It comes into existence when bargains favour a person who enjoys influence and which proves unfair to others.

Real or Apparent authority

Section 16(2) of the Indian Contract Act states that Undue Influence can arise wherever the donee stands in a fiduciary relationship to the donor or holds a real or apparent authority. In this type of influence, there is a real authority like a police officer or an employer who uses his dominance for his enrichment. Apparent authority is pretending as a real authority without its existence.

Mental distress

An only mental distress state of mind does not amount to undue influence until the defendant has used this opportunity to take unfair advantage from another party. Similarly, instigating a person to enter into a contract who has just attained majority amounts to undue influence under this category due to a lack of the plaintiff ‘s experience. In the case of Inder Singh Vs Dayal Singh, the court states that the undue influence arises when one party taking the temporary or permanent advantage of another’s mental condition executes a contract. For example, A entered a contract with B, who is a minor and is unable to understand the complex terms of a contract. It will amount to undue influence unless A proves that the contract was entered in good faith and with adequate consideration of B. A case of undue influence is established more easily when there is evidence to establish to show that the person influenced was of feeble mental capacity or in a weak state of health.

Burden of proof

Generally, the party bringing a claim has the burden to prove the truth of the facts on which he or she is relying. The burden of proof is on the claimant to show that undue influence was exerted by a stronger party over the weaker party, and the latter could not exercise free choice when entering the agreement. However, this burden can be shifted to the defendant in an undue influence case if the plaintiff can demonstrate that a confidential relationship existed between the testator and defendant, and that suspicious circumstance surrounded the preparation and execution of the will. When this occurs, the burden shifts totally on the defendant to prove that undue influence did not occur. When a person is found to be in a position by which he can dominate the will of the other or a transaction appears to be affected due to dominance, the burden of proof that no undue influence was exercised in the transaction lies on the party who is in a position to dominate the will of others. In the case of Diala Ram Vs Sarga, the defendant was already indebted to the plaintiff, who was village moneylender. He again took a fresh loan from a plaintiff and then executed a bond, wherein he agreed to pay some interest. The court held that the contract was unconscionable and therefore, the burden of proof was on the plaintiff to show that there was no undue influence in this case. The burden of proving that the contract was not induced by undue influence is to lie upon the person who was in the position to dominate the will of others if the transaction appears to be unconscionable.

Presumption of undue influence

There are some cases in which the Honourable Courts of India presume the existence of undue influence between the parties:

1. Where one of the parties to a contract is in a position to dominate the will of the other and contract is prima facie unconscionable i.e unfair, the court presumes the existence of undue influence in such cases.
2. Where one of the parties to a contract is a Pardanashin Woman, the contract is presumed to be induced by undue influence. In relation to Pardanashin Woman, Bombay High Court made an opinion that a woman becomes Pardanashin because she is totally exempted from ordinary social intercourse not because she is the seclusion of some degree.

A Transaction with Pardanashin Woman

When a Woman can be viewed from the screen or is placed behind the screen i.e veiled is called Pardanashin Woman. The protection of those women is rooted in the principle of good conscience and equity. Special laws are made for these women because they are subjected to ignorance, infirmity, illiteracy, etc are thus easily influenced. The burden of proof should be provided against the person who is transacting with a Pardanashin woman. He has to prove that the transaction had taken place with the consent of the women and her decision was taken by her without any coercion or enforcement and she was made well aware of the provision mentioned in the document of the transaction by the other party with whom she has made the contract. In the case of Tara Kumari vs Chandra Mauleshwar Prasad Singh, it was delivered by the court that the essential thing to establish the burden of proof is that the party executing them should be a free agent and the women should be informed about the terms and conditions of a contract. In the case of Kuna Dei vs Md Abdul Latif, it was delivered by the court that showing of the document to the pardanashin women won’t be enough to establish the burden of proof. Thus, he has to show that the women were explained clearly the facts in the document of the transaction.

This principle also applies to men also, as in the case of Daya Shanker Vs Bachi, who by their physical or mental capacity is prone to easy influence and after inducement tends to enter into a contract or transaction relating to purchase and sale of the property. The principle on which the protection by law is made for a pardanashin women is based on equity and good conscience of women.

Natural justice

Undue influence affects natural justice when the provision of a will are unjust, unreasonable and unnatural doing violence to the natural instincts of a heart, to the dictates of parental affection, to natural justice, to solemn promise, and to moral duty. Such unexplained inequality amounts to undue influence.

Conclusion

While concluding, it can be said that there is an inadequate consent in the presence of undue influence as defined in section 13 of the Indian Contract Act. Thus, in a fiduciary relationship and in other such forms of relationship, the party which enjoys the real or apparent authority must ascertain that the other party is free from external manifestation.

Reference

• Indian contract Act,1872

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

The post Elaboration On Undue influence Under Indian Contract Act, 1872 appeared first on iPleaders.

This article is written by Vanshika Kapoor, a 5th year student at Chander Prabhu Jain College of Higher Studies and School of Law.

“Constitution is not a mere lawyers document, it is a vehicle of Life, and its spirit is always the spirit of Age.”  – Dr. B.R. Ambedkar

What is Constitution?

Proudly being the bulkiest Constitution in the whole world, “Indian Constitution” is the Supreme Law of India. A constitution is a document having special legal sanctity that lays down the legal framework of the country, along with the principal function of organs of the government. Further, it also sets out the principal guidelines for operation of those organs of the government. 

Being a perfect combination of Rigidity and Flexibility, the Indian Constitution is also the most frequently amended Constitution in the world that consists of the following:

• A Preamble,
• 448 Articles (further grouped in 25 parts),
• 12 Schedules,
• 5 Appendices.

Framed by the Constituent Assembly of India, under the Chairmanship of Dr. Rajendra Prasad, the Indian Constitution was adopted on 26th November 1949. Further being effective from 26th January 1950, the Constitution of India replaced the Government of India Act 1935. 

The Constitution initially framed the:

• Rights;
• Duties;
• Government and Legal Procedures;
• Practices;
• Powers;
• Directive Principles, for the government and citizens of India.

What is Constitutional Law?

The body of law that lays down the powers, role, and structure of various entities within a State, as well as the basic fundamental rights of the citizens. These entities of a State are Legislature, Executive and Judiciary. Constitution Law is based on the Indian Constitution and it largely relies on rules and guidelines of the same. 

“The freedom enjoyed in Western society under the rule of law and constitutional government explains both the quality of its civilization and its wealth.”  –Paul Johnson

Historical Background of the Constitution of India

1600 to 1765: The British Influence

In 1599, some prominent London merchants petitioned the Queen to get incorporated into a Company for carrying on trade with Indies. After a year, on 31st December 1600, the East India Company finally came into existence after procuring a Royal Charter from the Queen. The company got incorporated under the name of ‘the Governor and Company of Merchants trading into the East Indies.’ 

The Company thus formed was granted an exclusive right to trade between the Cape of Good Hope and the straits of Magellan, for a period of 15 years. The Royal Charter further empowered the Company to make bye-laws and issue orders as well as ordinances for the good governance of the Company. 

The Company was incorporated by the merchants with the head objective of Spices of the Indies. During this period, Bombay, Madras, and Calcutta became the Chief settlement presidencies of the Company. 

Charter of 1726: (Mayor’s Court)   

Initially, the Mayor’s Court was established in 1683 while the Charter of 1726 established a Mayor’s Court that drew their powers directly from the Crown. It also provided for establishment of a corporation in each Presidency town. The Charter of 1762 is considered a glowing landmark in the history of legal system since it introduced English Laws in India. 

1765 to 1858: Beginning of the British Rule

• The grant of Diwani made the Company become true masters (i.e. Diwan) of the provinces of Bengal, Bihar, and Orissa. This meant that the Company could collect revenue from these three provinces and also be responsible for Civil Justice there.
• After the death of Mir Jaffar in 1765, his son entered into a treaty with the company, thus transferring Nizamat functions to the company. 

The Regulating Act, 1773

• The British government passed the Regulating Act in 1773 as an attempt to regulate the affairs of the East India Company. 
• Constitution of the Company in England was modified to further improve its administration in India.
• The Act ensured Parliamentary Control over the Court of Directors.
• Governor of Bengal was made the first Governor-General of Bengal (Warren Hastings).
• Brought the Governors of Bombay and Madras under the control of the Governor-General of Bengal.
• Governor-General was given the right to make rules and regulations for further improvement of administration over the three presidencies under the Company.
• A better relationship was established between the three Presidencies of Bengal, Madras, and Bombay. 
• A Supreme Court was set up in Calcutta under the Charter of 1744. The Supreme Court further prohibited Company Officials from engaging in Private trade or to accept bribes from natives.

The Act of Settlement, 1781

The Act of Settlement, 1781 came into force to remove the defects of the Regulating Act of 1773 and improve it. The Act of Settlement, 1781 made the following changes:

• It exempted the Company Officials from implications of jurisdiction of the Supreme Court over any act done in an official capacity.
• Refined and modified Supreme Court’s Jurisdiction over Natives and the Company Officials.
• Guidelines were given as to which laws are to be applied by the Supreme Court.
• Empowered the Governor-General to set regulations for Provincial Courts and Councils.

The Pitt’s India Act, 1784

• British Government claimed ownership over the territories owned by the Company in India by calling those territories “The British Possessions in India.”
• Commercial and Political functions of the Company were distinguished by appointing separate Committees for the same.
• British Government placed direct control over Indian affairs.
• Councils of Governor were established in Bombay and Madras.

The Charter Act of 1813

• East India Company’s monopoly over Indian Trade was shut down;
• Indian Trade was made open to all British Subjects;
• British Crown asserted supreme power over the Councils.

The Charter Act of 1833

• Governor-General of Bengal was made the Governor-General of India;
• Crucial step towards Centralization in British India;
• East India Company was turned into an Administrative body.

The Charter Act of 1853

• This Charter Act carried on the task of separating the Legislative and Executive functions of the Council of the Governor-General.
• A separate Legislative Council was created for India.
• Recruitment of all Civil Servants of the Company was based on an open competition system.
• Finally, Indian Territories were transferred to the British Crown, thus the East India Company’s career came to an end.

1858 to 1919: End of Company’s Rule

The Government of India Act, 1858

• After the Revolt of 1857, the East India Company ended and rule of the Company was replaced by the rule of British Crown.
• The British Queen issued a Royal Proclamation transfering the Government of India to the British Crown.
• Powers of the Crown were vested in the Secretary of State of India.
• Secretary of State was to be assisted by the ‘Council of India,’ consisting of 15 members.
• Secretary of State was vested with complete authority to regulate the Indian Administration through Viceroy and his agents.
• Lord Canning was made the first Viceroy of India.
• Court of Directors and Board of Control were abolished.

The Indian Council Act of 1861

• The Act provided the basic framework for Government in India;
• Legislative Councils established in the provinces and the Centre;
• Legislative powers to Bombay and Madras provinces restored;
• Introduced Indirect Elections with partial representation of people;
• Redefined and further enlarged the functions of Legislative Councils;
• Powers to discuss the Budget and to make the Executive accountable were also vested in the Legislative Council.

The Indian Councils Act of 1909: Morley Minto Reforms

The Indian Councils Act was introduced and implemented by Morley (Secretary of State) and Minto (Viceroy of the State) in 1909.

It included the following reforms:

• Central Legislative Council was renamed as the ‘Imperial Legislative Council’;
• Number of members of the Central Legislative Council were increased from 16 to 60;
• Direct elections were introduced to the Legislative Council;
• A Separate Communal Electorate was established for representing Muslims;
• India was included as a member in Viceroy’s Executive Council.

1919 to 1947: Introduction to Self-Government

The Government of India Act, 1919: Montagu-Chelmsford Report

The Morley Minto Reforms failed because of lack of support towards Parliamentary form of Government which led to a need for new reforms. As a result, The Government of India Act was passed in 1919. This Act allowed for greater role and association of Indians in Administrative matters.

Some of the main features of the Act were as follows:

• Dyarchy system was introduced in the provinces where the provincial subjects were bifurcated into ‘Reserved’ and ‘Transferred.’
• Governor was not responsible to the Legislative Council over the Reserved subjects.
• Bicameral Legislature was introduced at the Centre.
• A Public Service Commission was established in India.
• A necessary condition was also introduced, requiring 3 of the 6 members of the Viceroy’s Executive Council to be Indians.
• Extended voting rights allowing 10% of the population their right to vote.

Simon Commission, 1927

The British Government appointed the Simon Commission in 1927 under Stanley Baldwin to provide a report on the working of the Constitution of India, established by the government of India Act, 1919. Further, in 1928, a group of 7 MPs were sent to India, from Britain to study the Constitution and also suggest reforms or make recommendations to the government. The Commission composed purely of British people.

Boycott of the Simon Commission

Indians got heated due to exclusion from the Commission, thus the Congress Party decided to boycott the Simon Commission at their session in Madras. Soon, the Muslim League also boycotted the Simon Commission. Opposition to the Commission led to mass black flag demonstrations, hartals, and major protests in the country. Chants of “Simon go back” could be heard all across the nation. As a result, police had to resort to violent lathi charge over the protestors. 

The Commission Report and its Impact: 

• The Simon Commission’s Report was published in 1930.
• The Government ensured the people of India that their opinion would be rightfully considered.
• Dyarchy system’s abolition was suggested, along with setting-up of Representative Governments in provinces.
• The Committee recommended not to continue the Separate Communal electorate.
• Led to the Government of India Act, 1935 which further went on to be the basis of our current Constitution. 

The Government of India Act, 1935

• It was the bulkiest and the last Constitutional Reform introduced by the British in India and the princely states. 
• Legislative power was bifurcated between Central and Provincial Legislature.
• Legislative power was further distributed among the Centre and States through Federal list, State list, and Concurrent list.
• The Act provided for the establishment of the All India Federation consisting of both the British India provinces and Princely States (or, any other States that desired to be a part of the Federation).
• The Act further proposed combining of British India Provinces and Indian States as a single unit.
• A Bicameral legislature was introduced.
• The Federal Court was established.
• Indian Council was abolished.
• Accession of states to the Federal was initiated and each ruler of such state had to sign an ‘Instrument of Accession’ at the time of joining.
• The Act continued till the Indian Constitution came into force.

Federal Court

• Federal Court of India was established under the Government of India Act, 1935;
• Original, advisory and appellate jurisdiction was awarded to the Federal Court;
• It comprised of one Chief Justice and 6 other judges;
• Judges were appointed by the Crown;
• Necessary qualifications of Judges of Federal Court defined.

Cripps Mission, 1942

In 1942, a mission was sent to India with Constitutional proposals. Such mission was headed by Stafford Cripps. 

Proposals made by the Cripps Mission:

• An elected body should be set up in India to frame the Indian Constitution.
• Provisions should be made to encourage the involvement of Indian states in the Constitution-making body.
• Elected people from the provincial legislatures and those nominated by the Indian Princess should be included in the Constitution drafting body.
• The British government shall accept the new constitution only if: 

(i) any province unwilling to join the Union can have a separate Constitution, forming a separate union, and 

(ii) the new constitution-making body and the British government would negotiate a treaty to safeguard religious and racial minorities and to give effect to the transfer of power.

Thus, the Cripps Mission was mainly sent to India seeking the support of India in the Second World War. However, Indians were highly dissatisfied with the proposals of the Mission and hence, rejected them.

The Cabinet Mission, 1946

• The Cabinet Mission was introduced in India on 4th March, 1946.
• The mission was introduced with an attempt to reach an agreement with Indian leaders for framing of the Indian Constitution, to establish an Executive Council, and to formulate the Constituent Assembly of India.
• The mission proposed the inclusion of British India and the States in Union of India.
• The mission also suggested the setting up of an interim government with the support of major political parties.

The Indian Independence Act, 1947

• The Act provided for the creation of Indian and Pakistan as two independent dominions. It also provided for the partition of Punjab and Bengal. 
• The Boundary Commission was to decide the boundaries between the two dominion states. 
• The Princely States received an independent choice to join either India or Pakistan, or remain independent.
• The Constituent Assemblies of both countries were given the powers to frame a Constitution for their respective country.
• The British government would cease to have any control over the Dominions or Provinces, after the 15th of August, 1947.

1947 to 1950: Framing of the new Constitution

The Constituent Assembly came into force in 1946. Members of the Constituent Assembly included Jawaharlal Nehru, Dr. Rajendra Prasad, Sardar Patel, Maulana Azad and many more supreme leaders of the country. On 9th December, 1946, the first meeting of the Constituent Assembly took place. Dr. Rajendra Prasad was later appointed as the chairman of the Constituent Assembly. A Drafting Committee was also established under the chairmanship of Dr. B.R. Ambedkar.

Conclusion 

In January 1948, a draft of the Indian Constitution was published, to which, various amendments were proposed and further discussed. On 26th November, 1949, the Constitution of India was passed and adopted by the Constituent Assembly. Finally, after 2 years, 11 months, and 18 days, the Constitution of India came into force on 26th January, 1950. 

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

The post Constitution of India: A Historical Creation appeared first on iPleaders.

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

In-house counsel jobs are super attractive, but most in-house legal teams do not want to hire a fresher. I have written about why that happens before in great detail. Today I will restrict myself to how freshers who want to work in in-house legal teams can still manage to get a job with a top in-house legal team. 

I am assuming if you are reading this you are probably convinced that in-house law jobs are attractive and not inferior to law firm jobs. If not, perhaps you should read this.

#1 There are companies that hire freshers

There are several companies with very large legal teams, such as ICICI Bank, SREI, ITC, Reliance, etc. who do not hesitate to hire freshers, because if there is a large legal team in place it is easier to absorb the pressure of training the freshers. 

Any large in-house legal team is a potential candidate for hiring freshers. 

However, most of these have favorite campuses to hire from. It is hard to land these jobs unless you are studying in those specific colleges. 

There are also PSUs that hire freshers for in-house positions. These are quite lucrative, to be honest. However, most of these hire freshers based on CLAT LLM results or some other tests.

These opportunities, to be honest, perhaps are not open to all. What is the alternative?

#2 You can still get into companies that do not normally hire freshers

Remember, they do not hire freshers because they do not want to train rookie lawyers. They are ready to pay higher to lawyers who are already trained.

What if you could show them that you already know the work that they need their lawyers to do? That you need no training for them?

That changes the equation in your favor. 

The best way to do this is to intern with them long term, and perform so well that they realize that you need no training! This is harder to pull off in just 15 days or 30 days of internship. 

So yes, long term internships would be the most useful tool in the bag of a law student who wants to get into an in-house legal team right out of college. 

#3 What should I learn in order to really impress the legal team with my performance during internships so that they would consider giving me a job?

There are 4 most important types of work that in-house counsels have to do – contracts, compliances, policy advocacy, and litigation.

Contract drafting is the top skill. A huge chunk of work that in-house counsels have to do involves either drafting, negotiating or enforcing contracts. Being good at contract drafting and negotiation ensures that you are very useful in an in-house legal team.

Compliance is another critical area of work. Having good knowledge of statutory compliances will make you an attractive hire for in-house legal departments. If you heard from a lawyer that doing CS helps in getting an in-house legal team job in a company, that is because CS is all about compliances. It is not necessary to do CS to learn about compliances, and it is a fairly easy skill to pick up.

Click Above

Policy advocacy is increasingly becoming an important area of work for top-level in-house lawyers. You have to engage with the government, politicians, and bureaucrats and put across policy positions that would be important for your company, and also persuade them to not implement or change policies that may hurt the future of your business.  

Not all companies have policy work for in-house teams. However, in tech companies and certain other industries which are highly regulated, such as tobacco, alcohol, transport, insurance policy work is critical.

Litigation is the other major area of work for in-house lawyers. While they cannot appear before court themselves, they often manage litigation in different courts and instruct the litigators. They may draft documents, strategize with inputs from outside counsels and make critical strategic decisions. 

Sometimes in-house lawyers may be hired for a specific skill or kind of work too, such as acquisitions, or negotiating loan transactions, handling consumer litigation, labor and employment law or recovering money through the IBC.

While creating our course called Business Law for In-house Counsels, we researched extensively on what are the laws and skills that are more sought after amongst generalist in-house lawyers. If you check out the syllabus by scrolling down, you can access what we found to be the most relevant skills that give an edge to in-house counsels in their day-to-day work.

#4 It is very easy to get a job in startups and SMEs

While you are a law student or a very young lawyer, I recommend that you try working with small startups and SMEs with 10-30 employees. Most of them do not have a legal team but enough legal work for you to get started. 

They find lawyers expensive and will be willing to take a chance on letting you work. You can offer to work or intern for free for a while, and begin to help them out with contracts and compliances. 

As you begin to add value, they will see how your work is really useful for them, and that would lead to you getting a job or retainership offer. If nothing else, you will get very valuable experience as well as build a network of professional connections that would go a long way in giving a boost to your career.

#5 What can I do to get a job in companies like Google or Uber?

It is important to build up your profile over a period of time. It may be very hard to get a job in a big company right at the beginning. There are after all only a handful of positions, and if it is harder to get a job in a top law firm which has hundreds of open positions in a year, imagine how much harder it would be to get through an in-house legal team that has only 10 or less open positions in a year!

The key is to create a strong profile over the years, and have a strong network amongst the existing employees in those companies. 

You can start by working for small tech companies, and move to bigger and more premium tech companies based on your reputation for the good work you have done.

Writing articles, visibility on social media and the legal community, personal relationship with other lawyers – these things are all critical for your long term growth. 

You need to think and plan long term, not just what you are going to do for the very next job.

How can we help you to get your first in-house legal counsel job?

• Skill development: learn the practical skills that you need for doing in-house legal work successfully
• CV building – we will help you to make a great CV, especially as you will write and publish articles while doing our courses
• Job and internship support – we will help you to connect with potential internship and job opportunities and if you do good work in the course, we will even recommend you for suitable jobs
• Work resources – you will get access to a library of documents, templates, formats, checklists and how-to guides that would help you to outperform everyone else at work, ensuring you get the jobs and promotions you aim for

Here is the course we recommend for those who want to work as in-house counsels.

Here are some courses that you can consider enrolling into:

DIPLOMA 

Diploma in Business Laws for In House Counsels

Diploma in Companies Act, Corporate Governance and SEBI Regulations

EXECUTIVE CERTIFICATE COURSES

Certificate Course in Advanced Corporate Taxation

Certificate Course in Insolvency and Bankruptcy Code

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

Certificate Course in National Company Law Tribunal (NCLT) Litigation

Certificate Course in Arbitration: Strategy, Procedure and Drafting

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

The post Getting an in-house counsel job as a fresher appeared first on iPleaders.

This Article is written by Shruti Singh, 2nd-year Law intern from Hidayatullah National Law University, Raipur pursuing B.A.LLB (Hons.) Course. This article covers the provisions dealing with search, seizure and production of materials.

