Tanya Agarwal, 3rd Year B.A. LLB (Hons), Amity Law School, Delhi (GGSIPU). The following article explores the relationship of states with respect to the oceans and sea under Public International Law.

Introduction

Law of the sea is also known as Maritime law which is that branch of public International Law which regulates the rights and duties concerning the regulation of states with respect to the sea. It governs the legal rules regarding ships and shipping. It is one of the