Introduction

If human rights are not embodied in the constitution and the law, or even if guarantees are not respected, no citizen would be safe, against tyranny and authoritarianism of the governmental actions. The principles of criminal justice also envisage the safeguards to person and personal liberty. Before the commencement of the Indian Constitution the administration of criminal justice was fully governed by the provisions of the Criminal Procedure Code,1973 and the Evidence Act, 1872. These are mainly concerned with the security of the state and public peace and not with individual liberty.

A police officer or any other authorised person carrying out a procedure such as search or seizure is supposed to know the rules and acts relating to it to work effectively and efficiently. These functions requires specialized knowledge of skill and procedure. Sometimes the officer might make mistakes while applying the rules and acts relating to search, seizure and production of materials which becomes fatal for the department’s case when it comes to judicial scrutiny.

Object of the topic

The objective of this topic is to cover all sections concerning search, seizure and production of materials. It highlights the various provisions which deals with evidence and its application under CrPC. It also discusses about the circumstances under which search warrant can be issued, its analysis, seizure and power to impound. It largely extends to comprehending the sections under the Criminal Code which provide for the procedures that are important to be complied with to make it legal. These are just the general provisions related to search and seizure, which needs to be necessarily followed in addition to specific orders or Acts provided.

Procurement of evidence from and for foreign investigating agencies

The term “Evidence” has been defined in Section 3 of the Indian Evidence Act, 1872 which includes in itself all the instruments by which relevant facts can be brought before the Court. Section 2 (h) CrPC has defined investigation as “Investigation includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorized by a Magistrate in this behalf” This involves all the proceedings for the collection of evidence by the police officers.

Section 166 A of CrPC provides that if in the course of investigation, the application made by the investigating officers of any superior rank on any evidence may be available in a place outside India, so in that case, any Criminal Court may issue a letter of request to a court or an authority in that country or place competent to deal with such request to examine orally any person supposed to be acquainted with the facts and circumstances of the case and to record his statement made in the course of such examination and also to require such person or any other person to produce any document or thing which may be in his possession pertaining to the case and to forward all the evidence so taken or collected or authenticated copies thereof or the thing so collected to the Court issuing such letter. It also says that the letter of request shall be transmitted as the Central Government may specify. The evidence includes every document or thing collected under sub-section (1).

Order or summons to produce a document or other things

Section 91 of CrPC provides for when can the summons/orders be issued to produce documents or other things. A court issues a summons and an officer in charge of a police station issues a written order. It is issued whenever any court or an officer in charge of a police station considers that the production of any document or other thing is essential or desirable for the purposes of investigation inquiry, trial or other proceedings under this code, such court or officer may issue a summons or order to the person in whose possession or power such document or thing is believed to be in possession. It requires him to attend and produce it at such time and place as stated in the summons or orders. Sub-section (2) of Section 91 provides that the person who is required to produce a document or thing under this section shall be deemed to have complied with all the requirements if he causes such things to be produced instead of physically attending it personally to produce the same. Sub-section (3) states that this section will not affect Section 123 (Evidence as to the affairs of state) and Section 124 (official communications) of the Indian Evidence Act, 1872 or the Bankers’ Books Evidence Act, 1891. It specifically does not apply to a letter, postcard, telegram or other document or any parcel or thing in the custody of the postal or telegraph authority. A person who appears in court, in regards to a summons under this section, does not become a witness and cannot be examined thereafter. This can be referred from the case Parmeshwari Devi vs. State and Anr(1976).

Search warrants

As per the law dictionary and as observed in different judicial decisions, the term ‘search’, in the simplest language, denotes an action of a government machinery to go, look through or examine carefully a place, area, person, object etc. in order to find anything concealed or for the purpose of discovering evidence of a crime. The search of a person or vehicle or premises etc., can only be carried out under proper and valid authority of law. It is also well established that search should have a nexus with the crime, it cannot be a random search. 

A search warrant is a written order which is issued by a Judge/ Magistrate or a Court to a police officer or any other person authorizing them to conduct a search of a person, location or vehicle for evidence of a crime and confiscate illegal evidence of a crime. The court in Kalinga Tubes Ltd. v. D. Suri and in many other cases has cautioned the police officer to use search warrant with a little precaution and care and do not abuse their power.

Section 165 of CrPC provides for the circumstances and the way in which search is carried out by a Police Officer. A police officer while making an investigation should have reasonable grounds for believing that something very necessary for the purpose of investigation into an offense which he is authorized to investigate may be found in any place within the local limits of the police station in which he is in charge. He is also required to make a record in writing specifying his grounds of belief and why the search was conducted within the limits of such station.

When the search warrant is issued?

In the following circumstances and conditions a search warrant is issued by a court:

1. Where a court has reason to believe that a person to whom summons or orders under Section 91 and a requisition under Section 92(1) is addressed will not produce the things or documents as required.[Section 93(1)(a)]
2. Where the thing or document in question is not known to the court to be in the possession of any person. [Section 93(1)(b)]
3. Where the court considers that the purposes of any inquiry,trial or other proceedings will be served by general search or inspection. 

In the following circumstances and conditions search warrant is issued by the Magistrate:

1. If a District Magistrate, Sub-divisional Magistrate or Magistrate of the first class gets any information and after inquiry of the same, thinks it necessary or has reason to believe that a place is being used for the deposit or sale of stolen property or for the deposit, sale or production of any objectionable article or any such objectionable article which is deposited in any place, he may authorize any police officer by way of a search warrant to enter, search or take in possession any property to which this section applies.(Section 94)
2. When any newspaper, book or document, wherever printed, contains any matter, the publication of which is punishable under section 124-A, 153-A, 153-B, 292, 293 or 295-A of Indian Penal Code, 1860, the State Government may, by notification stating the reasons for such action, declare every copy of such newspaper, book, or document, to be forfeited to the government. After such action, any Magistrate may, by a warrant, authorize any police officer not below the rank of a Sub-Inspector to enter upon and search for such copies in any premises where there is a sufficient reason for suspicion. (Section 95)
3. If any District Magistrate, Sub-divisional Magistrate or Magistrate of the first class has sufficient reason to believe that he can issue a search warrant to a person against a person who is kept under confinement for an offense, then he can direct the person to whom he issued a search warrant to search for the person so confined. Such a search will be made in accordance therewith,  and if found, the person shall be immediately taken before a Magistrate who will make such order as appears to be proper. (Section 97).
4. Power to compel restoration of abducted females – A Magistrate may upon a complaint made on oath of the abduction or unlawful detention of a woman, or of a female child under 18 years of age, for any unlawful purpose, make an order for the instant restoration of such woman to her liberty. It is also issued to such female child to her husband, parent, guardian, or other person having lawful charge of such child and can compel compliance with such order necessary by using sufficient force (Section 98).

Search of a place suspected

Section 94 of CrPC provides for the search of a place that is suspected to contain stolen property, forged documents etc. It states that a District Magistrate, Sub-divisional Magistrate or Magistrate of first-class may issue warrant to a police officer above the rank of a constable authorizing him to enter, search, take possession of any property, convey any article or to take into custody upon information and inquiry as the Magistrate thinks necessary or has reason to believe that any place is used for deposit or sale of stolen property, or for the deposit or sale of stolen property or for the deposit, sale or production of any objectionable article to which this section applies. The objectionable articles as mentioned in this subsection (2) are counterfeit coin, pieces of metal made in contravention of Metal Tokens Act,1889, counterfeit currency or stamps, forged documents, false seals, obscene seals or objects referred to in Section 292 of IPC, 1860 and instruments or materials used for the production of any of the article mentioned above.

Search for persons wrongfully confined

There is a provision under Section 97 of the Code of Criminal Procedure, 1973 which provides for direction in case of search of persons wrongfully confined. It states that a District Magistrate, Sub-divisional Magistrate or Magistrate of first-class has enough reason to believe that a person who is confined under such circumstances that the confinement amounts to an offense, he may issue a search warrant, and the person to whom such a search warrant is issued may be directed to search the person so confined. And such search shall be made in accordance therewith, and the person on being found shall be instantly taken before a Magistrate and he shall make such order as in the circumstances of the case seems proper.

Power to compel restoration of abducted females

Section 98 states that where a woman or a female child under 18 years of age has been abducted or unlawfully detained for an unlawful purpose, the Magistrate may restore the woman to her liberty or the female child to her proper custody. A sufficient amount of force is allowed for compliance with this section.

Power to declare a publication forfeited

The power to declare certain publications forfeited and to issue search warrants for the same is mentioned under Section 95. It provides that where any newspaper, book or any document wherever printed contains any matter, the publication of which is punishable under section 124-A, 153-A, 153-B, 292, 293 or 295-A of Indian Penal Code, 1860, the State Government may, by notification stating the reasons for such action, declare every copy of such newspaper, book, or document, to be forfeited to the government. After such action, any Magistrate may, by a warrant, authorize any police officer not below the rank of a Sub-Inspector to enter upon and search for such copies in any premises where there is a sufficient reason for suspicion. The meaning of the newspaper, book, and document is contained in its explanation clause.

Constitutional validity of search warrants

The entire procedure specified in the Code of criminal procedure, 1973 is based on the principle of justice and fairness. One of the basic principles of legal jurisprudence is that a person accused of any offence should be given an equal chance to be heard and to defend himself. It is compatible with this theory only that there are provisions in Code of Criminal Procedure, 1973 (CrPC) related to the issue of process, provisions in section 161(3), provision in section 162 of the code that any statement recorded during the course of investigation, shall not be signed by the person making the statement, has been specified.

Similarly, upholding a similar proposition, the protection against self-incrimination has been provided as a special fundamental right, under Part III [Under Article 20(3)] of the Constitution of India. It provides that no person who is accused of an offence can be compelled to be a witness against himself.

In several cases, the constitutional validity of search warrant has been questioned. For instance, in the case of V. S. Kuttan Pillai v. Ramakrishnan, wherein it was opined by the court that a search of the premises occupied by the accused does not amount to compulsion on him to give evidence against himself and hence was not violative of Article 20(3) of the Constitution of India.

Search of a place without warrant

Section 165 prescribes procedure undertaken by a police officer to search a place without a warrant. It states that whenever an officer in charge of a police station or any police officer making an investigation has reasonable grounds to believe that in the process of investigation, there are some things necessary for an offence, which he is authorised to investigate within the local limits of his police station without unnecessary delay, can search even without a search warrant. He is also required to specify the reason for such a search, cause of search, etc. Section 165(3) provides that where a police officer is unable to conduct the search in person, and there is no other person competent to carry out the search at the time, then he may after recording in writing his reasons for so doing, require any officer subordinate to him to make the search. The senior authorizing for the same has to give the subordinate officer an order in writing, specifying the place of search, the reason for which the search is made and subsequent to this the subordinate may thereupon search for such thing in such place. The copies made by the police officer undertaking search shall be sent to the nearest Magistrate empowered to take cognizance of the offense. On the application of the owner or occupier of the place searched shall be furnished, free of cost with a copy of the same by the Magistrate.

Search by a police officer during the investigation

The procedure adopted by a police officer during the search in an investigation is provided in Section 165. Section 165(1) provides that whenever an officer in charge of a police station or a police officer making an investigation in a particular matter has reasonable grounds for believing that anything necessary for the investigation into any offense on which he is authorized to investigate may be found in any place within his local limits and that thing according to him be otherwise obtained without unnecessary delay. Such officer may record the grounds of his belief in writing and prescribing in such writing the thing for which the search is made, or cause a search to be made with the local limits of his station. Section 165(2) authorize the police officer to conduct the search in person. Section 165(3) states that if he is unable to conduct the search in person, he may after recording in writing the reason for so doing authorize a person subordinate to him to conduct search. Section 165(4) says that all the general conditions regarding the search warrant will be applied to this section as contained in Section 100. Section 165(5) provides that copies of the record made in sub-section (1) and (2)  should be sent to the Magistrate who is empowered to take cognizance of the offence. The owner or occupier of the premises can also, on the application, be provided with a copy of the same that is present with the Magistrate, without any cost.

Search In the presence of magistrates

Section 103 of CrPC states that the Magistrate may direct search in his presence. It provides that any magistrate may order a search to be made in his presence of any place in which he is legally competent to issue a search warrant.

Search in the limits of another police station

Section 166 provides the conditions under which the search is conducted in the limits of another police station. Sub-section(1) states that an officer in charge of a police station or a police officer not below the rank of sub-inspector making an investigation may if he requires an officer of another police station whether in the same or different district to cause a search to be made in any place within the limits of the former officer’s jurisdiction. Sub-section(2) the officer shall now carry out the search according to the provisions of Section 165 and forward the thing found on such search to the police officer at whose request the search is made. Sub-section (3) permits an investigating officer who belongs to one police station to search any place that belongs to the limits of another’s police station in certain emergency situations. The one that has been expressly mentioned is when there is a possibility of delay in requisitioning the services of police personnel of another police station and if such delay can destroy the very purpose of the search. Sub-section (4) says that the officer in charge of conducting the search has to send a notice of search to the officer within whose local jurisdiction such place is situated and shall also send a copy of the notice to the nearest Magistrate. Sub-section (5) says that on the application of the owner of the premises of the place searched, he shall be provided a free copy of the said notice that was sent to the Magistrate.

Search for false weights and measures

Section 153 provides for the inspection of weights and measures. This section authorizes a police officer in charge of a police station to enter any place within the limits of such station for the purpose of inspecting or searching for any weights or measures or instruments for weighing, used or kept there without a warrant. The police officer must have a valid reason to believe that there are presence of false weights, measures or instruments in that place. It also provides that if he finds such weights, measures or instruments to be false, he has the option of seizing them or give information of such seizure to the Magistrate within the jurisdiction.

Analysis of the general provision of search

Section 99, Section 100 and Section 101 contains the general provisions which are necessary while carrying out the process of search. Section 100 primarily provides for the provision relating to searches. This section provides the right of free ingress in the case of closed premises on demand and on the production of the search warrant by the police officer. It also ensures that searches are conducted fairly and squarely. 

Sub-section (1) provides that whenever any place which is liable to search of inspection is closed, any person who is residing in, or being in charge of on-demand of the officer or other person executing the warrant may allow him to free ingress(enter upon) into and afford all reasonable facilities for a search therein.

Sub-section (2) provides that if ingress to such place can’t be obtained, then the officer may proceed in the manner provided in Section 47(2) which provides for breaking a door or window. 

Sub-section (3) provides that where a person is suspected of concealing about his person any article for which the search should be made can be searched. Where the search is made of a female then it will be carried out by another female with strict regard to decency.

Sub-section (4) mandates that the police officer is required to call two or more independent and respectable inhabitants of the locality in which the place to be searched is situated. If he cannot find any such person or no such inhabitant of the locality is available then a person from the other locality available or is willing can also be called upon to be a witness to such search.

Sub-section (5) requires a police officer to keep a record in writing the things seized on the search and of the places in which they are respectively found, in the presence of the witnesses. The witnesses who are present at the time of search under this section are not required to attend the court as a witness of the search unless specially summoned by it.

Sub-section (6) states that the occupier whose place is searched or any other person on his behalf has every right to attend the search and also be delivered a copy of the list prepared during the search which is duly signed by the witnesses.

Sub-section (7) provides that the person who is searched under sub-section (3) shall be entitled to get the copy that contains the list of all things taken in possession of at the time of the search.

Sub-section (8) states that a person who without reasonable cause refuses or neglects to attend and witness a search when called upon to do so by an order in writing delivered or tendered to him shall be deemed to have committed an offence under Section 187 of the Indian Penal Code. 

Section 101 prescribes for disposal of things found in search beyond the jurisdiction of the court. When in the execution of a search warrant at any place beyond the jurisdiction of the court which issued the warrant, the things found in such search shall immediately be taken before the court issuing the warrant, unless such place is nearer to the Magistrate having jurisdiction than to such court, in which case the list and things and shall be taken to the Magistrate unless there is a good cause to the contrary, such Magistrate shall make an order authorizing them to be taken to such court.

Consequences of non-compliance with the provisions relating to searches

There are different sections in the Code which prescribes for the effects when the provisions relating to searches are not complied with.

Section 460 of CrPC prescribes that if a search warrant is issued under Section 94 by a Magistrate who is not empowered by law to issue such warrant will not vitiate(destroy or impair) the proceedings. A search warrant for the search of a place that is suspected to contain stolen property, forged documents, etc can only be issued by a District Magistrate, Sub-divisional Magistrate or Magistrate of the first class. But, if a situation arises that the warrant is issued by a person other than a Magistrate though erroneously, but in good faith, then the warrant will not become ineffective just because the Magistrate was not empowered to issue such a warrant.

Section 461 also provides for irregularities which can vitiate the proceedings. It says that under Section 93(3) only a District Magistrate or a Chief Judicial Magistrate can issue a warrant for a document, parcel or another thing in the custody of postal or telegraph authority. According to Section 461 if a Magistrate who is not empowered by law to issue such a warrant, issues the same, will make the warrant ineffective.

A Magistrate, not empowered by law, issues a search warrant in case of wrongful confinement under Section 97, then the warrant will become illegal and any entry into such place subsequent to such illegal warrant shall be considered to be without legal authority.

Magistrates not empowered to issue a search warrant

Section 460 states the circumstances in which a search warrant is not vitiated even when it is issued by a Magistrate who has no authority to do so. A search warrant for the search of a place that is suspected to contain stolen property, forged documents, etc can only be issued by a District Magistrate, Sub-divisional Magistrate or a Magistrate of the first class. But, if a situation arises that the warrant is issued by a person other than a Magistrate though erroneously, but in good faith, then the warrant will not become ineffective just because the Magistrate was not empowered to issue such a warrant.

Section 461 of CrPC clearly provides for conditions in which a search warrant will be illegal when a Magistrate who is not empowered issues a warrant. It says that under Section 93(3) only a District Magistrate or a Chief Judicial Magistrate can issue a warrant for a document, parcel or another thing in the custody of postal or telegraph authority. According to Section 461 if a Magistrate who is not empowered by law to issue such a warrant, issues the same, will make the warrant ineffective.

Search without warrant by police officers not authorized

It has been comprehended from various sections like Section 153, 165 and 166, that a place can be searched by a police officer of a certain rank or any other person authorized by law without a warrant. A search by any other police officer or any other person would be illegal and the sentry into such place will also be unlawful. Even a search by a police officer outside the limits of his police station and in the situations where he is not authorized to do so would be without legal authority and illegal. [Section 166(3)]. Section 165 of the CrPC provides for an exception to this, which states that where there is reasonable ground for if the search is not conducted immediately, then the valuable evidence and facts will be destroyed then in such cases, he may straight away search, after sending advance intimation to the court. It has been comprehended from various sections like Section 153, 165 and 166, that a place can be searched by a police officer of a certain rank or any other person authorized by law without a warrant. A search by any other police officer or any other person would be illegal and the sentry into such place will also be unlawful. Even a search by a police officer outside the limits of his police station and in the situations where he is not authorized to do so would be without legal authority and illegal [Section 166(3)]. Section 165 of the CrPC provides for an exception to this, which states that where there is reasonable ground for if the search is not conducted immediately, then the valuable evidence and facts will be destroyed then in such cases, he may straight away conduct the search, after sending advance intimation to the court.

Effect of contravention of the search procedure

Section 100 of CrPC provides general procedures that need to be necessarily followed at the time of the search. Besides this, Section 165 and Section 166 also provides for additional procedures to be followed, when the search is made by a police officer without a warrant. Contravention of these articles would make the search illegal or irregular. Whether the contravention would vitiate the proceedings or not is provided in Section 460 and Section 461, discussed above.

Search with the consent of the occupant

If the entry into the place of search is with the consent of the occupant of such place, then the search and recovery will not be affected on the ground that the search procedure mentioned under Section 100 and Section 165 was not followed. In addition to this, where it is proved that the articles were produced by the accused himself, Section 165 of CrPC does not apply.

Seizure

The act of seizing is well known as a seizure. It is an action coupled with force in which an object or person is suddenly taken over, grabbed, removed, or overwhelmed.

Search and seizure is also an essential stage in the process of effective investigation. There are two methods in which police can affect search and seizure. One under a warrant which is issued under any of the provisions of Sections 93, 94, 95, and 97 and the other is without a warrant under any of the provisions of Sections 103, 165 and 166 of CrPC.the basic provisions as to search and seizure are laid down in Section 100 of CrPC. The procedure set out in the section is generally followed in offenses committed under the Indian Penal Code as well as in special and local laws with a little variance. Thus, in all situations of search and seizure, the investigating police should follow the procedures laid down under Sections 100 and 165 CrPC. Section 102 provides the power of police officers to seize certain property.

The police may have to effect search and seizure in one or more places. One at the scene of the crime and the other at places where the persons involved in crime are hiding and places where the incriminating articles to crime are kept or concealed. 

As soon as a crime is committed at a place, the police officer arrives at the scene of the crime and as a golden rule he should not alter with the position of the crime scene, pick up or even touch anything without being properly described in an official note and photographed. 

It is his duty to ensure that there is no interference with the crime scene. He shall also not allow an unauthorized person to meddle in the inspection of the scene. He has to make sure that there is not much crowd at the place of the scene as there may be a possibility of distortion of evidence or clues. He should inquire about the person who came first to the place. He should not leave the process of investigation solely on his subordinates, especially those who are untrained. These are some of the precautions that a police officer has to take care of while carrying out the process of search and investigation. Like the above procedures, many are established in the Code of Criminal Procedure which is discussed later in this article.

For the purpose of any investigation, inquiry or trial, the production of things and documents is necessary, in respect of which search and seizure of property are affected. It is a general rule that the freedom and liberty of private citizens should not be sacrificed unless it becomes necessary in the larger interests of the section of the society for the purpose of investigation, inquiry and trial. 

Usually, an “Investigation” is conducted by a police officer or by any other authorized person (other than a magistrate). It includes all the proceedings under the criminal procedure code for the collection of evidence. “Inquiry” means an act asking for information conducted by a Magistrate or a court and it does not include trial. “Trial” is not defined anywhere in the Code. Basically, it means that the judicial process where the question of guilt or innocence of the person accused of any offense is determined.

During investigation, inquiry or trial, adequate care has to be taken to provide protection against possible abuse of powers by the people on the society in general. The main processes for the production of things and documents are as follows:

1. summons that is issued by a court;
2. A written order issued by a police officer in charge of a police station; and
3. Search and seizure with or without a warrant.

The procedure to be followed at the time of seizure is the same that is to be followed in case of a search under Section 100 of CrPC. Section 102 authorises a police officer to seize certain property. Sub-section (1) empowers a police officer to seize any property which is alleged or suspected to have been stolen or which is found in such circumstances that it may create suspicion of commission of an offence. Sub-section (2) states that a subordinate, who works under a police officer in charge of a police station, shall report the seizure to that officer. Sub-section (3) provides that every police officer exercising his duty under sub-section (1) is required to report the seizure to the nearest Magistrate falling within his jurisdiction and in case the property seized is such that it cannot be taken to the court, he may give custody of that property to any person after executing a bond undertaking to produce the property before the court as and when is required so as to give effect to the further orders of the court regarding its disposal.

Power to impound

The meaning of the word impound is to seize and take legal custody of (something, especially a vehicle, goods, or documents) because of an infringement of law.

Section 104 empowers the courts to impound any document or thing produced before it under the code, if it may think it to be fit.

Disposal of things found in search beyond the jurisdiction

Section 101 of CrPC provides for the disposal of things found in search beyond jurisdiction. It states that when some things are found by the court which is outside the local jurisdiction, but which is authorized to search shall be immediately taken before the court issuing the warrant unless such place is nearer to the Magistrate having jurisdiction therein than to such court, in which case the list and things shall be immediately taken before such Magistrate and unless there is a good cause to the contrary, such magistrate shall make an order authorizing them to be taken to court.

Conclusion

The Code of Criminal Procedure lays down the general rules that need to be followed in case of search, seizure and production of materials. Apart from these provisions, there are specific Acts and laws in case of search in special circumstances like CBI(Central Bureau Of Investigation) carries out its search according to the provisions laid down for its officers in the CBI manual. The police officer and the Magistrate need to be careful while carrying out search and seizure of persons or property. The search should be according to the laws if it is not then the search may be unlawful which can result in the release of a searched person or seized property. But there may arise many problems in regard to these procedures also as the reality is far more real as laid down in books. The system of India is quite corrupted which also results in a faulty investigation on the part of the police. The faulty police investigation system also includes medico-legal officers with little significance, according to legal and security experts. Medico-legal officers are essential to the judicial system as their findings or reports are the basis for investigations into criminal cases, but they work in total reliance on the police instead of conducting their official duty with independence and free of external pressures.

References

• https://blog.ipleaders.in/cbi-search-seizure/
• https://blog.ipleaders.in/can-police-search-house-office-without-warrant-india/
• https://indiankanoon.org/doc/956192/
• https://indiankanoon.org/doc/1319177/
• https://indiankanoon.org/doc/627930/

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

The post Search, Seizure and Production of Materials Under Criminal Law appeared first on iPleaders.

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

Are you a law firm lawyer or litigator looking to shift into an in-house role? It is a great idea. This is a line of work that has gained a lot of prominence and is an in-demand choice for young lawyers.

Law firms have not remained as attractive as they used to be, as the horror stories of long nights at work, cruel partners, boiler room situations on a daily basis and difficult work conditions have made it less attractive for millennial lawyers. There are plenty of young lawyers who still dream of making it as a partner in a big law firm, but there are a bunch of alternatives now that everyone is forced to seriously consider.

In-house legal jobs are one of them.

Who are the sought after candidates for in-house legal jobs?

In-house legal teams are fairly specific about the kind of people they want to hire. 

Their top priority is to hire lawyers with extensive and varied experience of working in other in-house legal teams. They also love to hire lawyers from big law firms and occasionally hire litigators to handle their own litigation work.

In-house legal teams are happy to pay well for experience and expertise because the salary payment usually pales in comparison to what law firms and top lawyers charge. Hiring good people in-house usually leads to savings for the company.

Therefore, if you have a proven track record, and appear to be highly competent, you can command a premium from an in-house legal team. Also, it is harder to get hired into these positions. They are looking for the perfect fit, unlike a law firm that may be more willing to experiment at the entry-level positions. 

There are two kinds of in-house legal teams, and one of them is more like a captive LPO

There are some in-house legal teams which do mass recruitment – such as insurance companies that may hire an internal team to process insurance claims or a consumer conglomerate that may hire a team of low paid lawyers to handle a rising number of consumer complaints across India. 

Banks and finance companies often hire a large team of lawyers to process a large number of documents at a rapid pace, and these teams are more structured like LPOs than anything else. 

This is also true for large IT companies too – they have separate legal teams that do high-level legal work, are paid more and a separate captive LPO type structure which does low skill repetitive work for a lower salary. Contract management roles often fall in this category.

Even law firms have begun to adopt this same strategy. Some top law firms like AZB have transaction support teams that are 40-50 strong, which basically provide secretarial and DD support for large transactions. These lawyers are paid far lesser than normal associates.

So watch out, if you are joining a real in-house legal team that does cutting edge legal work or a captive LPO that almost certainly masquerades as an in-house legal team.

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The problem with joining these teams that do mass recruitment and low-skill repetitive work is that you may find it hard to get well-paid jobs when you try to shift to a different job in the future, and the quality of your experience may be doubted by future recruiters.

However, most of these jobs still pay better than working with litigators and hence many people are happy to take up these jobs. And while it is trickier to find a job in full-fledged legal teams after this stint, it is not impossible. You just need to build up your profile and skills on the side so that you become an attractive hire. Let us know if you need help.

I am just saying you should know what job you are getting and not walk in blind.

Specialization v. general expertise

In-house counsels often need to be specialized generalists. They have to handle anything that the business may throw at them, and it is hard to predict what that could be as a business grows big. An in-house counsel may handle competition law raid and defend a patent infringement suit on the same day while coming up with a new ESOP policy for the organization. 

They need to advise the board on corporate governance and future acquisitions with equal elan and also answer questions about criminal liability arising out of a cheque bounce allegation or GST goof up. 

In fact, knowing the law of one single country is rarely sufficient. You may have to negotiate contracts that have to be enforceable in a different jurisdiction or comply with the local laws of a city you have never even heard of before because your sales guys landed a big client there. You may have to comply with anti-bribery or data protection laws in 12 different countries because you have investors there or just a handful of clients.

And you need to also draft and negotiate agreements like a champion, apart from managing litigations in different courts, where the local litigators are not particularly cooperative.

And it is your job to ensure that things do not fall through the cracks!

Many would say that it is far easier to work in a law firm in a team that has a single-minded focus on one practice area only. It takes a very different bend of mind to deal with this kind of mind-boggling complexity that every in-house lawyer is expected to handle.

This is why, when it comes to training in-house counsels on business laws, we have a separate course altogether. Check out the 16 modules we think are most critical for them.

When you appear in an interview for an in-house position, try to showcase your knowledge and experience in a diverse cross-section of law, rather than focussing on a specialization, unless you have been told that they are looking for someone for a specialized role only. 

How to find and attract the best opportunities

In-house legal teams get to work with a lot of different lawyers. They work with law firm lawyers, as well as litigators. They also interact with other in-house counsels across the table all the time.

And that is why, when they need to recruit a lawyer, they have people on their mind, and putting out an ad is rarely necessary.

The best and most coveted in-house legal jobs are offered to people the company already has worked with and admire. Companies may hire senior associates and partners they have already worked with. They may hire litigators they found to be diligent, brilliant and easy to work with.

Hence, that should be your top priority. Impress your best clients, build deep, friendly and mutually beneficial relationships and be the kind of lawyer they would want on their team.

If nothing else, you need people who can vouch for you and recommend you based on the work you have done for them.

In my estimation, 80-90% of in-house legal recruitments happen based on recommendations and past relationships. 

Yes, there are at times jobs advertised through websites and recruiters as well. No harm in trying for them either, but first see if you have someone who can give a strong recommendation for you.

Note that we recommend our best students and alumni, especially when we are familiar with their work and ethics, to recruiters and other students and alumni who seek our help. Recommendations and introductions always go a long way. 

How to prepare for the interview

There are two parts. Research the company. What kind of business do they do? What is the business model? How do they make money? What are the risk areas? What are the weaknesses? What legal problems did their competitors face? 

Based on that research, you will be able to narrow down on their legal priorities. Will they bother about data protection or more about policy liaison with the government about fintech regulations? 

Have they been acquiring many startups in the last few months? Have they heavily invested in blockchain or AI companies?

Do they have lots of litigations going on? Are they worried about pending recoveries? Do they have to sign multi-jurisdiction contracts with a lot of exposure to currency fluctuation?

The more you know, the more you will prepare yourself for the legal questions that would come your way.

The other obvious thing is to make sure you can answer any questions about the work you have done in the past and mentioned in your CV. In fact, your CV should be tailored after doing the analysis I described above, so you can show them on the CV itself that your experience so far is highly relevant to their current needs.

How can we help you?

• There are 3 skills that you need to be very strong with: contracts, compliances, and litigation management. If any of these areas are weak for you, let us help you. Call us and we will tell you exactly how and what courses you need. 
• You may have very good knowledge of one area of law and not be so good with a bunch of other things. This is not good for in-house roles. Let us get you up to speed on what you need to know through the 16 diverse modules of this course. It is tailormade for that purpose.
• We have lots of free sessions on how to create a better CV, how to prepare for interviews, how to network, how to make your brand as a lawyer stronger and a bunch of other training sessions. For instance, here is a session when we talked about cyber law, technology law and career opportunities. By joining our courses, you get access to hundreds of such sessions, recorded as well as fresh new ones. 
• You can get mentorship and support in your job hunt. You will get notified of opportunities that are relevant for you, and develop a professional network that includes other in-house counsels either teaching for us or studying in various courses. 

There are many other benefits. Let us discuss over a call and help you out. We can talk about how we can specifically help in your situation. Feel free to comment below and request a callback. 

Also, feel free to sign up on the waiting list for Master Access, Corporate Law Library, and Litigation Library. 

Here are the courses you can enroll into before the year ends so you can begin your new year with new learnings and growth opportunities:

DIPLOMA 

Diploma in Business Laws for In House Counsels

Diploma in Companies Act, Corporate Governance and SEBI Regulations

EXECUTIVE CERTIFICATE COURSES

Certificate Course in Advanced Corporate Taxation

Certificate Course in Insolvency and Bankruptcy Code

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

Certificate Course in National Company Law Tribunal (NCLT) Litigation

Certificate Course in Arbitration: Strategy, Procedure and Drafting

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

The post How to land in-house counsel jobs: a guide for experienced lawyers appeared first on iPleaders.

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

Tears rolled down my eyes as I saw the ending of the movie called the School of Rock. I had last seen this movie fifteen years back, in 2004, when I was preparing for Class XII boards and law school entrance.

In the final scene, a band of 10-year old kids, led by their teacher, play at a rock competition and completely wow the crowds, which includes their parents. 

The crowd gives a standing ovation, and chants the band’s name, calling them to play another song. 

Their parents, who till that day preferred that their kids study and get good grades instead of pursuing their passion in music, applaud when they see their children’s virtuosity.

I cry because to me that scene signifies a victory of multiple sorts.

First, it is a victory for the protagonist, Jack Black, who was kicked out of his own band. He took the unconventional route and created a highly talented band of school kids, and managed a fantastic comeback. 

Second, it signifies a victory for the young members of the band, who could beat older and more experienced rock musicians in the local circuit.

Third, it signifies a victory for an innovative process. Jack Black innovated by involving a class of school kids in a rock band. The kids followed their passion and gave it everything, to perform even better than the older ‘pros’. 

For those of you who have not seen the movie, here’s a quick narrative. 

Jack Black, an aspiring but failed musician, lives with his friend, who also had ambitions as a musician, but gave them up to become a teacher. Jack Black is unable to pay rent anymore, and his friend’s girlfriend has been urging him to get a job and pay rent or move out.  

In a moment of desperation and serendipity, he takes a phone call on behalf of his friend, represents himself to be his friend and lands a temporary job as a school teacher in a primary school. 

He has no skills as a teacher, and passes away time for a few days, until he accidentally witnesses the schoolkids at a music lesson. He is completely blown away by their ability. 

When they are back from their music lesson, he gives a few tunes to the kids to play on different instruments. Those who want to sing were asked to sing a line. 

They all do exceedingly well for his expectations, and in a moment of insight, he decides to form a rock band with those kids. This is the band that will participate in an upcoming rock competition. 

Other students in the class are also given key roles in connection with the work of the band. 

To enable them to transition from classical music to rock, he writes down a schedule for sensitization of the students to rock music.   

He works with them for about 3 weeks, not just on music, but on aspects such as lights, choosing a band name, band uniforms, etc. He even appoints one of the class kids as the band manager. 

With foresight and cooperation with students, he dodges scrutiny until the very end from the principal. 

Fast forward to the Battle of the Bands. This is the competition he wanted to win with his earlier band, but was kicked out, just three weeks before, when he started this job as a temporary schoolteacher. 

At the competition, this was of course the youngest band ever. Kids of ten years’ age played amazing rock music. They were more than a match to the best rock bands in the circuit on all fronts, whether it pertained to guitars, keyboards, vocals, drums or even the lights for a rock concert.

As I saw this, I realized how much I wanted to create something new and innovative and outside the conventional path, even back then. 

These kids and the rock band had accomplished what I wanted to do. This is what I wanted to create and I hadn’t realized!

And then I looked at the present, and saw how I had subconsciously worked on creating exactly that, without realizing that some of the seeds of inspiration were sown back then. 

Ramanuj and I started work on legal education in college and continued to work on it full-time with one year of experience at a corporate law firm. 

Today, there are over 40 of us working from various parts of India. Our mission is to make practical legal learning accessible, and to involve the best experts in the teaching process.

For a young law student, quitting after a year of working in a law firm may sound like one has all the experience to venture out and face the world. But one does not.

In law, one year is barely anything. We did not have 20 years of experience, we were not even senior associates in a law firm. 

One of our juniors who had worked with us in our initial days shared that after completing 1 year at a law firm, she did not have an idea about how to start on her own, even though she would like to. At that time, she had completed working for 3 years at one of the top corporate law firms.  

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When I quit, my seniors at the law firm expressed concern at how I would manage to run a business on my own without supervision. They had seen and reviewed my initial drafts, and would have known how much I still had to grow if I chose to remain in a law firm.

Guess what? 

It does not matter, because the point is to start following your purpose despite any self-limiting beliefs you have. 

You will figure out the rest on the way.

It does not matter if you are the youngest, the junior-most or the least experienced. 

At LawSikho, we have a long way to go, but here’s what we believe in – 

You don’t need years of experience in a law firm before you start your own venture or your own practice. 

You don’t need to struggle in litigation without having any idea as to how or when you will learn the skills and have a flourishing clientele. 

You can build a thriving litigation practice from the day that you graduate, or as a young lawyer.

All it takes is training to acquire the skills, putting in efforts earlier than others so that you move ahead, sharing and publishing your work and building a network. 

This is not the work to be done when you become a partner or a senior advocate – this is the work to be done from day one, on the path to the journey. 

We had to do this work from the day we started. We started learning how to hire, how to train a team, how to build process, and so on. 

We are still learning on all of these fronts, but our efforts led us in an interesting direction. We were able to expand our team and operations and move forward through tough times. 

One of the aspects that have been incredibly useful for us are the training programs we pursued. We explored a variety of training and mentorship programs, ranging from Landmark Forum, Startup Leadership Program, etc. I have been exploring programs at Mindvalley, and particularly found LifeBook (a course on designing a life vision with respect to twelve areas of one’s life) and Speak and Inspire (on communicating through story-telling) to be extremely powerful.  

These programs relate to personal growth, self-esteem, business growth, personal development, inspiring others, creating a vision, etc. 

In addition, we also have a business coach.

Most people wonder how I get the time to do all this. Is it a luxury? 

No, it is a necessity. 

Whenever I hit a wall at work or in personal life, I can count on these trainings to expand my thinking, develop my imagination and move forward. 

These training programs have been extremely useful to take action and move past self-limiting beliefs.  

However, many young lawyers, managers and students whom I speak to everyday are consumed by self-limiting beliefs. 

Why will a client give me work as a law student?

Why will a senior pay me money?

How can a young lawyer like me compete with the best law firms?

These are only some examples. 

While some people can identify that their beliefs are self-limiting, they do not have a way to conquer such beliefs. 

A self-limiting belief doesn’t go away unless you set a goal, and then take actions increase your skills and take action to move ahead. 

One of the actions you can take to increase your skills is pursuing a training program.

But first, you must set a goal, such as the following-

I will earn a stipend of INR 5000 every month by working part-time for senior lawyers.  

I will help two friends every month in drafting contracts. 

I will intern with a startup for 3 months and help them get their legal documents, contracts, compliance, etc. in order. I will continue assisting the startup on a part-time basis, alongside college. I will charge INR 5000 – 15000 as stipend. 

Once you set a goal, you can use a training program to acquire the necessary skills, move forward and conquer a self-limiting belief. 

As we transition into the New Year, I want you to think about how you can start early and conquer a self-limiting belief on the way?

Feel free to reach out to our team if you want to identify the training that can be used to attain your goals.

Here are some great courses you can use to pursue your journey:

DIPLOMA 

Diploma in Business Laws for In House Counsels

Diploma in Companies Act, Corporate Governance and SEBI Regulations

EXECUTIVE CERTIFICATE COURSES

Certificate Course in Advanced Corporate Taxation

Certificate Course in Insolvency and Bankruptcy Code

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

Certificate Course in National Company Law Tribunal (NCLT) Litigation

Certificate Course in Arbitration: Strategy, Procedure and Drafting

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

The post Age is No Bar When Law Meets School of Rock appeared first on iPleaders.

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 the Transfer of cases.

Introduction

The procedure to be mandatorily followed while pursuing a case is briefly dealt with under the Code of Criminal Procedure, 1973. Chapter XXXI of the Code contains the provisions related to the transfer of the criminal cases from Section 406 to 411. The main reason behind the incorporation of transfer of cases is that of delivering justice to people and to achieve the same, the provisions regarding the right to appeal is also provided. The overburden of pending cases and appeals results in delayed justice thus, it creates unrest in judicial processes. So to address this problem, certain provisions have been brought to transfer the criminal cases from one court to another. The right of appeal in the Supreme Court is available only in exceptional cases. As per the Code of Criminal Procedure, the original court of criminal appeal in the High Court.

Transfer of cases and appeals by SC

Section 406 of the Code of Criminal Procedure confers the power upon the Supreme Court to transfer cases and appeals. The Code grants the widest discretionary powers to the Supreme Court to transfer any case or appeal lying before the High Court to any other High Court of any state in the country in order to meet the ends of justice and fulfil the principle of natural justice. The application requesting the transfer of any case or appeal pending before the High Court can be moved to the Supreme Court by any of the following persons:

• Who is under the apprehension of unfair trial by the court; or
• Who is unable to find any proper justice being served to himself; or
• Attorney General or Advocate General of India.

The power granted by the Code under Section 406 to the Supreme Court is purely discretionary in nature and the applicant is under no obligation to conclusively establish that in case the transfer does not take place then fair justice will not take place and the applicant is only expected to reasonably substantiate the contentions made by him under the application he has submitted to the Supreme Court. The application under Section 406 of the Code is made by the interested party should always be in the form of motion supported by an affidavit or affirmation, except in the cases where the applicant is the advocate general or attorney general of the country.

The power of the Supreme Court to transfer the cases and appeals also extends to the transfer the cases from any subordinate court in the country where any matter is pending. However, the court where the case is pending can ensure that the Supreme Court, while transferring the case is taking all the measures to uphold fairness and principles of natural justice. The parties in any suit are always guaranteed the opportunity to bring to the notice of any court with appropriate jurisdiction that there are reasonable grounds which uphold the apprehension in the mind of the person that certain factors inhibit his right to a fair trial.

In Vishwanath Gupta v. State of Uttar Pradesh, the applicant filed an application for the transfer of a case on the contention that he was under the apprehension that he wouldn’t be able to engage a counsel in the court where a case against him was already pending in the case. However, the District Bar Association submitted an application assuring the court that a defence counsel from among the members of the Bar Association would be made available to the applicant. The Supreme Court held the application to be invalid dismissing the prayer for the transfer.

In Sukhdev Singh Sodhi vs The Chief Justice And Judges of The PEPSU High Court, the court held that the power of transferring of cases with the Supreme Court does not extend to transfer of any contempt proceeding which is pending before the High Court.

The power of transfer of cases and appeals is not only discretionary but is also limited as Section 406 does not clothe the Supreme Court with the power to transfer investigation pending before one police station to another for the only reason being the forwarding of FIR to the court. In cases where the Supreme Court is of the opinion that the application made is frivolous in nature and is devoid of any substantial claim then it may order the party which came up with the application to pay compensation of not more than one thousand rupees to the party which opposed such application.

In Kaushalya Devi v. Mool Raj, the Supreme Court held that in cases where the application of transfer of the case is made but the Magistrate dealing with the case opposes the application by himself filing an affidavit then the transfer of the case, without any doubt in the complete interest of justice because in all such cases the essentials of fair and impartial trial are already put to peril which is signified by the personal involvement of the judge himself.

Grounds for transfer of appeal and cases

• To uphold the spirit of justice: The ultimate goal of any judicial system on the earth is the deliverance of justice and protection of the rights of every person. The courts are highly revered institutions of justice with people having high expectations of justice which is sought after by the aggrieved party. Therefore, the court is under high moral obligations for keeping the machinery of justice, equity and good conscience alive.
• Recommendations made by the superior judicial officers: The courts while deciding whether to transfer the cases and appeals from one court to another takes into consideration the inquiries and findings as revealed by the reports carried on by the senior judicial officers such as Chief judicial magistrate or any sessions judge.
• Upon request by the trial court: Where the court before which the matter is pending deems the case to be outside its scope of jurisdiction due to involvement of a substantial question of law which is outside its purview. It may request the higher judiciary to transfer the case.
• Lack of complete jurisdiction: In certain cases, the court has limited jurisdiction over the subject matter of the case before it. In such cases of shared or limited juridical issues, the court trying the case has the liberty of transferring the case to the court which possesses the conclusive jurisdiction of trying the matter. This process ensures that complete justice has been done to the parties before the court.
• Differences between the party and the judicial officer: In circumstances where there is already a presence of differences between the judicial officer and any of the party the chances of an unfair and partial trial being carried out are relatively higher. Therefore, the party apprehending such consequences of carrying on of the trial is granted the opportunity by the judicial system to apply for transfer of the case.
• Infringement of principles of natural justice: Where the proof of continued contravention of the principles of natural justice by any court or judicial officer is rendered by a party to the Supreme Court, then in order to uphold the principles of natural justice, the court may order the transfer of the case.

The very purpose of Criminal law is the free and fair dispersal of justice which is not influenced by any extraneous considerations. Section 407 of the Code of Criminal Procedures enables the party to seek for transfer of case anywhere within the state while Section 406 of the Code enables the party to seek transfer of the case anywhere in the country.

Transfer of cases and appeals by HC

Section 407 of the Code of Criminal Procedure empowers the High Courts to transfer cases and appeals.

Circumstances in which HC may order the transfer of a case or appeal

The High Court has the authority to transfer the cases when it is satisfied that:

• The right to a fair and impartial trial which is guaranteed under Article 21 of the Indian Constitution can not be exercised by any of the party to the suit if the case is tried by any of the courts which is subordinate to it;
• Certain questions pertaining to the present matter in the court are of unusual difficulty;
• The transfer of the appeal or the case is made inevitable by any of the provisions under the Code;
• The order of transfer will be in the interest of the general convenience of the parties or witnesses involved in the suit.

Orders that the High Court can pass

The High Court on being satisfied with the presence of the above-mentioned grounds can order any of the following:

• The offence which is inquired into or tried by any Court subordinate to it be inquired by any other court which is inclusively under both  Section 177 and Section 185 of the Code is not qualified but is otherwise competent to inquire into or try offences like the ones which are in question;
• Where a particular case or appeal is pending before any criminal court which is subordinate to it to any other criminal court which is having equal or superior jurisdiction in comparison to the High Court;
• The particular case be laid down before the court of Sessions for hearing;
• The particular case or appeal be laid down before the High Court itself.

At whose instance the powers of transfer are exercised

The High Court exercises its power of transfer of cases at the following instances:

• When the lower court submits the report for transfer of an appeal or case to the High Court;
• Where the interested party lays before the High Court, an application requesting the transfer of a case or appeal;
• The High Court in its own discretion can transfer a case or appeal if it is satisfied with the fact that it would be in the best interest of the parties to the suit.

However, the High Court while transferring a case must be mindful of the fact that no application of transfer of the case from one criminal court to another is made in the same sessions division unless an application for the transfer of the case has been made to the sessions court and the same has been rejected by him.

Procedure to be followed

Subsection 3 to Subsection 5 of Section 407 of the Code of Criminal Procedure lays down the procedure which has to be followed by the person who is making the application for the transfer of appeals and cases by him.

• Subsection 3 of Section 407 of the Code provides that the application for the transfer of cases to the High Court by the applicant shall be made by motion which shall be supported by an affidavit or affirmation, except in the case where the applicant is the Advocate General of the State;
• Subsection 4 of Section 407 of the Code provides that where the application for the transfer of a case or an appeal is made by an accused person, the High Court has the authority to direct him to execute a bond with or without surety for the payment of any compensation which may be ordered to him by the court;
• Subsection 5 of Section 407 of the Code provides that every person who makes an application for the transfer shall give to the public prosecutor in writing, a notice to notify his intention for making such an application. The notice should be accompanied by the grounds on which the application is made. This Section also instructs the Courts not to make any order on the merits of the application so submitted by the person, unless at least a time period of twenty-four hours has elapsed between the making of such a notice and hearing of the application. 

Stay of proceeding to the subordinate court

Subsection 6 of Section 407 of the Code contains provisions relating to the stay of proceedings which are going on in any subordinate court. The provision states that where the application for the transfer of cases from any subordinate court is lying before the High Court. The High Court, may if it deems fit in the interest of justice, stay the proceedings in the subordinate court on such terms which it finds appropriate. However, if such an order is made by the High Court, it should not have any impact on the sessions court’s power to remand which is guaranteed to it by Section 309 of the Code.

Where the application is dismissed by the High Court

Subsection 7 of Section 407 of the Code contains provisions regarding the cases where the High Court dismisses the application made to it under subsection 2 of Section 407 of the Code. If the High Court finds that the application for the transfer of appeal or case was vexatious and frivolous, it may order the applicant to pay a compensation of an amount not exceeding one thousand rupees to any person who had opposed the application made by the applicant. The court in such cases decided the compensation keeping in view, the facts and circumstances of the case.

Saving

Subsection 9 of Section 407 of the Code is the saving clause and it provides that nothing contained under Section 407 of the Code shall have any effect on the orders which are passed by the Government of India under Section 197 of the Code which prevents the courts from taking cognizance of any case which involves the criminal charges against any public servant unless a previous sanction has been obtained by the court from the competent authorities.

Transfer of cases and appeals by the sessions judge

The Sessions judges are also conferred with the power to transfer cases and appeals by the Code under Section 408.

• Subsection 1 of Section 408 provides that whenever a Sessions Judge finds it expedient to transfer a case to meet the ends of justice. He has the authority of transferring such cases from one criminal court to another criminal court within his sessions division;
• Subsection 2 of Section 408 provides the instances on which the Sessions court can transfer the cases. The Section provides that the authority to transfer the cases with the Sessions Court can be exercised by it at the instance of the report in this regard submitted to it by the lower court, application in this regard submitted by the interested party or the court may exercise the power at its own discretion;
• The provisions under subsections (3), (4), (5), (6), (7) and (9) of section 407 shall be made applicable to the Sessions Judge while making any order in regards to the power vested on it by Subsection 1 of Section 408 in the same way as they are made applicable to the High Court while it exercises the provisions mentioned under subsection 1 of Section 407 of the Code.

Withdrawal of cases and appeals by Sessions Judges

Section 409 of the Code of Criminal Procedure contains provisions regarding the power of the Sessions Court to withdraw the cases and appeals.

• Subsection 1 of Section 409 provides that the Sessions Judge, not only has the power to withdraw any case or appeal but also has the power to recall any case or appeal which he had earlier transferred to any Additional Sessions Judge or Chief Judicial Magistrate who is subordinate to him;
• Subsection 2 of Section 409 provides that the power of recalling the cases by the Sessions Judge from any Additional Sessions Judge can be exercised by him at any time before the commencement of the trial of the case or hearing of the appeal before the court of Additional Sessions Judge;
• Subsection 3 of Section 409 provides the course of action which can be followed by the Sessions Court if it exercises the power vested on it by Subsection 1 and 2 of Section 409. Accordingly, after the recall of an appeal is made by the Sessions Judge, he may either try the case or hear the appeal on his own, or again transfer the case or the appeal to some other court in accordance with the provisions of the Code.

In Surendra Kumar vs Vijayan, the court held that the authority of transferring such cases from one criminal court to another criminal court within his sessions division conferred on the Sessions Judge by Section 408(1) of the Code is an independent judicial power and is not subject to any bar provided under Subsection 2 of Section 409.

Withdrawal of cases by Judicial Magistrates

Section 410 of the Code of Criminal Procedure contains provisions regarding the withdrawal of cases by Judicial Magistrate. According to the Section:

• Subsection 1 of Section 410 of the Code grants the powers to the Chief Judicial Magistrate to transfer any case from any Magistrate subordinate to him as well as the power to recall any case which he had earlier transferred to any Magistrate subordinate to him. When the Chief Judicial Magistrate recalls a case, he has the authority to himself hear and try such case or he may refer the case to any other Magistrate who is competent to hear and try the case;
• Any Judicial Magistrate has the authority to recall any case which he had transferred to any other Magistrate under Section 192 of the Code and may inquire into the case on his own.

Making over or withdrawal of cases by Executive Magistrates

Section 411 of the Code contains provisions about the withdrawal of cases by the Executive Magistrate. The Section provides that any District Magistrate or Sub-divisional Magistrate has the authority to:

• Withdraw any proceedings which started before the court to any Magistrate who is subordinate to it for the disposal of the case;
• Withdraw or recall any case which he had earlier transferred to any Magistrate subordinate to it and dispose of the proceedings of the case himself or refer the same for disposal to any other competent magistrate.

Conclusion

Transfer of cases does not alter the nature of the trial or relief which is provided to the parties to the suit. It is a mechanism ensuring the parties are rendered justice. The authority of transferring of criminal cases from one court to another is conferred upon Supreme Court, the High Court and the Sessions Court. However, the powers with each of the institute differ. If the party to the suit enforces their rights guaranteed to them under the Sections and it is found that the intention of the party is vexatious then the courts have the discretion of ordering compensation to be paid by such person to the person who has opposed it. The sum of compensation that the court may order differs from courts to courts. Cases can be recalled or withdrawn by the Sessions Judge, Judicial Magistrate and Executive Magistrate. The order made under these sections has to be recorded with the reasons for making these orders. There should be reasonable apprehension that justice would not be met by the court under jurisdiction then only the case can be transferred.

References

• https://blog.ipleaders.in/transfer-of-case/
• https://acadpubl.eu/hub/2018-120-5/3/234.pdf

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

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This article has been written by Lakshmi. V. Pillai of 5th year pursuing B.A. LL.B from GLS Law College, Ahmedabad. This article discusses the documents trail Order 11,12,13 and 19 of the Civil Procedure Code, 1908  in detail.

Introduction

One of the essential elements of the rule of law is its procedures. To run a fair trial, equal opportunities shall be given to both parties to access the documents related to the case. In the Civil Procedure Code, 1908, separate chapters are provided so that a fair trial is attainable by both the parties of the suit. After the plaint has been filed by the plaintiff and written statement by the defendant, if the parties feel that proper facts were not disclosed in the suit, either of them can ask for the documents to obtain proper facts of the case.

Before we go further, we need to understand that there are two types of facts:-

1. ‘Facto probanda’ – the facts which constitute a party’s case.
2. ‘Facto probantia’ – the facts which will be considered as evidence if proven.

Under the procedure of discovery, only Facto Probanda can be asked by the parties.

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Discovery – Order 11

Under Civil Procedure Code, 1908 discovery basically means a pre-trial procedural aspect wherein each party is given an opportunity to obtain evidence from the opposite party or parties. In other words, we can say that it is a formal process wherein the parties get a chance to exchange information regarding the witnesses and evidence which will be presented before the court during the trial.

The main purpose of discovery is to make the parties aware of the case, that means there shall not be any ambiguity between parties while the trial is going on. Both the parties shall be clear about the plaint made and issues thereby.

There are various types of discovery:-

1) interrogatories; 

2) requests for production of documents and inspection; 

3) requests for admissions; 

4) depositions; 

5) subpoenas duces tecum; 

6) physical and mental examinations.

Nature and scope

The scope of this section is basically determined by the extent of discovery which can be made by the party with the intervention of the court. The information which is obtained during the discovery is not needed to be admissible in court. As per the requirement, parties can obtain an order from the court for the discovery of required facts/ documents from the opposite party to understand the purpose of the case. Thereby, the scope or extensibility of applying this section depends upon the nature of the case and material which is asked by the other party. So it is the discretion of the court to decide whether the application is covered as per the scope provided to the section under the code or not.  

But there are certain limits to the extensibility of the discovery of the documents. If they are redundant or overly burdensome, they are not called for discovery.

Therefore, it is understood that this procedure is provided to compel the other party to produce documents on which they are relying on, other than the evidence. When such particulars regarding the case are asked through questions, then they are termed as interrogatories. And if the other party is requesting documents then it is the discovery of documents.

Interrogatories

Section 30 and Order XI Rule 1 to 11, 21 and 22 of CPC covers interrogatories. When, with the leave of the Court, parties administer a set of questions on the other party then it is called ‘Interrogatories’. Interrogatories shall be confined to the facts, it shall not be conclusions of law, construction of words or documents, or inference from facts. Under CPC, this is known as the ‘right to obtain information’ by the parties. The party to whom the set of questions were administered shall give reply to another party in writing and under oath. ‘Discovery of interrogatories’ means when the party, while giving answers to the interrogatories, discloses the nature of the case, with affidavit .  

As per the provisions of the code, any party in a suit can file an application to obtain an order from the court to ask interrogatories from the other party. So after filing the plaint, when the written statement is filed by the defendant and when the court sends summons to parties for the first hearing, if any party feels that there is a gap in the facts, then they can file an application under this section and ask order from the court.

Objective

The objective of the interrogatories are:-

1. To determine the nature of the case when it is not clear from the suit filed.
2. To make own case stronger by making the other party do admissions.
3. To destroy the case of the opponent.

Procedure

The willing party to deliver interrogatories shall apply for leave to the court and shall submit the proposed interrogatories to the court. As per Rule 2, the court shall decide the matter within 7 days of filing the application by the party. 

While deciding the matter the court shall take into consideration the following points:

• Any offer which may be sought by the party to be interrogated to deliver particulars;
• To make an admission; 
• To produce documents associated with the matters in question; or
• Any of them.

Further, the court shall consider whether it is necessary in a particular matter, to dispose of the suit fairly or for saving costs. After one set of interrogatories are served, the parties can not serve another set without the permission of the court. The set of questions shall be the ‘question of fact’ rather than the ‘question of law’. Interrogatories shall not be allowed at the premature stage of the case.

Within 10 days of the service, the affidavit to answer shall be filed by the party to whom the interrogatories were administered. If the party fails to comply with such order of the court:-

1. the suit will be dismissed if the party is the plaintiff; and
2. if he is the defendant, his defence can be struck off.

Who may administer interrogatories?

Any opposite party can apply for an order for allowing the party to deliver interrogatories to another party/ies in the suit. This means that the plaintiff can apply for an order from the court  to be administered to the defendant. The defendant can also do the same. In some cases, the plaintiff/ defendant can administer the interrogatories to the co-plaintiff/ co-defendant.  

Against whom interrogatories may be allowed?

As per Rule 5 of Order XI, any party to a suit which can be a:- 

(i) Corporation; or

(ii) Body of persons;

which may be incorporated or not incorporated; empowered by the law to sue or to be sued; on its own name or giving any other person responsibility to sue or any officer, against whom interrogatories can be filed.

If a body corporate is a party to the suit, then in interrogatories it shall be specifically mentioned that to which person or the officer the questions are to be served. 

Form of interrogatories

Interrogatories are filed as per the form provided in Appendix C Form No. 2 of CPC, with required variations as per requirement.

The reply to interrogatories is filed with an affidavit in the form provided in Appendix C Form No. 3 of CPC, with required variations as per need.  

Objections to interrogatories

Objections can be raised by the parties on the following grounds:-

1. Questions are scandalous;
2. Questions are irrelevant;
3. Questions are not exhibited bona fide;
4. Matters which are inquired into are not sufficiently material at this stage;
5. On the ground of privilege; or
6. Any other ground. 

Rules as to interrogatories

While replying to the interrogatories, if the opposite party does not give sufficient answer, or ignore to give an answer, then the party who administered the interrogatories can apply for an order from the Court for ordering the other party to reply sufficiently, or reply further as the case may be. The Court shall pass such an order to the other party after giving them sufficient opportunity to be heard. If the party who fails to reply is the plaintiff, then the suit can be dismissed for want of prosecution. If the party is the defendant, then it will be considered that the fact has not been defended.  

As per Rule 22 of Order XI, the opposite party can use the answers to the interrogatories as evidence, partly or in whole. But at the same time, the court shall check whether the part of the answer which has been considered as evidence by the party is connected to the whole answer, or is it adverse in nature.

As per Rule 6, the parties can object some of the interrogatories but not all. If the parties want to object to the interrogatories, then within seven days of service of such interrogatories, the party shall file the application of the opposition as per Rule 7 of the Order XI of the Code. 

At the same time as per Indian Evidence Act, 1872, if the parties refuse or object to produce any particular document or information in the court, then while using it as an evidence they shall inform the court and other parties. Without the consent of the court, such documents or information which were refused initially can not be used as evidence later, unless it is lawful to do so.

Interrogatories allowed

Interrogatories which are made to be related to “any matters in issue” can be questioned to another party. By “matter,” it means a question or an issue which is related to the dispute in the suit. It need not be an issue which arises from the dispute.

Interrogatories shall not be disallowed or discarded merely on the ground that there are other ways to prove the fact in question. Interrogatories are not the same as pleading. They need not be material facts on which party will be relying, they can be evidence by which parties want to establish a particular fact at the trial.

Interrogatories not allowed

Interrogatories are used when the facts laid down in the suit are not clear. However, under certain circumstances the discovery of the facts can not be applied if:-

1. it constitutes evidence of the opposite party;
2. it involves the disclosure of public information or interests; 
3. it contains any privileged or confidential information. 

Interrogatories which are in the nature of fishing or roving enquiries are not allowed. Questions in the nature of cross-examination shall not be asked. Questions of law are not permitted. Questions which are not bona fide or irrelevant to the case shall not be asked.

Setting aside and Striking off Interrogatories can be made on the following grounds (Rule 7):

• Unreasonably or vexatiously exhibited;
• Prolix, Oppressive, Unnecessary or Scandalous.

The Application for setting aside or striking off interrogatories shall be made within 7 days after service of interrogatories.

Cases 

In the case of Govind Narayan and Ors. vs. Nagendra Nagda and Ors., the Rajasthan High Court observed the importance of interrogatories and the time period in which it shall be filed by the party. The court held the following:

• Reading section 30 with Order XI Rule 1 of the Code, it makes clear that the courts have the discretion to allow service on interrogatories at any stage of the suit. The court confers wide discretion, at the same time the discretion shall be exercised judiciously. 
• The information asked under interrogatories shall have nexus with the dispute in question.
• The stage of the suit shall be significantly considered by the court. At the same time, it is to be understood that the main purpose of this procedure is to save time and cost by encompassing the issues or narrowing down the disputes.    

In a recent case of 2018, Samir Sen v Rita Ghosh, the petitioner filed an application under Order XI after five months of the closure of the plaintiff’s – respondent’s evidence in the trial court. Because of the delay, the lower court dismissed the application for which an appeal has been filed by the aggrieved. The Jharkhand High Court observed that as per the scheme laid down for the trials in the Order XIII CPC, it requires parties to produce their original documents as per their claim founded during the time of presentation of the plaint or filing of the written statement. And because of this, the interrogatories are given under Order XI of the Code. And held that the defendant failed to file the application on time, thereby the order of the trial court was right and the writ petition was dismissed.

Appeal and revision

There is no appeal allowed in the cases where an order for granting or rejecting prayer to administer interrogatories to the other parties pronounced by the trial court. The order which is granted or rejected under this provision is not considered as ‘decree’ and therefore, are not appealable.

The revision under this section is not encouraged normally by the High Courts. As per section 115,  the matter decided by the court is at the discretion of the court and said to be ‘case decided’. The High Court interferes only when the order is clearly illegal or wrong.

Discovery of documents

When the adversary party is simply compelled to disclose the documents which are under its possession or power, then that is called as the discovery of documents. The discovery of documents is covered under the Rule 12-14 Order XI of the code.

Who may seek discovery?

Any party to a suit under oath may apply for an order from the court for the discovery of documents which are related to the matter in question of the suit from the adversary party.

Against whom discovery may be ordered?

An appropriate court can order any party of the suit to dispose of the documents which are in its power or possession to the asking party. However, the party need to be related to the suit.  

Conditions

While the discovery of documents is being asked, two conditions need to be taken care of by the court:-

1. The discovery ordered is necessary for the fair disposal of the suit.
2. The discovery will save costs.

Objection against discovery

The party can raise an objection if the documents required to submit comes under the purview of the privileged documents. However, objecting by filing an affidavit would not be enough, the party who is objecting also needs to give proper reasoning behind such objection. The proper reasoning will enable the court to decide the objection raised by the party. It is open to the court to inspect the documents and check the viability of the objection raised by the party. Another objection which can be filed is that discovery is not necessary at this stage of the suit. 

Admissibility of document

The documents which are asked under the discovery of documents are not always admissible in court. The documents may be admissible in the case if they are relevant to the case and which may have some impact on the issues dealt under the case.   

In Gobinda Mohun v. Magneram Bangur & Co, it was held that:

“Rule 12 of Order 11 is considerably wider than Order 13, Rule 1 of the Code. The right to obtain discovery of an adversary’s documents is a very wide one and is not limited merely to those documents which may be held to be admissible in evidence when the suit is ultimately tried.

It is true that in a suitable case a defendant may object to the production of a document on the ground that it relates solely to his title, but if on the other hand, that document may have some bearing in support of the plaintiff’s title, such objection cannot be validly raised. If an order for discovery is made under  Rule 12 of Order 11 all the documents relating to the case should be embodied in the affidavit of documents by the person against whom the order for discovery is made. If however, the defendant considers that he is entitled to protection in respect of the production of any particular documents which may be entered in the affidavit under Order 11, Rule 13 of the Code, he will be at liberty to raise such objection at the proper stage of the proceedings if and when he is ordered to produce such documents under Order 11, Rule 14 or to give inspection of them under Order 11, Rule 18.

The Calcutta High Court sought to distinguish the Judgment of the A.P. High Court in P. Varalakshmamma v. P. Bala Subramanyam 1958 wherein it was held that:

It is lawful for the Court, under Order 11, Rule 14, Civil P.C., at any time during the pendency of any suit to order the production of a document. The words “at any time” are very significant and important. Rule 14 does not require that the order for production should be made only after an order of discovery is obtained under Order 11 Rule 12 C.P.C.”.

Documents disclosing evidence 

The document which is related to the evidence of the adverse party can not be ordered by the court. Such orders can be detrimental to the administered party which is restricted under the code. 

Affidavit  of documents

The documents under this rule are provided with the affidavit as under the Form No. 5 in Appendix C with required variations as per circumstances.

Privileged documents

Privileged documents are covered under “crown privilege” which is based on the doctrine of “public welfare is the highest law”. However, even if this doctrine is given the importance, it does not mean that justice shall not be paramount. Thereby when parties use it as an umbrella of defence, then under such circumstances, the court has the right to verify the admissibility of such defence. After checking the document, the court can decide on the matter. Mere assertion by the party will not be entertained or accepted by the court.

Oppressive discovery

While ordering the discovery of the documents it shall not be an oppressive order by the court. The court while using its discretion power shall consider two questions:

1. Whether it is important to order such discovery;
2. Whether it is impossible for the administered party to give the documents ordered under discovery.

Rules as to discovery

The general rules for the discovery of the documents are as follows:

1. Any party can get an order from the court for the discovery of the documents or for inspection of documents. 
2. It is the discretion of the court to pass such an order.
3. The court can use its power any time during the suit, either suo moto or by the application of the party.
4. The court shall not pass an order for the discovery, inspection or production until the written statement has been filed by the defendant.
5. No such order shall be passed if the application is made by the defendant until he has not filed a written statement.
6. Discovery of the document shall not be made if the court is not of the opinion that this order will lead to fair disposal of the suit or useful for saving cost.
7. A party to whom an order of discovery of documents has been passed, as a general rule, shall produce all the documents which are under his possession related to the suit.  
8. If the parties are taking any legal protection under the privileges provided under the code, then the court shall verify such documents and give the protection.
9. Failure to comply or default from the side of the parties to the order for discovery, production or inspection,  can lead to adverse inference on the party. 

Inspection of documents

Under Order XI Rule 12-21 of the CPC, the rule for the inspection of discovery is provided. As per Rule 12 of the code the party can compel other parties to produce the documents without filing an affidavit to apply to the court, relating to any matter of question-related to the suit. However, such documents need not be admissible in court unless they give out some connection in a matter of controversy.

As per the Rule 15-19 of Order XI of the code, the inspection of documents can be divided into two categories:

1.  The documents which are referred to in the affidavits or pleadings of the parties.
2. The documents which are not referred to in the pleadings of the party but are in the power or possession of the parties.

And the parties are allowed to get the inspection of the former category documents, not the latter one.

Privileged documents

Privileged documents are :

1. Public records;
2. Confidential communication;
3. Documents which have exclusive evidence of the parties’ title.

Such mentioned privileged documents are protected from the production. So to get benefit from this privilege and to avoid the risk of repetition, the court can order the parties to produce the document to the court. And the court can inspect such documents and ascertain the validity of the claims which were made to make that set of documents underprivileged.

Premature discovery

As per Rule 20, a discovery is termed as premature discovery or inspection:

1) When the right to discovery is based on the determination of any issue or question in dispute; or 

2) For any reason, it is desirable that any issue or question in a suit should be determined before deciding upon the right of discovery.

Non-compliance with order of discovery or inspection

As per Rule 21, the order of the court is binding in nature, and the parties who do not comply shall be liable to pay the penalty. Hereby, we can understand that the intent of the legislature to provide such provision is: 

1. To compel the parties to disclose all the material documents and facts on oath.
2. To restrict the parties from coming up with new documents which are actually in power or possession of the party during the trial. 

The court has the discretion to postpone a premature inspection or discovery. Under such circumstances the first thing court shall do is to determine that question or issue and afterwards, deal with the discovery. The main logic of this provision is to enable the court to distinguish between the difference of deciding an issue in suit from deciding the suit itself. However, it needs to be kept in mind that this provision will not work if the discovery in itself is necessary for solving the issue or question.

The importance of such provision is that if the defendant denies complying with the provision it will be deemed that the defense from the defendant’s side will be struck off and that will restore the position of the defendant to where he had been as if he has not defended. In the case, if the plaintiff does not comply to the provisions then it will lead to an adverse effect that means the plaintiff will disentitle to file a case as a fresh suit on the same cause of action and res judicata will be applicable. Therefore, non-compliance will impact the case adversely.

Admissions – Order 12

Admission basically means the voluntary acknowledgement made by the person against his own interest. It can be an important piece of evidence against a person. It can either be in oral, electronic form or documentary in nature. Admissions are different from the confession which is made under the criminal law. Admission is weaker than confession because the parties have the right to prove that admission made earlier was false. 

However, assertions are different from admission. It can be made in favour of themselves. It can be true or false, therefore assertions are not considered as an important piece of evidence which can be used against a person. 

Importance

As per the case of  Bharat Singh And Anr vs Bhagirathi, the Supreme Court held that:

Admissions are substantive evidence by themselves. But as per section 17 and section 21 of the Indian Evidence Act, they are not conclusive in nature. However, if admission is proved beyond doubt and duly proved, then irrespective of the fact if the witness appeared in the witness box or not, the admission can be considered admissible. 

In the case of Biswanath v Dwarka Prasad, the Apex Court observed that:

1. The admissions are made by the maker against himself unless otherwise proved or explained.
2. The admissions are considered as proprio vigore that means a phrase which by its own force. 

In another case of Supreme Court, Bhogilal Chunilal Pandya vs The State Of Bombay, it has been stated that even if admissions made are not communicated to the other person, then also that can be used against him. For example: if the person has written in the accounts book regarding debt, then if such evidence is available then that will be considered as an admission even if the debt was not communicated to other people.

Kinds of admissions

Under the Code, the admissions are admitted in three ways:-

1. By agreement or by notice;
2. Actual admissions, oral or by documents;
3. The express or implied admissions from the pleadings or by non-traverse by agreement.

Conclusiveness of admission

The admissions are not conclusive in nature. They can be erroneous or gratuitous. Admissions made can be withdrawn or explained away. It can be proved wrong. The context of the admission can be made after hearing the pleadings in entirety. Oral admissions prevail over documentary or records of rights. Even the admission, if made earlier, can be proved to be collusive or fraudulent. And one more important thing is, if the admissions are made by the co-defendant then that can not be used against other defendants.

Notice to admit case

As per Rule 1, any party to the suit can admit the whole or part of the case of the other side in writing.

Notice to admit documents

Within seven days of the notice served by the other party to admit the documents, the party shall respond to the notice. If not responded on the mentioned time then the party which fails to do so will be liable to answer the delay and the costs of providing them. 

Every document which was called upon to admit if:

1. Not denied specifically or by necessary implication, or
2. Not stated to be admitted by the party in their pleading, or
3. Not replied during the reply to the notice;

shall be deemed to be admitted.

One exception to the above provision is the person under disability.

If a person without any valid reason refuses or neglects to admit documents then that person shall be penalised and will be made to pay to the opposite party. The court can suo moto call the party to admit the documents. The form of the notice to submit the documents shall be in Form No. 9 in Appendix C, with variations as per requirement.

Notice to admit facts

Any party in the suit can call the other party to admit facts of the case by giving them notice which shall not be later than nine days before the day fixed for the hearing.

And the other party if refuses or neglects to admit the facts then within six days after service of notice or as per the time prescribed by the court, shall be informed to the court. However, the costs of proving such fact or facts shall be paid by the party.  

Further admissions shall be used only for the purpose of the suit for which it has been made. It shall not be used against the party on any other occasion or in favour of any person other than the party giving the notice.

The form of the notice shall be as per Form No.10 in Appendix C and the admissions made thereby shall be in Form No. 11 in Appendix C, as per the requirements needed. 

Judgment on admissions

As per Rule 6 Order 12, Judgment on admissions can be read as-

Where admissions are made during: 

1. Facts or pleading or otherwise;
2. May be in oral or in writing;

The court at any stage of the suit- 

1. Either on the application or of its own motion;
2. Without waiting for the determination of questions by parties;  

can give out judgment as it may think fit, with regard to such admissions.

The relief which is provided under this section is discretionary in nature. It gives wide discretion to the court by giving it the power to give decree in the suit and at the same time, it is not bound to pass a decree in a reasonable and proper manner. Even the court can call for evidence before passing such decree. But if averments are made in the written statement which leads to trivial issues then under such circumstances the decree under this provision shall not be passed. In case of R.K. Markan vs. Rajiv Kumar Markan, wherein it was observed as under:-

“For passing a decree on the basis of admission of the defendants in the pleadings, the law is well settled that the admission has to be unequivocal and unqualified and the admission in the written statement should also be taken as a whole and not in part….”

While we talk about judgments which are relied upon by the court passing decree, those must be clear, unequivocal and categorical, it shall not be vague and conditional. 

However, in the case of Razia Begum v. Sahebzadi Anwar Begum, the Apex Court discouraged the courts to pass a decree under this provision which not only affects the parties but which also affects the generations.

The court observed that while passing a decree under Rule 6 Order 12, the judge should also look at Rule 5 Order 7 of the code. By reading both sections at the same time it shall be concluded that decree passed under Rule 6 is applicable to commercial transactions only, not otherwise where the claim is based on documents which need proof. So in the matters of will, gift, sale or coparcenary documents admissions can be proved to be erroneous, hence, they shall not be treated as proved on the basis of such admissions.

Production, impounding and return of documents- Order 13

Production of documents

As per Rule 1 of Order XIII, the parties or their pleaders shall produce the documents at or before the settlement of disputes. 

Admission of documents

Subject to the provisions of the Code the admission of the documents are allowed as evidence in the suit when the following particulars are made:

1. The number and title of the suit,
2. The name of the person producing the document,
3. The date on which it was produced, and
4.  A statement of it having been so admitted;

The endorsed documents shall be signed by the Judge.

Where the admission of documents in evidence is:

• An entry in a letter-book or a shop book; or
• Other accounts which are in current use, or
• Entry in a public record produced from the public office or by a public officer, or 
• An entry in a book or account belonging to a person other than a party on whose behalf the book or account is produced;

under such circumstances, the person can produce a copy of the document, after the proper examination, comparison and certification as per Rule 17 of Order VII of the Code.  

Further, the documents admitted into evidence shall be part of the record of the suit.

Return of documents

If any party to the suit or not is having the desire to receive back any of the documents submitted by him in the suit which is placed on the record is entitled to receive the documents unless it is impounded by the court under Rule 8. 

The court can return the documents on the following grounds:-

1. Where the suit is one in which an appeal is not allowed, when the suit has been disposed of, and;
2. where the suit is one in which an appeal is allowed when the Court is satisfied that the time for preferring an appeal has elapsed and that no appeal has been preferred or if an appeal has been preferred when the appeal has been disposed of;
3. During the pendency of the suit, the party can receive the documents if the following conditions are fulfilled:

• the party is substituting the original document with a certified copy from a proper officer;
• Undertakes to produce the original copy if required.

While returning the document which has been admitted in evidence, a receipt shall be given to the person who is receiving it. 

Rejection of documents

Rule 3 gives the discretion to the court to reject the documents on the basis of inadmissibility or irrelevance of the document. The court while rejecting the documents shall also mention the grounds of such rejection.

Impounding of documents

The court can order the parties in the suit to produce any documents or book before the court as per Rule 8 notwithstanding Rule 5 or Rule 7 of  Order 13 or Rule 17 of Order 7 of the code. 

The documents or books impounded by the court shall be in the custody of an officer of the court, for such period with subject to conditions if required. 

Affidavits – Order 19 

Affidavits are dealt under Order 19 of the Code. It is a sworn statement made by the person who is aware of the facts and circumstances which has been taken place. The person who makes and signs is known as ‘Deponent’. The deponent makes sure that the contents are correct and true as per his knowledge and he thereby concealed no material therefrom. After signing the document, the affidavit must be duly attested by the Oath Commissioner or Notary appointed by the court of law.

The person who gives attestation to the affidavit shall make sure that the sign of the deponent is not forged. The affidavit shall be drafted as per the provisions of the code. It must be paragraphed and numbered properly. 

Even though the “affidavit” has not been defined in the code, it basically means “a sworn statement in writing made specifically under oath or affirmation before an authorized officer or Magistrate.”

Essentials

There are some basic essentials which are required to be fulfilled while submitting the affidavit in the court:

1. It must be a declaration by a person.
2. It shall not have any inferences, it shall contain facts only.
3. It must be in the first person.
4. It must be in writing.
5. It must be statements which are taken under oath or affirmed before any other authorized officer or a Magistrate. 

Contents of affidavit

As per Rule 3, an affidavit shall contain only those facts to which the deponent is aware off as true to his personal knowledge. However, interlocutory applications can be filed wherein he can admit his belief. 

Evidence on affidavit

As per section 3 of the Evidence Act, affidavits are not considered as evidence. When there is a need to prove the facts, oral evidence is normally taken into consideration by the court. However, Rule 1 Order 19 is invoked by the Court when it finds that it is necessary to make an order for any particular fact which may be proved by affidavit. If a person provides evidence under the affidavit then the opposing counsel has the right to cross-examine or reply-in-affidavit.

Further, the person who is making an affidavit shall put on those facts only to which he has true personal knowledge. If he gives a statement, not to his personal knowledge then in such case he shall mention the true source. The counsel shall advise the deponent to make sure that he puts facts which he knows rather than what he believes.

The court can reject the affidavit if it is not properly verified and not in conformity with the rules of the code. At the same time court can also give an opportunity to the party to file the affidavit properly. 

In the interlocutory applications like interim injunctions, the appointment of receiver, attachment of property wherein the rights of the parties are not determined conclusively, can be decided on the basis of the affidavit.

False affidavit

Under Section 191, 193, 195, 199 of IPC,1860, filing a false affidavit is an offence. Giving a lenient view will undermine the value of the document and it will harm the proceedings and will provide no justice to the parties. Criminal contempt of court proceedings can be initiated by the court against the person who files false affidavits in the court of law. Strict actions are taken against public officials who files false affidavits.

As per section 193 of the IPC:

• a person who intentionally gives false evidence or fabricates false evidence during a judicial proceeding, he shall be punished with seven years of imprisonment and fine; 
• and whoever intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.

Conclusion

The procedures provided under the CPC are so important, that if not followed properly, can adversely affect the parties. The court has discretionary powers under Order 11, 12, 13 and 19 to pass such order which it deems fit to adjudicate matter fairly. The parties shall also follow the procedures provided within the time frame, so that the case can be disposed off quickly and effectively.

References

• https://www.supremecourtbc.ca/sites/default/files/web/The-Discovery-Process.pdf
• http://www.mondaq.com/india/x/730266/court+procedure/Discovery+By+Interrogatories
• http://www.legalserviceindia.com/legal/article-771-interrogatories-and-privileged-documents-a-discovery-device-in-civil-suit.html
• http://www.legalserviceindia.com/legal/article-771-interrogatories-and-privileged-documents-a-discovery-device-in-civil-suit.html
• https://lawtimesjournal.in/discovery-inspection-documents/
• https://www.lawnn.com/law-evidence-admissions-admissions-indian-evidence-act-1872/
• http://cja.gov.in/data/Civil%20Law.pdf
• https://www.lawnotes4u.in/2018/09/affidavit-under-cpc-order-19-format-meaning-essentials-etc.html

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

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This article is written by Ayushi Dubey.

Abstract

The essay discusses the position of women in society and how they have been struggling for their rights since time immemorial. Further it explains India’s stand on divorce and its position and meaning in personal laws of all religion and then specifically in Islam. The essay then focuses on Talaq-ul-Biddat i.e. instant Triple Talaq and explains its importance in Islam and how it is equally condemned by the Quran as well. It further tries to bring the global perspective of instant Triple Talaq and put forward the point that how major Islamic countries have also abolished it on the ground of it being discriminatory on the part of the woman. In India, instant Triple Talaq has been held unconstitutional in a recent judgment and also an ordinance had been passed for the same. The author studied the recent bill on the same, which was passed by the Lok Sabha but could not pass through Rajya Sabha and hence lapsed on the dissolution of Lok Sabha and is of the view that the practice of instant Triple Talaq is arbitrary in nature is against the fundamental right to equality of women and therefore, the legislature should make mandatory provisions for the same so that no more injustice could take place. 

Introduction

The title of the paper raises, the unanswered question of all the time, “where is a woman’s right to equality?” Even today, to many the word woman and right in the same sentence might not digest, because since ages women have to fight for something that they deserved as a human being i.e. their fundamental right of being treated equally, but they never got that, on the ground of being a part of a gender, which the so-called society considers as inferior and undeserving. The fight for equality has seen a recent storm, the storm of being divorced without even being informed about the reasons for the same i.e. the issue of instant Triple Talaq. Before we discuss the recent aspects of this issue, we shall look briefly towards the historical background of divorce in India. 

Talaq or divorce is a way of dissolution of marriage. It is a natural marital right which both spouses have. Divorce these days is acceptable in almost all forms of society and religion and the law has also given its due recognition. But still, in many religions it is amongst the most hateful thing permitted, the reason being that marriage is considered to be the holiest ties among the human race, especially in countries like ours. Divorce laws vary in every religion, in some religions, the legal procedures are used and some have their own religious customs and traditions to dissolve the matrimonial bonds. 

In India, Hindus never really had the concept of divorce because marriage was considered to be sacrosanct. It is considered that the marriage ties between two people are decided and created by God and hence humans don’t have the right to dissolve it. It was in 1955 when the Hindu Marriage Act was passed and divorce was recognized. But in Islam the case is different, they regard marriage or Nikkah not as a religious sacrament but as a secular bond, therefore, divorce/Talaq was something in the ambit of humans because it is a contract which can be dissolved. According to Quran, the relationship among spouses should ideally be based upon love and if marital harmony cannot be achieved then, the Quran allows the couple to put an end to it. But also, the prophets of Islam is reported to have said “with Allah, the most detestable of all things permitted is divorce”, and towards the end of his life he practically forbade its exercise by men without the intervention of an arbiter or judge. Hence, the provisions for divorce were always there, but it was advised to use it as the last resort. For a better understanding of the position of divorce laws in Islam we shall look upon the Classification of divorce in Islam: 

There are majorly two ways by which marriage in Islam can be dissolved: 

1. By the death of a party to the marriage
2. By divorce

Divorce further is classified into four categories: 

1. By husband: Talaq, Ila, Zihar
2. By wife: Talaq tafweez
3. By mutual consent: Khula and Mubarat
4. By judicial decree under the dissolution of Muslim Marriage Act, 1939: Lian and Fask.

Here we are concerned with Talaq which is further divided into three categories:

1.  Talaq-ul-Hasan
2.  Talaq-ul-Ahsan
3.  Talaq-ul-Biddat [Triple Talaq] 

Talaq-ul-biddat or instant triple talaq

It is an irrevocable and instant form of divorce in which the husband pronounces the word “Talaq” repeatedly three times and hence dissolves the marriage. In this type of divorce, the wife has no right to question the reason or motive behind the Talaq and nor she is entitled to be given any kind of explanation. Therefore, it is considered against equality and justice. Women are left with broken ties and are given no explanations. The question of maintenance is not even raised in this type of Talaq. 

“It is a sinful form of divorce. It is an irregular mode of Talaq introduced by Omeyyads in order to escape the strictness of the law. In Sarabhai v. Rabia Bai, it was said that Talaq-ul-Biddat is theologically improper. It has been maintained that this form of Talaq is improper from the moral point of view.”

Even the prophets and Quran argues that Talaq-ul-Biddat is a sinful form of divorce but, still it is being practiced from ages merely because it exists. Something that was relevant 1400 years ago not necessarily needs to be continued. With changing times things have to amend for the betterment of society and instant Triple Talaq is something that was not relevant even then, so, how would it work now? It is sinful since the time of origin, so there is no point in continuing its practice.

“Talaq-ul-Biddat, that is giving an irrevocable divorce at once or at one sitting or by pronouncing it in a tuhr once in an irrevocable manner without allowing the period of waiting for reconciliation or without allowing the will of Allah to bring about reunion, by removing differences or cause, of differences and helping the two in solving their differences, runs counter to the mandate of Holy Quran and has been regarded as, by all under Islam-Sunnat, to be sinful. 

We are living in the 21st century and we still have to argue for such basic rights when it comes to women. A woman who has been living with her husband for years is suddenly thrown out of her husband’ life, her home and was not even informed why? Taking consent is a far away thing! The patriarchal setup of the society has always treated women as chattels and therefore to them, there is no need to take consents and neither their opinions matter for them. And instant Triple Talaq is only one example, we have a list of so many issues where women have been treated unequally, be it be the Haji Ali Dargah issue or the Sabrimala Temple case, where arbitrary provisions restricted women to enter inside the sanctum sanctorum of Dargah and temple respectively. Here again, the Hon’ble Supreme Court has to interfere for the rights of women. The court, clearly in both the judgments removed the restrictions, made access of women in the places of their worship easy and held that equality shall prevail in all circumstances and even, if you talk about the right to religion, then what about a woman’s right to religion, unnecessary restrictions on their entry hamper their right to worship as well. 

Talaq-ul-biddat: and India’s current situation 

22 countries including Pakistan and Iran have abolished Triple Talaq either explicitly or implicitly. It is usually believed that religious minorities in a country are reluctant to changes, maybe because they feel that change in their personal laws might push their religion to a place where their religious identity would be at stake. In India, this can be clearly seen and hence it has always been difficult to change personal laws especially when it comes to religious minorities. But taking the example of Sri Lanka here, only 10% of its population is Muslim still, it struck down instant Triple Talaq in 2006 through an amendment to Sri Lanka’s Marriage and Divorce (Muslim) Act, 1951. 

“In this paper, Reforms in Triple Talaq in the personal laws of Muslim states and the Pakistani legal system: Continuity versus change, Dr Muhammad Munir, Professor of law and Director of the Shariah Academy, International Islamic University, Islamabad, rates the Lankan law as the “most ideal legislation on Triple Talaq.”

The other countries which have abolished Instant Triple Talaq include Cyprus and Turkey because they have adopted secular family laws. Some countries have abolished instant Triple Talaq because they do not recognize divorce outside the court such as Tunisia and Algeria. Iran has also abolished Instant Triple Talaq as it follows Shia Law and Instant Triple Talaq is a practice under the Sunni Law. 

The scenario, in India, is a bit different though, religious sentiments play a great role in decision making here and the absence of a Uniform Civil Code is one of the major disadvantages in the way of striking out certain practices that are a part of the system from time immemorial but nobody feels it correct to question the logic or legal reasoning behind that particular practice and instant Triple Talaq is one such example. 

In the recent judgment of Shayara Bano v. Union of India, a five-judge bench of the Hon’ble Supreme Court, by the majority of 3:2 has set aside the practice of Talaq-ul-biddat. The Coram consisted of Justice Jagdish Khehar (then CJI), Justice Kurian Joseph, Justice R F Nariman, Justice U U Lalit and Justice S Abdul Nazeer. 

The minority opinion i.e. the then Chief Justice and Justice S Abdul Nazeer, unanimously considered Talaq-ul-biddat as an essential religious practice under Article 25, under the Shariat Law and therefore, held that the court cannot interfere in the same. However, they agreed that the practice is discriminatory on the part of women but the fact that it is a part of the Hanafi School since 1400 years is something which the court cannot overlook and therefore, it is the legislature who can interfere in this by making proper laws in this regard and not the court. The right under Article 25, cannot be infringed by the court. They agreed to the fact that Talaq-ul-biddat is bad in theology but argued that it is accepted as valid law everywhere and merely because it is considered bad in theology they cannot strike it down.

To go from “all persons are equally entitled to freely practice religion” to “Article 25 protects personal laws” is to put language into a rack and torture it into a shapeless mass. What might have the Justice Khehar been thinking? Perhaps he was thinking this: personal law falls within religion. Article 25(1) protects religion. Therefore, Article 25(1) protects personal laws. That train of thought, however, misses the fact that Article 25(1) does not protect religion per se, but protects an individual’s freedom to practice her religion; in other words, it does not protect religious norms, rules, or institutions, but individual rights. Now, it might be argued that, potentially, a Muslim man could approach the Court and argue that by denying him the option of instant Triple Talaq, his Article 25(1) right was being violated; such a case, however (apart from being decided on separate grounds altogether), is conceptually different from conferring the “stature” of fundamental rights upon an entire system of (personal law) rules, and the distinction is crucial.

“We are satisfied, that the practice of ‘Talaq-e-biddat’ has to be considered integral to the religious denomination in question – Sunnis belonging to the Hanafi school. There is not the slightest reason for us to record otherwise. We are of the view, that the practice of ‘Talaq-e-biddat’, has had the sanction and approval of the religious denomination which practiced it, and as such, there can be no doubt that the practice, is a part of their personal law.”

Justice Kurian Joseph (majority opinion) by respectfully disagreeing to the then CJI denied agreeing that merely because Talaq-ul-biddat is an age-old practice, it can be considered as an essential religious practice of the Muslim law. He held that the Act of 1937 declared Shariat as law and hence “What is held to be bad in the Holy Quran cannot be good in Shariat and, in that sense, what is bad in theology is bad in law as well.”

Justice R F Nariman and Justice U U Lalit together agreed to that fact that “this form of Talaq is manifestly arbitrary in the sense that the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it.” They also held that the practice is violating Article 14 of the constitution as the Muslim man holds the ultimate power in this regard whereas the woman has no say in it. The court also struck down the relevant part of Section 2 of 1937 Act under Article 13(1).

Hence, the practice by a majority opinion has been set aside on the grounds that the practice of instant Triple Talaq is discriminatory, against the dignity of women, against the principle of gender equality as well as gender equity and constitutional morality. And it was suggested that the legislature should make proper laws with regard to this. 

Legislature on the issue

After the judgment in 2017, the NDA government considering the seriousness of the situation proposed a bill in the parliament called the Muslim Women (Protection of Rights on Marriage) Bill, 2018 which held the declaration of Talaq as in Talaq-ul-biddat as void and illegal under its section 3. The Bill grants punishment for Muslim men falling under section 3 of the Bill, which may extend to 3 years and fine as well. 

“Law Minister Ravi Shankar Prasad, in the statement of objects and reasons attached to the Bill says that this legislation will, “help in ensuring the larger Constitutional goals of gender justice and gender equality of married Muslim women and help subserve their fundamental rights of non-discrimination and empowerment.”

The Act was passed through Lok Sabha but could not pass through Rajya Sabha and then due to the end of parliament session and consecutively the end of the tenure of the government, the bill has lapsed. Though the bill seeks for the betterment of Muslim women who suffered due to the age-old practice of Talaq-u-biddat but the way it seeks betterment, it faced a lot of criticism. Talaq-ul-biddat was an accepted practice till now and people were following it for various reasons. In the current scenario, all of a sudden, the state cannot hold this practice criminally liable. However, civil liability can be a solution for the time being but criminal liability would not help the situation in any way. How would sending the husband behind bars, for divorcing his wife through Talaq-ul-biddat, will help the wife who filed a complaint about the same. A Legislation surely needs to be enacted against the practice of instant Triple Talaq but considering the need of the society as well as the situation prevailing in the society, stringent actions in matrimonial issues will not help, but a solution which could help in making the situation better and prosper the family ties would help. 

Conclusion

Considering the social and historical background of India, a bitter truth to be accepted is that women are always considered as the inferior gender. The society has always and possibly even today is discriminating women. A woman’s opinion, beliefs, rights, choices were never given importance and instant Triple Talaq is an example of one such practice. Divorce, in the author’s opinion, is amongst the most important decision of a person’s life and it affects the lives of both spouses equally, then also, the so-called inferior gender has no say in it. 

We live in India, a patriarchal society in which women are brought up with the fact that their main goal in life is to be a good wife and imagine a situation in which your whole world breaks down in front of you just by saying a word repeatedly 3 times, you are left with god knows how many children, no education, no choices, no future, no maintenance, and eventually no means to live. We talk about equality, we talk about women empowerment, we say that women are no less than a man but is it actually a reality? It may be a bit easy for people who are well educated, who know their rights and remedies, if not given fair chances but what about those women who never went to school, who were married at the age of, maybe 13, who is a mother of 2 kids at the age of just 18 and now her only dream in life is to live happily with her family and then suddenly she has no clue of what wrong she did and been thrown out of the house to face a more difficult world. This is not a universal reality there are exceptions, it is not the man who is always on the wrong side but all that we are asking for is equality, whatever the situation may be equality is the basis of all. At least one deserves a reason; everyone has a chance to know- the right to be answered. 

Triple Talaq is in practice from centuries but injustice from centuries can never become a justice. A full stop is always required; there is always a need for amendment. We are talking about it, this is the first step, the apex court by setting aside the practice has taken the second step and did provide justice to all those who have been suffering from so long. However, there are still a number of women who are suffering. Even after the apex court passed this judgment the All India Muslim Personal Law Board has confirmed cases of instant Triple Talaq. This is because of the lack of proper execution and legal knowledge. Maintenance rights and all other rights should be given to the Muslim women as well and one day these little steps will take us to our destination of a Uniform Civil Code. 

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

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

When you are in the marketplace, it pays a great deal to make it better for your end-users. Even if by a small, minuscule but perceivable margin. 

Most people do not get it. They just try to drop prices to attract clients. It is a shitty strategy, this way you will only get the worst clients and reduce the value of your offerings and ruin your brand. It is a rookie mistake. Let me give you an alternative today.

Out-compete your competition by offering more value.

For example, Dominos became the most profitable pizza business by offering 30 minutes delivery and money-back guarantee for failure to deliver in 30 minutes. It wasn’t the cheapest, it was not even the best pizza, but growing up, for us, it was the quickest to get a Dominos pizza delivered. 

Did you know that Dominos shareholders made more money than Google shareholders in the last 20 years? Dominos grew faster than even Apple! 

Just a little bit more convenient than all the other food options. Others delivered in 45 mins to an hour. Dominos did in 30, and guaranteed it. Pizza Hut is a small non-entity, but Dominos is a giant, worldwide. That’s how.

That reminds me of Zomato. I heard this story from Sanjeev Bhikchandani, founder of InfoEdge and one of the early investors in Zomato. 

Deepinder Goyal, the founder of Zomato was then working at Bain & co. in Gurgaon as a management consultant after graduating from IIT Delhi. In the office, there was a folder of menus of local restaurants, which you could use to order dinner if you had to stay in the office late. 

This is how it is in good law firms also, and your dinner gets billed to the clients. 

Can’t tell you how many nights I stayed back in the office to order from top restaurants in Lower Parel when I worked for a law firm

Anyway, Deepinder had a tough time getting the folder because people always fought over it come dinner time. So he one day he got frustrated and scanned the menus and put up on the office intranet so people could just see the menus online. Then he got a visit from office IT managers due to suspicious traffic surge within the office intranet. 

Then he realized how popular and powerful this scanning menu and putting them up online thing is. His was not the only office in Gurgaon. What if many, many others wanted the same thing? 

Around 2008, he quit his job to start a company called Foodiebay. He scanned menus of restaurants across India and put them up online. And that got him started on building a billion-dollar company called Zomato. 

A small thing led to massive traffic, investor interest, and other opportunities later. A global enterprise was born from a tiny, small convenience.

It kills me to think of how many things lawyers can do to make things a little easier for their clients and they just refuse to do so. By offering small benefits, you could build massive legal enterprises too.

I have tried it, and I vouch that it works. 

Forget iPleaders or LawSikho, these are fairly complicated businesses.

A few years back, I started a company called ClikLawyer. I offered clients a clear written roadmap as to what I would be doing for them over the next few months and offered a step by step payment plan. I educated them extensively on how a legal matter can proceed through the court system. Then hired lawyers and managed them to get the work done. In the first month, our revenue was 1.5 lakhs. In the 7th month when I closed it down for personal reasons, revenue was at 8 lakhs. It was very, very profitable, and was growing super fast. 

It was growing so fast that it was scary for me. I realized that I can’t run 3 businesses at once, and chose to shut down one. Also, I moved to Goa to recover from some serious health issues. Also, a partner in that business quit, making it hard for me to continue. 

But I saw first hand how ridiculous it is to say that there is not enough work for lawyers in the market. Nonsense. You just don’t know how to get the work.

Why can’t we do more than what the market already does? 

What if you offered more transparency?

What if you offered a payment plan?

What if you made it more convenient?

What if you made it easier for the client?

What if you could make it faster and more efficient?

What are the transaction costs for your clients? What if you can reduce them somehow?

What if you could reduce the difficulty of trusting you?

What can you do to make them more comfortable, more secure, more assured, more confident about the services they need?

How can you reduce the upfront cost and get more when the work is done?

Every time you do something for your clients that is different from what is available in the market, you have a massive competitive advantage.

Why do you think we give a money-back guarantee at LawSikho for our premium courses? Just check out this insane refund policy, which we have always respected. 4 times in the last 1 year.

Click Above

We do it because it reverses the risk from the buyer of a course to us. We assume the risk, and nobody who offers legal courses other than us will dare to do this. It shows the confidence we have in our course about how we will generate value for you, and what lack of confidence our competitors have comparatively! 

Why cant they offer a money-back guarantee as we do? The contrast is stark. The signal to buyers is evident.

That small gesture convinces many lawyers to take the plunge with us, and when they become a fan, they buy many more courses. 

It also keeps my team on its toes. They can’t screw up.

This is what a Vakilsearch or Indiafilings did too. They reduced prices and made it super easy to get a trademark registration or company registration. Compared to that, working with a law firm to get any services is a pain in the ass. 

And that’s why they do multiple crores of revenue a year!

A recent law graduate came up with an idea that his startup will give money upfront for legal expenses, and take money from litigants in EMIs. Wow. 

Such a simple thing, but so powerful. Banks won’t give money for financing a lawsuit. But his startup will. It is a fintech startup, with a legal twist. Really hot space! I am sure this startup will go places. Simply because it is so simple and yet so needed! 

What are you going to do?

Join our legal practice management course. We are always ideating on how to gain competitive advantages over other lawyers. It’s incredible how much value lawyers are already generating from the course. Try out risk-free. See the refund policy. 

There are a bunch of other courses where we teach practical legal skills within a few months that you will otherwise take years to learn, and we are taking enrollments. Start the year with a bang:

DIPLOMA 

Diploma in Business Laws for In House Counsels

Diploma in Companies Act, Corporate Governance and SEBI Regulations

EXECUTIVE CERTIFICATE COURSES

Certificate Course in Advanced Corporate Taxation

Certificate Course in Insolvency and Bankruptcy Code

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

Certificate Course in National Company Law Tribunal (NCLT) Litigation

Certificate Course in Arbitration: Strategy, Procedure and Drafting

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 Pooja Bharadwaj.

Abstract

India is a country that is well known for its distinct and unique cultures and religions that allows each individual to follow their religion or faith. Women’s Rights is an exceptionally ethical topic that is encircled by ethical and moral concepts and has much antiquity. India is a diverse country, and it should be for the religious community and the worshippers to decide the critical religious practice, not for the court of law, it is an issue about personal faith. Whereas, Concepts of rationality can’t be raised in issues of religion until and unless there is any aggrieved person from that religion or Sec. Constitutional ethics and morality in a diverse country provide freedom to practice even irrational customs. 

This article highlights the idea of the separation between secularism regulated by the State, and religious practices in which it must not interfere and talks about why women devotees of menstruating age should not be allowed in the Sabarimala temple. Concerning the Sabarimala case, allowing PILs challenging religious practices could affect the notion of secularism of the country. Art. 25 of the Indian constitution should protect the Sabarimala shrine as it cannot be judged solely based on Art. 14 (Right to Equality) because equality exists among equals. 

A religious community and the worshippers have the freedom to believe and practice even if their beliefs are illogical or irrational. What needs to be argued is whether the courts should intervene with the essential religious practices or not. This article intends to discuss several precedents from the nineteenth century to the present day about the limits of the intervention of the judiciary and the predicament between law and religion. If the women worshippers truly honor the tradition, then the question that arises is who is right to pray is being infringed? If the women cannot have faith in the rituals of the Lord Ayyappa, then why would they want to go to pray at all? Does restraining women from entering inside the temple, from being precise ‘menstruating women’ qualify as discrimination under Art. 15?

Introduction

Sabarimala temple, a Hindu shrine, is devoted to Lord Ayyappa. The temple is situated at the Periyar Tiger Reserve in the Western Ghat mountain ranges of Pathanamthitta district in Kerala. It prohibits the entry of women, between the ages of 10-50, in their ‘menstruating years’ because it is a place of worship. Kerala high court in case of S.M. v. the Secretary, 1991 held that the exclusion of women entering into the temple was constitutional & just as it was a long-standing custom prevailing since time immemorial. In 2006, the Indian Young Lawyers Association challenged the Sabrimala Temple’s custom of excluding women and further filed a public interest litigation petition before the Supreme Court. The main argument by the petitioners was stated as the custom violated the rights to equality and freedom of religion of female worshippers under Art. 14 and 25, respectively. 

The State argued that the final authority in this matter lies with the Temple’s priests. The TDB (Travancore Devaswom Board) has the legal authority to govern the Sabarimala Temple’s administration. Art. 26 of the Indian Constitution, guarantees a denomination based on religion the right to manage its internal religious affairs. Moreover, Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 protects the custom of Sabarimala temple. The rule permitted the exclusion of women from public places of worship if the exclusion was based on ‘custom.’ The Supreme Court heard the arguments from the petitioner challenging the prohibition of women of age ten to fifty years to Enter the Sabarimala temple. In 2018, the supreme court held, in a 4:1 majority, that the exclusion of women violated the fundamental rights of women between the ages of 10-50, and Rule 3(b) of the Public Worship Rules was unconstitutional. Justice Indu Malhotra believed that in a secular polity, it was not for the Courts to interfere in matters of religion, and the same must be left to those practicing the religion and faith. 

The concept of religion is not only a matter of spirituality hunt but a serious part of our society. Two essential questions came up in this landmark case. 

1. The issue of maintainability of arguments of the petitioner concerning religious practices under Art. 32 of the Indian constitution.
2. Does Art. 14 apply to such cases?

The main concern for Justice Indu Malhotra was that if SC entertains such PILs then the courts will get burdened by a huge number of cases regarding religious sentiments by persona non grata of Public Interest Litigation. Moreover, it doesn’t make sense for a person who does not belong to that specific religion and subscribes to the specific religion has no right to approach the court under constitutional remedies of the Indian Constitution because the person cannot be said to be aggrieved.

Two affidavits were filed by The State of Kerala, aiding the case of the Petitioners. However, The State wanted the appointment of an “appropriate commission” to give opinions and suggestions on whether women’s entry of 10 to 50 years should be allowed.

Historical Background 

The Sabarimala Temple is devoted to Lord Ayyappa. According to the traditions that are centuries old, it is the belief of the devotees of the temple that women of the age group of 10 to 50 are not allowed to enter this Temple. They believe that it is a crucial aspect of a ‘Naishtik Bramhachari,’ who practices strict penance and the severest form of celibacy.

Ancient folklores of Lord Ayyappa Swami 

King of Pandalam, also known as Manikandan, found Lord Ayyappa as a newborn near the river Pampa. King fittingly built the holy temple at Sabarimala and devoted it to God. The divinity of Lord Ayyappa in that temple was established in the way of a ‘Naishtik Brahmachari,’ which is a perpetual celibate. It is believed that God has explained how the pilgrimage to Sabarimala Temple is followed through a procedure by undertaking a Forty-one-day ‘Vratham.’ 

He, Lord Ayyappa, commenced the ‘Vratham’ for forty-one days before he entered Sabarimala Temple to unite with the divinity. The complete procedure of the observed by a worshipper is to imitate the path of Lord Ayyappa. ‘Bhuthanatha Geetha.’ Aka ‘Sthal Purana,’ Reveals the way of worship at Sabarimala temple in the words of the Lord himself. 

The Forty- one-day “Vratham” is a custom and practice observed by the worshippers. Forty-one days ‘Vratham’ aims to discipline and teach self-control and train the pilgrims for the development of divine awareness leading to self-actualization. To keep the body and mind pure, it is essential to observe the sattvic lifestyle and brahmacharya before undertaking the pilgrimage. It is considered as an essential requirement of the forty-one days vratham to withdraw oneself from the avaricious world and enter into the divine path.

Naishtika Brahmacharya 

The main reason for restricting the entry of women of the age 10-50 is because Lord Ayyappa took the pledge of a ‘Naishtika Brahmachari,’ i.e., protecting semen from dropping to the floor or leaking down as this hampers the divine progress. 

Shri Swami Sivananda has defined the purest meaning of being a brahmacharya. In his words, it meant actions that lead an individual to self-actualization. It refers to the self-control an individual has on his semen. Brahmacharya is referred to as self-restraint, predominantly restraint over the sexual parts of the human body or freedom from lust in thought, word, and deed. 

Firm self-restraint is not only from sexual intercourse but also sexual expressions including thoughts even during the sleep, from sexual acts and all kinds of sexual carry-out. Thus, it includes eternal nonparticipation from involvement in stimulating thoughts and voluptuous daydreams. 

Religious stance of Sabarimala Temple 

Religion is a concern of belief. Religious faiths are supposed to be holy and pure by the people who have faith. Dependence was placed on the precedent in Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Swamiar Thirtha Swamiar of Shirur Mutt where the definition and meaning of religion was extracted from an American case, i.e. “The term ‘Religion’ refers to one’s views of his relation to his Creator (God) and to the obligations they impose of respect and worship for His Being and character and obedience to His Will.”

When a worshipper observes the forty-one days ‘Vratham,’ the worshipper excludes himself from the females in their home. 

The “Vratham” consists of:

• Abandonment of all kinds of physical and sexual relationship with the husband/wife;
• Abandoning all the intoxicating items including alcohol, cigarettes, food which is tamasic and drugs;
• Existing alone and excluding oneself from the family members and staying in an isolated room or a separate building;
• Abstaining from meeting with women in day to day basis, which also includes an individuals’ daughter or sister or any other female family member;
• Making one’s own meal; 
• Walking barefoot;
• Undertaking cleanliness, which includes taking a bath twice a day before doing puja;
• Wearing upper garments and black-clothed mundu;
• Consuming just one meal a day.

After the 40 days of Vratham, on the Forty-first day, after Prarthana, the devotee carries the stimuli and begins the journey of worshipping the Lord Ayappa by climbing the eighteen stairs for darshan in ‘Sannidhanam’ the process includes a walk, barefoot from River Pampa into the dense forest for thirteen kilometers which is 3000 feet to the Sannidhanam. In the Chronicle mention has been made about the tradition and practice predominant at Sabarimala Temple. Reference was made to the subsequent passage from the review: “…old women and young girls may come to the temple, but those who have attained puberty and to a particular period of life are forbidden to approach or enter, as all sexual intercourse in that vicinity is averse to this deity…”

There are few essential elements for a custom to be termed as valid among which time immemorial is a must. It has to be morally and ethically correct and in accordance with the law. It has to be reasonable and continuous. All the customs and traditions have been followed properly at the temple since time immemorial and continuously. The restriction on entering of female class in Sabarimala is not entire or worldwide as it is restricted to a specific group based on their age in one specific temple, only with the view to preserve the character of Lord Ayyappa. Young girls below the age of ten years and women above the age of fifty years are allowed to worship at Sabarimala Temple. The practice is crucial to preserve the holy and pure form and eccentric of the deity. 

Legality of Sabarimala Temple 

All the criticisms and objections that were voiced against this custom were not raised by the believers of Lord Ayappa whereas by the social activists. There are about one thousand temples devoted to the puja of Lord Ayyappa, where Lord Ayyappa is in a different form than that of the ‘Naishtik Brahmachari.’ 

In those temples, the method of prayer differs from Sabarimala Temple, since Lord Ayyappa has manifested himself in a different form. 

The restriction on women in approaching the temple is a portion of the vital practice of the Temple, and the journey is observed by the worshippers. The main intention is to keep the pilgrims distracted from anything that is related to sexual presence because the vital aim of this journey undertaken by the worshippers is to attain the successful practice of spiritual self-actualization.

This custom is violating women’s right to gender equality- if, as a class, females were prohibited or banned from entering, it would refer to social biases and discrimination. Nevertheless, the present scenario is way different than that. Young females below the age of ten and women above fifty are allowed inside the temple to offer their puja. Moreover, there is no kind of restraint on women to enter in the other temples. Young females below the age of ten and women above fifty and male of the same group of age have an even handed connection with the motive pursued to be accomplished, i.e., to protect the character and appearance of the deity as a ‘Naishtik Brahmachari,’ i.e., holy and marvelous and protect the atonement observed by the worshippers of Lord Ayappa.

Hence, permanent restraint on the female class per se does not exist. These practices are reliable with the ‘Nishta’ or ‘Naishtik Buddhi’. Since it’s the vital reason behind the tradition it can be said that there is nothing to offend the dignity of the female class as there is no violation. In the case of V. Devaru & others. vs Mysore & Ors. It was said that: “The Gods have distinct and unique forms attributed to them, and their worship at home and in temples is intended as a way of achieving salvation.”

In Tilkayat S.G. Maharaj et cetera. vs State of Rajasthan & others., the importance was laid “on the method of worship adopted as his devotees worshipped Lord Krishna in the form of a child. Religion does not just lay down a code of ethical rules for its devotees to accept but also comprises rituals and observances, ceremonies and modes of worship which are regarded as integral parts of the religion.” It depends on the judgment in V. Devaru & others. vs Mysore & Ors Case, it was contended that “religion, in this formulation, is a much broader concept, and consist of:

• Ceremonial law regarding the construction of Temples;
• Installation of Idols therein;
• Place of the consecration of the principal God and Goddess;
• Where the idols of other Devatas are to be installed;
• Conduct of worship of the deities;
• Where the worshippers are to stand for prayer;
• Purificatory ceremonies and their method of performance;
• Who is entitled to enter for worship; where they are allowed to stand and worship; and, how the worship is to be conducted.”

Respondents categorically asserted that the worshippers of the deity establish a denomination based on religion that follows the ‘Ayyappan Dharma’, where men pilgrims are known as ‘Ayyappans’ and women pilgrims below ten and above fifty are called ‘Malikapurams.’ A believer has to abide by the centuries-old traditions of Sabarimala Temple if he is to worship the “pathinettu padika” and enter into the Sabarimala Temple. There is a set of faiths and beliefs of the ‘Ayyappaswamis,’ and the group of the believers of the deity creates a separate denomination based on religion which has different and unique practices. 

The following opinion from the obiter dicta of Dr. Subramanian Swamy vs State of Tamil Nadu & others was based upon: “The statement that Dikshitars are a denomination based on religion or Sec. thereof is an assertion of their status and making such declaration is, in fact, a judgment in rem.”

Constitutional Rights

Applicability of Article 25

Art. 25 of the Indian Constitution ensures to “all persons the freedom of conscience and the right to freely confess, practice, and preach religion.” However, this is topic to public law, morality and well-being, and the other statutes of Part III of the Constitution.

The power to move the SC under constitutional remedies (Art. 32) for infringement of FR has to be based on an argument that the Petitioners’ rights to pray and worship in Sabarimala have been infringed. To examine the validity of a denomination based on religion, at the example of an association who are “involved in social developmental causes and activities specifically activities regarding women empowerment and making them conscious of their rights would need the Court to decide religious questions at the request of people who do not pledge to this belief. The freedom to worship and pray, asserted by the Petitioners, has to be established on the basis of the claim of a belief in the particular manifestation of the numen in this Holy place.”

Justice Indu quoted that “The absence of this bare minimum terms must not be seen as a sheer technicality, but an indispensable element to maintain a challenge for impugning practices of any religious group, or denomination. Allowing public interest litigation in ethical issues would open the floodgates to intruders to question and object religious beliefs and practices, even if the petitioner is not a believer of a particular religion or a devotee of a specific temple. The risks are even graver for religious minorities if such petitions are entertained.”

Art. 25(1) talks about “every individual the right to freely profess, practice, and propagate his/her religion. The right of a person to worship a particular God and Goddess, under the doctrines of that faith or Temple, is protected by Art. 25(1) of the Indian Constitution.”

In the present case, the pilgrims of this Temple believe in the manifestation of Lord Ayyappa as a ‘Naishtik Brahmachari.’ The worshippers of this Temple have not challenged the practices followed by this Temple, based on the essential characteristics of the deity. 

In the case of H. M. of Nurenburg vs Superintendent, Presidency Jail, Calcutta & others, it was held that “a person could impugn a particular law under Art. 32 only if he is oppressed by it.”

Precedents under Art. 25 of the Indian Constitution have raised their voice against the actions of the state and not been reduced in a Public Interest Litigation. A descriptive list of such cases is provided below:

1. In the case of Commissioner, H. R. Endowment, Madras, the court inferred Art.s 25 and 26 of the Indian Constitution in charge of managing its affairs. 
2. In Sri V. Devaru & Ors.., the question of whether the rights under Art. 26(b) is subject to Art. 25(2)(b) was in question who belongs to the sect aka Gowda Saraswat Brahmins.
3. In the case of M. Motidas vs S.P. Shahi, the SO In Charge of Hindu Religious Trust & others, “the Constitutional validity of actions undertaken by the Bihar State Board of Religious Trusts under the Bihar Hindu Religious Trusts Act, 1950, was considered as being violative of the Fundamental Rights of Mahants of specific Maths or Asthals guaranteed, among other things, under Art.s 25 and 26.”
4. In the case of the Durgaha Comm., Ajmer & Anr. vs Seyed Hussain Ali & Ors., “the issue was the Constitutionality of the Durgah Khwaja Saheb Act, 1955, given Art.s 25 and 26, among other things, The Khadims claimed to be a part of a denomination based on religion by the name of Chishtia Cookies.”
5. In the case of Sardar S. T. S. Saheb vs the State of Bombay, the court tested the “Constitutionality of the Bombay Prevention of Excommunication Act, 1949 based because it infringed the Fundamental Rights which were guaranteed under Art.s 25 and 26.”

In a diverse society comprised of people with diverse faiths, beliefs, and traditions, to entertain Public Interest Litigation challenging religious practices followed by any group, sect, or denomination, it could cause severe harm to the Constitutional and secularism of this country.

Applicability of Article 14 

Religious customs and practices cannot be merely tested on the benchmark of Art. 14 and the rationality principles surrounded therein. Art. 25 provides the equal entitlement of every individual explicitly to practice their religion freely. Equal treatment under Art. 25 of the Indian Constitution is based on the conditions by the fundamental views and practices of any religious activities. “Equality in the matters of belief must be seen in the context of the worshippers of the same religion.” The twin-test for determining the validity of classification under Art. Fourteen of the Indian Constitution is:

• The classification must be founded on an intelligible differentia; and
• It must have a rational nexus with the object sought to be achieved by the impugned law.

The difficulty lies in applying the tests under Art. 14 to religious practices, which are also protected as Fundamental Rights under our Indian Constitution. It is not for the courts to examine and determine which of these practices of a faith are to be struck down, except if they are pernicious, oppressive, or a social evil, like Sati.

Applicability of Article 15

Art. 15 of the Indian Constitution “prohibits treatment of persons differently on the ground of ‘sex’ alone. The limited restriction on the entry of women of the specified age-group but in the deep-rooted belief of the worshippers that the deity in the Sabarimala Temple has manifested in the form of a ‘Naishtik Brahmachari.’”

Concerning the right under Art. 15 of the Indian Constitution, the Sabarimala Temple would be included in the expression “places of public resort,” as it occurs in Art. Fifteen clause (2) (b).

“9. Prohibition of discrimination on the grounds of religion, race, caste or sex- The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex or any of them.

• In particular, no citizen shall, on the grounds only of religion, race, caste, sex or any of them, be subject to any disability, liability, restriction or condition concerning:

1. Access to the shops, public restaurants, hotels and places of public entertainments, or
2. The use of wells, tanks, roads, and places of public resort maintained wholly or partly out of the revenues of the State or dedicated to the use of the general public.
3. Nothing in this Art. shall prevent the State from making any special provision for women and children.”

Applicability of Article 17

The aim and intention of Art. 17 were to prohibit untouchability based on ‘caste’ in the Hindu religion. No kind of discrimination either on the basis of caste or religion is practiced at the deity. The traditions followed by the pilgrims at Sabarimala do not flow from any work related to untouchability under Art. Seventeen. The centuries-old tradition is not the basis of any kind of so-called impurity. 

“The preposition of the Petitioners that the restriction imposed on the entry of women during the notified age group amounts to a form of ‘Untouchability’ under Art. 17 of the Constitution is liable to be rejected for the reasons stated from now on. All kinds of exclusion would not tantamount to untouchability. Art. 17 refers to the practice of untouchability as committed in the Hindu community against Harijans or people from depressed classes, and not women, as contended by the Petitioners.” 

Applicability of Article 26

Art. 26 of the Indian Constitution guarantees the freedom to every denomination based on religion thereof, the right to establish and maintain institutions for religious or charitable purposes, and to manage their issues in matters of religion. 

In the case of S.P. M. v. Union of India & others., this Court, while relying upon the judgment in Commissioner, Hindu Religious Endowments, held that “the words ‘denomination based on religion’ in Art. 26 of the Indian Constitution must take their color from the term ‘religion’, and if this is so, the expression ‘religious faith’ must satisfy three conditions: 80. (1) It must be a collection of the individuals who have a system of beliefs or doctrines which they regard as encouraging to their spiritual well-being, that is, a common faith;

2. common organization; and
3. designation by a distinctive and unique name.” 

The Respondents have voiced a plausible & robust case that the pilgrims of the Sabarimala have the characteristics of a denomination based on religious, or sect, for the reasons computed below:

1. “The pilgrims of the deity at Sabarimala Temple constitute a religious creed, or sect thereof, as the case may be, following the ‘Ayyappan-Dharma.’ They are chosen by a different name wherein all-male devotees are called ‘Ayyappans’; all-female devotees below the age of 10 years and above the age of 50 years, are called ‘Malika-purnams.’ A pilgrim on their first trip to Sabarimala Temple is called a ‘Kanni Ayyappan.’ The devotees are referred to as ‘Ayyappa-swamis.’ or ‘Swamis’. A devotee has to observe the ‘Vratham,’ and follow the code of behavior, before embarking upon the ‘Pathinettu-Padikal’ to get into the Temple at Sabarimala.
2. The devotees observe a recognizable set of ideas, customs and usages, and code of conduct which are being practiced since time immemorial and are founded on a common faith. The religious practices being followed in this Temple are founded on the belief that the Lord has manifested Himself in the form of a ‘Naishtika Brahmachari.’ It is for the reason that this nishtha that women between the ages of 10 to 50 years are not permitted to enter the Temple. The practices followed by this denomination based on religion, or sect thereof, as the case may be, establish a code of behavior, which is a part of the vital spiritual discipline associated with this pilgrimage. As per the customs and practices in the Sabarimala Temple, the Forty one-day ‘Vratham’ is a requirement precedent for undertaking the journey to Sabarimala Temple. 

iii. When the former State of Travancore merged with the Union of India, the responsibility of paying royalties for the landed estates was transferred to the Government of India. The Travancore Devaswom Board fulfills the Temple. It does not take funds from the Consolidated Fund of India, which would give it the character of ‘State’ or ‘other authorities’ under Art. Twelve of the Constitution.”

The Constitution promises a place for diverse religions, creeds, denominations, and sects thereof to co-exist in a secular society. The term religious denomination must receive an explanation i.e., in the improvement of the Constitutional object of a pluralistic world.

Rule 3(b)

Sec. 3 of 1965 Act states: 

“3. … n the case of a place of public worship which is a temple established for the benefit of any denomination based on religion or groups or Sec.s thereof, the provisions of this Sec. shall be subject to the right of that group or denomination based on religion or Sec., as the case may be, to manage its affair in matters of religion.”

The pertinent citation of Rule 3 of 1965 Rules is also imitated below: 

“Rule 3. The classes of persons mentioned hereunder shall not be entitled to offer worship in any place of public worship or bath in or use the water of any sacred tank, well, spring or watercourse appurtenant to a place of public worship whether located within or outside the grounds thereof, or any sacred place including a street or pathways, a hill or hill lock, or a road, which is necessary for obtaining access to the place of public worship- (b) Women at such time during which they are not by custom and usage allowed to enter a place of public worship.”

Sec. 3(b) of the 1965 Act states that “every place of public worship that is open for Hindus generally, or to any Sec. or class thereof, shall be open for all Sec.s and classes of Hindus; and no Hindu of whatsoever Sec. or class shall, in any way be prevented, obstructed or discouraged from entering such place of public worship or from worshipping or from offering prayers there or performing any religious service therein, in a like manner and to the same extent as any other Hindu of whatsoever Sec. or class may enter, worship, pray or perform.” 

Sec. 2(c) of the 1965 Act describes “Sec. or class to include any division, sub-division, caste, sub-caste, sect, or denomination whatsoever. Sec. 4(1) empowers the making of regulations for the maintenance of order and decorum in the place of public worship and the due observance of the religious rites and ceremonies performed therein.” 

The Petitioners have not objected to the provision of Sec. 3 as unconstitutional on the basis of any ground. The provision to Sec 3 makes immunity in cases of denomination based on religions or sects as to regulate their affairs in issues of religion. “The argument of the Petitioners that Rule 3(b) is ultra vires Sec. 3 of the 1965 Act fails to take into consideration the provision to Sec. 3 of the 1965 Act. Sec. 3 applies to all the places of public worship, while the clause applies to temples founded for the benefit of any denomination based on religion or sect thereof. Hence, Rule 3(b) is not ultra vire.”

Essential Practises Doctrine

This Court has applied the ‘essential practice’ which provides security to religious practices. ‘Essential practice’ test was put up in Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt. The Court drew on the words “practice of religion” in Article 25(1) of the Indian constitution to hold that it keeps safe not only the rights of the religious belief as well as the tasks done in the endeavor of a religion. 

The ‘essential practices test’ was recapped in Ratilal Panachand Gandhi vs. The State of Bombay and Others., where the small clarity of “religion” specified by the Bombay HC was discarded. It was apprehended that all religious practices or performances of acts in pursuance of religious beliefs were as much a part of religion, like faith or belief in particular doctrines. 

In Durgah Committee, Ajmer and Anr. vs. Syed Hussain Ali & Others, the ‘essential practices test’ was talked about by a Constitution Bench in the following way:

“33…While we are dealing with this point it may not be out of place incidentally to strike a note of caution and observe that in order that the practices in question should be treated as a part of the religion they must be regarded by the said religion as its essential and integral part;… Similarly, even the practices though religious may have sprung from merely superstitious beliefs and may in that sense be extraneous and unessential accretions to religion itself. … in other words, the protection must be confined to such religious practices as are an essential and an integral part of it and no other.”

The Court declared the ‘essential practices test’ which was discussed in the past conclusions in Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, and Ratilal Panachand Gandhi v. The State of Bombay & Ors. Insofar as it underlined the self-governance of religions to recognize fundamental or basic practices, in Tilkayat Shri Govindlalji Maharaj, etc. v. State of Rajasthan & Ors., it was clarified that courts would intervene where conflicting evidence is produced in respect of rival contentions as to competing for religious practices. 

The method to check the required practice test would be about the practices that have been in place since ancient times, which would have been written in the religious texts of this temple. If any practice in a specific temple can be traced back to antiquity and is inextricably linked to the temple, it should be an important religious practice of that temple.

The said restriction has been consistent, followed at Sabarimala Temple, as is borne out from the Memoir of the Survey of the Travancore and Cochin States published in two parts in 1893 and 1901. In this case, the character of the Sabarimala temple is distinctly based on centuries-old religious practices followed to preserve the manifestation of the deity and the worship associated with it. 

Conclusion

Sabarimala is the red-hot debated topic; still after the Supreme Court’s verdict, the matter does not seem to be find a solution. The verdict to allow women of age 10-50 years to go inside the temple has troubled the devotees leading to protest now-a-days but, the moment has come which requires resolving the issue with diligence and finding a solution which is in the middle path. Nowadays, it is the right time for everyone to let go of the narrow-minded feelings of fundamentalism and work together. The dissenting opinion of Justice Indu Malhotra must be respected as it is right to profess religion as it was not the whole class of females who were discriminated against for no good reason and were considered impure because of their biological menstrual feature. 

It is greatly believed that the verdict of the Supreme Court which allowed women to go inside Sabarimala was acceptable of the constitution and in favor for the public at large as discrimination did not take place. The Supreme Court noticed that disallowing women of a particular age at Sabarimala temple is based on the “patriarchal” belief that the dominant status of a man in society makes him capable of performing austerity. The Constitution Bench in this case was lef by Chief Justice Dipak Mishra said the court could not accept a method mired in patriarchy and fanaticism. The ban seems to have emanated from the “paternalistic notion” that women cannot perform the penance of Forty one days. 

Disallowing menstruating women which were considered ‘impure’ could lead to the form of untouchability. Thus, the critical question arises whether the verdict given by the supreme court is reformative or disruptive? By disallowing females of a particular age visiting the temple, the society supports adamant taboos about purity and pollution. By demolishing these types of rules, we gently strip society of the power to announce someone ‘impure’ because of birth or menstruation. 

Dr B. R. Ambedkar once argued that by not allowing untouchables to enter religious places was a powerful method of increasing the social discriminations against them. The court should see this as an opportunity to re-examine and reform the historical shortcomings if there are any. The court should see beyond the essential practices doctrine and look this case which denying women not only of their rights to freedom of religion but also of equal rights and access to public places. 

The main reason for not allowing the women of a particular group to enter into the temple was because The idol of Lord Ayappa in Sabarimala is known to be a symbol of Naishtika Brahmachari(celibate). Article 25 (2) which throws “open public Hindu religious institutions to all classes and sections of society can be applied only to social reforms, and it does not apply to matters of religion covered under Article 26 (b) of the Constitution.” Article 26 (b) provides “the right to every religious denomination to manage its affairs in matters of religion.” The Court in Ritu Prasad Sharma vs State of Assam (2015), held that “religious customs which are protected under Articles 25 and 26 are immune from challenge under other provisions of Part III of the Constitution.”

The main question that remains is that is it patriarchy or just a custom? Is there any discrimination against women even though women above 50 years are allowed to approach the temple? The five-judge bench gave their judgement with a 4:1 majority and yet there have not been any code of conduct set up for women to enter the temple for their safety. Reactions to the ban lifting are not what the citizens were expecting when they wanted to remove the restriction. Even today, when a woman enters that temple, she does not feel safe. How is someone supposed to worship when they are not peaceful? 

Bibliography

Cases 

1. Young Lawyers Association & Ors. v. State of Kerala & Ors. SC (2018) 
2. Ratilal Panachand Gandhi v. The State of Bombay & Ors. (1954) SCR 1055: AIR 1954 SC 388
3. Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt 1954 SCR 1005
4. Tilkayat Shri Govindlalji Maharaj etc. v. State of Rajasthan & Ors.
5. Ratilal Panachand Gandhi v. The State of Bombay & Ors. AIR 1954 SC 388
6. S.P. Mittal v. Union of India & Ors
7. Sri V. Devaru & Ors. v. State of Mysore & Ors., 1958 AIR 255
8. M. Moti Das v. S.P. Sahi, The Special Officer in Charge of Hindu Religious Trust & Ors. 1959 SC 942, 
9. Durgah Comm., Ajmer & Anr. v. Syed Hussain Ali & Ors 
10. Sardar Syedna Taher Saifuddin Saheb v. the State of Bombay
11. H. Muller of Nurenburg v. Superintendent, Presidency Jail, Calcutta & Ors. AIR 1955 SC 367
12. Dr S. Swamy v. State of Tamil Nadu & Ors
13. Sri V. Devaru & Ors. v. State of Mysore & Ors
14. Tilkayat Shri Govindlalji Maharaj etc. v. State of Rajasthan & Ors AIR 1963 SC 1638
15. S. Mahendran v. The Secretary AIR 1993 Ker 42
16. Riju Prasad Sharma & Ors. The State of Assam & Ors(2015) 9 SCC 461 

Statutes

1. Rule 3 (B) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965
2. Constitution of India (Art.s 14, 15, 17, 25 and 26)

Literature and Books

Memoir of the Survey of the Travancore and Cochin States, Lieutenants Ward and Conner (First Reprint 1994, Government of Kerala) at p. 137

1. H.M. Seervai, Constitutional Law of India: A Critical Commentary, Vol. II (4th Ed., Reprint 1999), at Pg. 1274, para 12.35.
2. Draft Constitution of India, Drafting Committee of the Constituent Assembly of India (Manager Government of India Press, New Delhi, 1948). 

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 Srishti Pandey.

What constitutes the Indians into a nation? Quoting Ernest Renan, “not speaking the same tongue or belonging to the same ethnic group, but having accomplished great things in common in the past and wish to accomplish them in the future.”

India became a constitutional entity post the enactment of the 1947 Independence Act, and after the accession of the Indian states to the dominion. On 26 November, 1949 this new constitutional entity declared itself a ‘Sovereign Democratic Republic’ and the People of India enacted, adopted and gave themselves the Constitution. The Constitution of India is the grundnorm, and whoever constituted one of the people of India when this Constitution was adopted was considered as a member of the new State. These people associated amongst themselves to form a nation. In this context, the Constitution confers certain fundamental rights upon the ‘citizens’ of the country, whereas certain rights upon ‘all persons’.

A citizen is recognized in common parlance as the status which is conferred upon a person and which bestows upon him the rights conferred as a legal member of a sovereign state or a nation. Nationality must be distinguished from citizenship and these two terms cannot be used interchangeably. Nationality connotes to a person’s country of birth, whereas citizenship is affiliated to a person’s registration as a citizen and which is recognized by the government of the respective country. The Constitution of India (Part II) and The Citizenship Act, 1955 are considered as completely exhaustive of the citizenship provisions of this country.

Before the Constitution of India came into force in 1950, the provisions regarding the initial citizenship were brought into force from 26th November, 1949 (Articles 5 to 9), except in the state of Jammu and Kashmir, wherein the provisions were made applicable from 26 January, 1950.

The test adopted for citizenship included the nexus of the individual with the Union: by birth, descent or domicile and the additional requirement that he has not voluntarily acquired the citizenship of another country. For the citizenship of migrants to and from Pakistan special provisions were made. The provisions of Citizenship in the Constitution are of a limited character. Parliament was given plenary power to make laws with regard to citizenship and on 30 December, 1955, the Parliament enacted the Citizenship Act of 1955 for the purposes of acquisition and termination of citizenship. The act is based on the British Nationality Act, 1948 with certain essential variations. 

Several debates regarding citizenship and its acquisition have time and again arisen in the nation. A recent amendment to the Citizenship Amendment Act has been in furor for the past few days. The 2019 amendment to the 1955 Act has been termed by critics as the reason for public unrest and violence in various states across the country. The amendment is still in its nascent stage, a judicial review is still pending. 

Another reason for unrest which has been highlighted is the nationwide implementation of NRC (National Register for Citizenship) and its combined reading with the Citizenship Amendment Act, 2019 (hereinafter referred as the CAA). To understand this debate it is of utmost importance to understand the law behind the bill, the legislative intent and the debate with regard to the same in the parliament. For understanding the ramifications of the NRC it is important to understand the intent with which it was implemented in Assam in the first instance.

Law with regard to Citizenship

A study of law of citizenship and aliens of a country gives the contours of an individual’s rights, privileges, liabilities and disabilities within and beyond the territory of a state. The Constitution of India, 1950 and the Citizenship Act, 1955 are the exhaustive laws with regard to citizenship in India. The residents of India can be divided into- citizens and aliens. Citizens have the rights conferred to them which are not available to aliens like the right to vote, contest elections, etc. Part II of the Constitution of India confers citizenship. Aliens are further divided into legal aliens and illegal aliens. The term alien is in consonance with foreign national. Typically, according to lexicology, a legal alien is a foreign national who has been permitted by law to be in the host country, whereas an illegal alien or an illegal migrant does not fulfill certain requirements under the law, and hence; is not permitted to be in the host country and is therefore termed as an illegal migrant. Another classification of an alien is an enemy alien, who is a foreign national with whose country the host country is at war. 

Articles 15, 16, 19, 29 and 30 of the Constitution of India guarantee rights to citizens of India. Whereas the other rights under Part III of the Constitution are guaranteed to every person in India. Under Article 11 of the Constitution of India citizenship matters are to be regulated by the Parliament. According to the 1955 Act, citizenship can be acquired by birth, descent, marriage, acquisition of foreign territory by India (eg. Pondicherry) and naturalization. For the purposes of naturalization, the person should have renounced the previous citizenship and must have stayed in India for fourteen years of which eleven years should be cumulative.

Illegal Migrants and Citizenship

One qualification for acquiring citizenship through birth, descent, registration, naturalization is that the person should not be an illegal migrant. According to section 2 (1)(b) of the Citizenship Act, 1955 an “illegal migrant” means a foreigner who has entered into India (i) without a valid passport or other travel documents and such other document or authority as may be prescribed by or under any law in that behalf; or (ii) with a valid passport or other travel documents and such other document or authority as may be prescribed by or under any law in that behalf but remains therein beyond the permitted period of time. Hence, illegal migrants are per se not eligible to apply for Indian citizenship. 

Refugees, illegal migrants and the Refugee Convention 1951: A refugee is someone who has been forced to flee his home because of war, violence or persecution. Official organizations like the UNHCR determines whether a person seeking international protection meets the definition of a refugee based on a ‘well-founded fear’.

There is a difference between a migrant and an immigrant. Where illegal ‘immigration’ refers to the migration of people into a country in violation of its immigration laws, illegal ‘migration’ is involuntary and is closer to the definition of a refugee. When the host country grants a legal protection status, these illegal migrants are termed as refugees. India plays host to approximately 332,300 refugees and is the second largest refugee-receiving country in South Asia, after Pakistan. India’s multi-ethnic, multilingual society has made it an attractive destination for a lot of asylum-seekers. Tamil refugees from Sri Lanka, the Jumma people from Bangladesh, the Chin and other tribal refugees from Myanmar, refugees from Afghanistan, Iran and even Sudan comprise the bulk of India’s refugee population.The government officially recognizes Tibetan and Sri Lankan Tail refugees and provides them protection; refugees from other states are left to the UNHCR in New Delhi. It is important to note that India is not a signatory to the Refugee Convention.

India has an ad-hoc system of refugee determination, deportation and protection. In the judgment of the Supreme Court in NHRC v. State of Arunachal Pradesh, it was held that all refugees, within the territory of India are to be guaranteed the right to life and personal liberty enshrined under Article 21 of the Constitution of India. The government has not yet signed the convention which was initially formulated in the aftermath of the World War for the European refugees. However, after the 1967 protocol to the convention it is open for signature and ratification for others as well. 

Also, it is worth mentioning that on the 25th of December, 2019, the Calcutta High Court stayed the deportation of a Rohingya Couple to uphold the spirit of humanity. A writ petition challenging the decision of the center for the deportation of 40,000 Rohingya Muslims who have taken refuge in India to escape persecution in Myanmar is pending before the Supreme court. The Rohingyas are stateless in view of Myanmar having disowned them.

Jus solis and jus sanguinis

Jus solis refers to the law of the soil whereas jus sanguinis refers to the law of the blood. The principle of jus solis is followed in countries like the US as compared to jus sanguinis which is followed in India. This means that a child born in the US soil is considered as a citizen of the state, irrespective of whether his/her parents are citizens of the US or not. However, with regard to the Indian principle, no matter where a person is born, but if he/she has a nexus to India through blood, he/she is considered as an Indian citizen.

2015 and 2016 notification

The illegal migrants may be imprisoned or deported under the Foreigners Act, 1946 and the Passport (Entry into India) Act, 1920. While the 1946 Act regulates the entry into and exit of foreigners into India. The 1920 Act puts forth that no foreigner can enter into India without a passport. In 2015 and 2016 the Central Government issued two notifications exempting certain group of illegal migrants from the provisions of the 1946 and the 1920 Acts. These groups included Hindus, Sikhs, Buddhists, Jains, Parsis and Christians of Afghanistan, Bangladesh and Pakistan who arrived in India on/before December 31, 2014. This implies that these groups of people will not be deported or imprisoned by the government authorities for the reason of insufficient documentation.

The Bill and its provisions

The bill’s objective is that the minorities from three countries facing religious persecution, i.e. Afghanistan, Bangladesh and Pakistan which are notably Islamic states to not be treated as illegal migrants. Ergo, they can apply for citizenship of India by registration or naturalization. These minorities shall be deemed as Indian citizens from the day they enter into India. 

If their case is pending in-front of the foreign tribunal, the case shall lapse and they will be given citizenship. In order to get this benefit they must be exempted from the Foreigners Act, 1946 and the Passport (Entry into India) Act, 1920. This is the harmonious construction of the Foreigners Act, 1946 and the Passport (Entry into India) Act, 1920 with the bill. These minorities include Hindus, Buddhists, Sikhs, Jains, Parsis and Christians and they have been exempted from the aforementioned acts via the 2015 and 2016 notifications.

Therefore, the bill (now act) says that, on acquiring citizenship: (a) such person shall be deemed to be a citizen of India from the date of their entry into India and (b) all legal proceedings with regard to migration or in connection with citizenship of such person will be closed.

OCI

An addition has been done with regard to grounds of cancellation of OCI registration: upon violation of any of the provisions of this Act or provisions of any other law for the time being in force as may be specified by the Central Government in the notification published in the Official Gazette the OCI registration of a person can be cancelled; a reasonable opportunity shall be given to such a person. 

However, the bill fails to elaborate what these laws might be. It also does not address the ambiguity that if a person has violated a civil law, for example the Consumer Protection Act, the Contract Act, etcetera, for which civil compensation is required, whether then also his/her OCI registration would stand cancelled. Unskillfulness of the draftsman is pretty apparent on the face of it in this provision which can become a source of massive litigation and can add to the burden of the judiciary.

Exceptions carved out under the bill

The amended act adds that the provision on citizenship for illegal migrants shall not apply to the tribal areas of Assam, Meghalaya, Mizoram or Tripura as included in the Sixth Schedule to the Constitution and the area covered under “The Inner Line” notified under the Bengal Eastern Frontier Regulation, 1873.’ Therefore, the illegal migrants who are granted citizenship cannot settle in the tribal areas under the sixth schedule. The bone of contention with regard to this provision lies in the fact that the entire region of Assam is not under Schedule 6 to the Constitution. 

With regard to the inner line permit notified under the Bengal Eastern Frontier Regulation, 1873, if any Indian has to enter the area of Arunachal Pradesh, Mizoram and Nagaland, that visit is to be regulated by the Inner Line Permit. The amended act does not apply to the aforementioned tribal areas and the area covered under the inner line.

Also, the amended act has reduced the time period required for naturalization, from eleven years to five years cumulatively. 

Arguments in favor of the CAA

1. It is a law to confer, and not to deprive citizenship. It is not applicable to already existing citizens.
2. The three tests under Article 14, i.e. reasonable objective must be sought (which is religiously persecuted minority protection), intelligible differentia (affirmative action or positive discrimination in this case) and a rational nexus between ‘those who are included’ and ‘those who are not’ is present. In this argument, it can be contested that Ahmediyas, Sri Lankan Hazaras, Shias are not given protection under the Act and therefore it is discriminatory. However, these strands are subject to ethnic violence. The difference between religious persecutions and those subject to ethnic violence is to be noted. The Bill provides protection to those minorities which are religiously persecuted. 
3. Indian Muslims are in no way affected by the amended act, they are and they will continue to enjoy the benefits as legitimate Indian citizens.
4. The basic structure of the Constitution which includes secularism is further strengthened by the inclusion of minorities. 
5. Article 15 is not violated as it only applies to citizens of India.
6. The amendment considers the interests of the north-eastern states, by excluding the tribal areas under the sixth schedule from the provision of citizenship for illegal migrants.
7. With regard to legislative competence, it is submitted that Article 11 confers upon the Parliament plenary powers to make laws with regard to citizenship.

Arguments against CAA

1. Religion cannot be the basis of classification of citizenship. The classification made by the bill is a religion based classification. Hon’ble Home Minister highlighted that the significance of the bill lies in the fact that the country was partitioned on the basis of religion. However, what he fails to take cognizance of is that Pakistan was created on the basis of religion, not India. India stayed secular.
2. Article 14 is violated: Judicial scrutiny of the Article in the past is to be noted to present an argument in this respect. The case law of Anwar Ali Sarkar, 1952 held that a yard-stick or measure for the grouping; either of persons in a category or outside a category must be present. In this regard another landmark judgment of the Supreme Court and the verdict given by Justice Indu Malhotra in the judicial precedent that decriminalized section 377 should be highlighted. Hon’ble Justice Malhotra held that where legislation discriminates on the basis of an intrinsic and core trait of an individual, it cannot form a reasonable classification based on an intelligible differentia. Therefore, there must be a yardstick to differentiate between those included and excluded from the group, and that yardstick must be reasonable. Justice Nariman in his concurring opinion in the case of Shayara Bano, identified the doctrine of manifest arbitration as a facet of Article 14.

Taking into account this jurisprudence, first, differentiation on the basis of country based classification is not justified. Why were Sri Lanka and Myanmar persecuted minorities not included? These countries are also neighboring countries; Myanmar also shares a border with India. Also, if it is argued that countries which were a part of undivided India are included then, What was the basis of including Afghanistan in the list? Lastly, if it is argued that the degree of harm is considered, then Why Myanmar, which is home to the world’s most persecuted minorities (Rohingyas) not included?

Second, the law is not clear on whether the classification is based on singling out persecuted religious minorities or it has the possibility of including victims of ethnic violence. If religious persecution of minorities is the basis of classification then, it can be argued that Tamils are also persecuted in Sri Lanka, which has Buddhism as a state religion (Theravada Buddhism). Why they are not included in the Act?

Hence, the manner in which the countries are chosen and certain countries which are excluded is not clear. Also, critics are comparing the law to the Israeli Law of Return. The Israel Race Law recognizes Israel as the natural home of all Jews and provides similar protection to Jews. Critics are also arguing that why are Jews and atheists not included? The manner of classification is, as such termed arbitrary. More clarity on the provisions was required by the legislature.

1. Noted senior advocate Harish Salve, has said that the CAA is a policy decision of the government and hence, the Supreme Court cannot intervene in the same, however, a very respectful disagreement is placed on this point. The Supreme Court has in the past intervened in the policy of the government. The case of the cancelling of the 2G spectrum licenses bear testimony to this fact.
2. Last, Article 11 is not above the basic structure of the constitution. Secularism is the basic structure of the constitution and as such any classification based on religion and without any reasonable nexus must be declared as unconstitutional.

CAA and foreign policy blunders

The Home Minister of Bangladesh and the Foreign Minister of Bangladesh cancelled their visit to India on account of the citizenship status given to the illegal migrants who have fled Bangladesh. It is to be noted that India has had amicable relations with Bangladesh in the past and has been one of the few states with which the country has had stable relations. 

Second, Amit Shah’s statement that, “Muslims are not persecuted in Pakistan” runs contrary to the stand which India has taken at United Nations on the persecution of Balochis at the hands of the Pakistani Army and the brutal history of human rights which India has time and again iterated that Pakistan has. India has also maintained that Pakistan persecutes its own people. The world leaders might not be sympathetic to India in the future because of such irregular stands taken by the government of the country. 

Furthermore, by not providing the Hazaras protection, India has possibly lost a diplomatic asset for the negotiation with the Talibans, who are deemed to come into power in Afghanistan. Taliban is currently in talks with the US and the five permanent members of the Security Council. 

NRC+CAA

Assam saw a huge influx of migrants from 1979. In respect of this, chaos has prevailed in the region for a long time. In the aftermath of this commotion the Assam Accord, 1985 was signed. According to this the illegal migrants were deported from the state after being identified. The cut-off date was kept as 25 March, 1971. This date was chosen because of Operation Searchlight, which was carried out in the then East-Pakistan, now known as Bangladesh. During this time many migrants came to India, because of the war for the liberation of Bangladesh. The NRC list which was published in this regard did not include nineteen million people. Out of these nineteen million people, five to six lacs were Bengali Hindus. 

The government has announced recently that the NRC is to be implemented nationwide. Under the NRC Indian Muslims including other citizens will have to prove their citizenship. If the CAA is scrutinized in isolation, per se there is no harm because it grants citizenship and does not take away any existing rights of the citizens of the country. However, the combined effect of the NRC and CAA, as the critics mention has the potential effect of disenfranchising the Muslims of their proprietary and other interests and rights in the country. More clarity than the thirteen FAQs as published by the government is required on this point.

Conclusion

At this stage it is important to recognize as to who shall franchise the governance of this democracy which has devolved upon us citizenship in the first place, of which we are the nothing but a fraction. The divestment of rights in the hands of the few must at all costs be avoided. The recognition of the state as a secular state should not have to be emphasized but must be inbuilt in the fabric of the nation and should stand tall and honored. Sight must not be lost of the fact that there is a chasm of daylight between inheriting citizenship by blood and inheriting the nation by blood. The unskillfulness of the draftsmen must at all costs be avoided, as it can lead into the disaster that is happening across the nation today. However, it must also be noted that the judicial scrutiny of the bill is yet pending and a much needed judicial activism is yet to be witnessed. The very fact that arguments can be made in favor of and against the bill, presents that it needs a certain degree of amendment. Here a little, there a little.

Yours faithfully,

Neither a leftist nor a Bhakt,

A concerned law student.

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

The post Law with regard to Citizenship: To be or not to be? appeared first on iPleaders.

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

There are about 20,000 lawyers in India, according to our estimate, who earn at least 5 lakh or more per month. In India.

That is just 1% of all lawyers. For the limited purpose of this write up, let’s call them the Winners.

Then there are a lot of other lawyers who are not Winners yet, but they are fighting to get their rightful place as a successful lawyer. Let’s call them Challengers.

I assume that my readers are the Challengers. Why would you spend your time reading an article like this if not you are driven by an intention to do more, get better, learn more and explore how far you can reach? Most of my regular audience belongs to the Challenger category.. 

And there is the great unwashed masses of lawyers, who live in a very different world. In their world, law is a really terrible profession, in which it is very hard to make ends meet. It is their reality, and they live in it, although they have never really tested how true their belief system is.

Their belief that they cannot succeed because there are not enough opportunities and because the profession is so unfair is so strong, and so often reinforced through the conversations around them, that they cannot even for a moment imagine anything outside that. 

Only for the limited purpose of making a point that I want to make here, and with no malice or intention to insult them, let’s call them the Losers.

They are Losers not because of circumstances alone, but because most of them have done precisely little to overcome those circumstances. 

If you show a Loser the opportunity, and how the Winners are doing so well through hard work, initiatives, brilliant strategy, and enterprise, the Loser would point out something. Oh but he is not a first-generation lawyer! Or something like that.

Ok, but what about the first generation lawyers who are killing it? I can give you hundreds of examples! No, but they went to NLU / Oxford etc.

Ok, I will show you those who didn’t go to any brand name college and still doing very well. Oh, but they got lucky.

Whatever. I have tried, trust me. It is next to impossible to convert a Loser to a Challenger. It is a waste of effort. 

I would rather work with those who already have dreams in their eyes and the hustle in their feet. I would rather work with people who are hungry and desperate and impatient for success. 

That is my tribe.

Let’s get back to the Winners. The small minority of lawyers who are the champions of the profession. What is different about them?

Are you someone who wants to be one of them?

Let’s say you want to build a law firm of your own. 

Or that you want to be an ace arguing lawyer earning 5 lakhs per month from your own clients. 

Maybe you want to start a legal enterprise, startup style.

These things are not commonplace aspirations. Such a result is an outlier result. There are approximately 20 lakh lawyers in India as per the BCI chairman. Out of that, just about 1% manage to reach a position where they can ask for a premium for their legal work. A vast majority of lawyers live in poverty!

So what separates the top 1% from the rest?

I have written a lot on that. You could download and read this book for some clues.

Or you could learn how to get a job in a big law firm, which would lead to you eventually growing in your career and reaching that mark of economic success.

However, whatever you may do, one of the hardest things you will have to do is to learn how to stop thinking like the mass. You have to stop imbibing and living in the reality of the Losers. You can’t afford to if you are a Challenger. 

Click Above

Losers want to convert you into a Loser. They want to prove your wrong, they want you to fail, they want you to give up, because what can be a better justification for their lack of initiative and poverty of imagination.

Don’t fall into the Loser trap.

Wisdom of the masses cannot give you outlier, unusual, extraordinary success. If you do what everyone is doing, the best you can hope for is to to get an average result, and most likely fare below average. 

If you follow the masses, you will be crying about how senior lawyers are unfair and do not teach you or help you. You will wonder how it is possible to get your first paying client or first corporate client.

You will give excuses like I-am-preparing-for-judiciary-exam while all you are doing is avoiding admitting to yourself that you are screwed and you don’t know how to proceed.

You will think that the problem is that you didn’t go to an NLU although NLU students have the same problems more or less. 

Let me tell you a secret, 90% NLU grads are in even bigger problem because they have spent tons of money on fees and the majority are still nowhere close to a decent career path.

You will give in to the myth that you become successful by showing your face in the court to judges and senior lawyers over the years. You will believe that you have to spend 5 years assisting for a senior to learn how to get your way around the court. Or some mumbo jumbo like that.

You will be told that the way to become a sharper lawyer is to read more and more case laws. Ridiculous! This used to be a great advice 20 years back but not anymore, sorry. But older lawyers are yet to stop doling out that advice. 

Anyway, the mass is headed to an economic hell, and digging themselves into a hole. I hope you will not follow them. 

The biggest challenge for you is to avoid the wisdom of the crowd. You need to think with your own brain, and discover the contrarian path if you want outlier success.

And remember, what worked 10 years back is unlikely to work now. You need to discover new opportunities, and there are problems that require urgent solutions in ample numbers in our country. 

You need to find problems worth solving that others are currently ignoring, and then set about solving them in an efficient way, and find how people would realize that you have the solution they need so they will happily part with their money. 

I hope you realize that if everyone knew and could do this, such a thing would not remain an opportunity, but will become a highly competitive sink for energy, effort, and resources. 

You win by being a contrarian. 

You can be a Winner if you go against the flow.

And the only way to succeed in this game is by avoiding the losers. Stay away from them. Associate yourself with Winners and other Challengers.

Do not make the cardinal mistake of surrounding yourself with Losers.

Find your tribe. Go meet the Winners and the Challengers who are making progress. Surround yourself with those people. 

That is one reason why top NLU students do well, because they are surrounded by Challengers, and there are fewer Losers to influence them.

We could help you with finding your tribe. You could join our courses and surround yourself with Challengers. Here are some courses in which we are taking enrollments currently:

DIPLOMA 

Diploma in Business Laws for In House Counsels

Diploma in Companies Act, Corporate Governance and SEBI Regulations

EXECUTIVE CERTIFICATE COURSES

Certificate Course in Advanced Corporate Taxation

Certificate Course in Insolvency and Bankruptcy Code

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

Certificate Course in National Company Law Tribunal (NCLT) Litigation

Certificate Course in Arbitration: Strategy, Procedure and Drafting

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

The post Are you overexposed to losers? appeared first on iPleaders.

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

There was a time when the practice of law was simple, and the formula to make it in life as a lawyer was simple too. It may have taken a lot of time and effort to be successful, but the method was strikingly simple and universally accepted. 

So what was this formula?

It only made sense to learn to do legal work at district courts to start with, and then when you made a name at that level and people began to respect you as a lawyer, you moved up to High Court to try and make it as a lawyer at the High Court level. It was expected that you would have to spend at least 5-10 years at the district court level in order to be ready to take the plunge at the High Court. 

What enabled this jump from the lower court to the higher court, which would often be located in a different city altogether?

Basically, over the years of slogging at the district court, you had to gather enough regular clients who would perhaps need support at the appellate level as their cases moved up to appeal. Also, other lawyers who appreciated and trusted your work at the district court would send you matters when you moved to the High Court.  

When you had spent enough time at the high court and you might be doing well, and you had enough clients giving you work and enough lawyers holding you in high regards, which was likely to take up a couple of decades to achieve, you then moved to the Supreme Court to try your luck there if you still had the appetite for the same.

And it all worked out because your friends and peers from the High Court where you worked and made a name used to send work to you for Supreme Court appeals. 

Else you would hope to either become a judge at the High Court or just practice till you get too old to continue. 

This was the time-tested blueprint for building a stellar legal career that made great lawyers for 100 years at least. 

Unfortunately, this formula does not work anymore. Even if it works, most young lawyers do not have the patience to do things this way. Truth be told, this system favors the older lawyers and makes success difficult for the younger ones. Younger lawyers found that there are many, many other ways to succeed in life as a lawyer much earlier.

Also, the grammar of law practice itself has changed. More than knowledge of law, which used to be knowledge of statutes and case law in the past, there are a variety of skills that are needed to be a successful lawyer. Designing a great customer experience, for example. Ability to negotiate certain complex agreements. Knowledge of a particular industry and relationship with a regulator. Or it could be more technical legal skills, such as structuring a deal, or a holding structure for a business. Or knowledge of international arbitration procedure. Or the ability to explain to a judge why a certain patent should be invalidated in a lucid, non-technical way.

The law firms were not built by following the model I described above. They were built by finding gaps in the market and providing services at a scale to meet the demand-supply gap. 

Similarly, a young lawyer today can attain financial independence and satisfaction of running a profitable practice much faster by doing other things – such as starting his practice in a relatively uncrowded but technical tribunal such as APTEL, COMPAT or TDSAT. They could even work in any tribunal at the local level such as Consumer Forums, or NCLT or REAT and make a great living. 

A young lawyer could also discover any other possible way to find clients or build a reputation directly at a higher court, and do very very well within a couple of years. 

Many lawyers today start their practice directly at the Supreme Court, and it makes immense sense. What is there to learn about district court work that a Supreme Court lawyer needs to know that he cannot learn on his own, one way or the other?

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It makes sense to build a practice right away at a higher court for many young lawyers today, and I have seen many of my seniors and batchmates from college doing exactly that, from very close quarters. 

Here is an alternative formula people regularly use to build an amazing practice at the Supreme Court directly. 

Start by working as a junior of a successful senior advocate at the Supreme Court. They are almost always in desperate need of high-quality juniors due to massive work pressure, and most of them do not hesitate to pay a handsome amount to a deserving junior. The work is very tough, very rigorous,  but very rewarding too. 

If you do a good job and manage to push yourself through the 12-14 hour grind a day for 4-5 hours, these seniors help you by recommending you to various state governments or PSUs or government agencies who are looking to appoint a standing counsel at the Supreme Court. Once you get one or two such appointments, you are ready to hang out your own shingle and start your own chamber practice at the Supreme Court, having the economic security and credibility that comes with representing a government body at the apex court. 

Then you have to find ways to network, market your practice and attract the kind of clients that you need to get in order to get to the next level. This formula has worked wonders for thousands of lawyers doing really well at the Supreme Court as of today.

Most importantly, most of the work has gone away from district courts and found their way into various specialized tribunals. It makes no sense in today’s day and time for lawyers to work their way through the district court and then high court, often at the cost of penury and irrelevance.

Also, whatever goodwill you earn at one place may be lost when you move to the next court!

It is hard to even argue that skills learned at the district court level are transferable if one wants to do other things like appearing before the High Court in specialized areas like prosecuting a patent infringement or getting an arbitrator appointed. 

What is the logic to ask every lawyer to start their practice at the district court, unless we are still paying blind homage to the formula that worked for our previous generation but has stopped mattering any more?

Young lawyers graduating today are already fighting a very difficult battle, primarily because BCI has done a terrible job of regulating ever mushrooming law colleges all over the place that dole out useless education which does not prepare law graduates for the realities of today’s law practice. BCI has done nothing to stop those law colleges from charging exorbitant amounts and does not even update its curriculum quickly enough.

Law schools are teaching the Banking Regulation Act in the name of Banking Law for example, and nobody teaches the IBC, or RBI regulations, or the various statutes used by banks and NBFCs to recover their dues although that is exactly what clients in that sector need from the lawyers they hire!

Law students are still reading English case laws that are a century old, and memorizing sections from the Indian Contract Act for two semesters and not learning how to draft a real contract by the time they graduate. What has BCI done to change that?

The BCI is forced to ask terribly inane questions in the Bar Exam, despite it being an open book exam. And still, it has to allow mass cheating in the exam halls and still, they have to hide the number of people failing, one would presume out of utter shame.

And now they are talking about forcing young lawyers to practice in the district courts mandatorily before allowing them to “access” the Supreme Court and even High Courts? Here is the link.

Such a ridiculous measure will make it even harder for young lawyers with limited means to even attempt doing litigation. Will you be ready to work under a senior in District Court who perhaps is finding it hard to make ends meet and pays nothing to juniors? Things would be even worse than how it stands today if every law graduate wanting to litigate is forced to turn up at the district court first. Would they BCI ensure that they get a living wage while working at such district courts?

The BCI has done enough to hurt the legal profession beyond measure already, one would hope that they will never manage to push this archaic idea down the throats of young law graduates going forward. Apparently, this proposal will be discussed at a BCI meeting in January 2020. Please share this with your young law graduate friends and create some awareness about this travesty before it gains further momentum.

If the BCI truly wants to improve the quality of legal education, a revamp of the legal studies curriculum with a focus on teaching practical skills, having a real bar exam that actually filters incapable lawyers and making sure the law colleges are actually held accountable for the graduates they produce will go a long way in fixing the quality issue in the legal profession. 

And because we do not expect the BCI to fix anything anytime soon, I strongly recommend you check out one of the practical courses at LawSikho that will help you to learn the practical skills you will direly need to succeed in any kind of practice, even at district courts:

DIPLOMA 

Diploma in Business Laws for In House Counsels

Diploma in Companies Act, Corporate Governance and SEBI Regulations

EXECUTIVE CERTIFICATE COURSES

Certificate Course in Advanced Corporate Taxation

Certificate Course in Insolvency and Bankruptcy Code

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

Certificate Course in National Company Law Tribunal (NCLT) Litigation

Certificate Course in Arbitration: Strategy, Procedure and Drafting

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

The post Why the BCI is wrong about its plan to send law graduates for a mandatory stint in district courts appeared first on iPleaders.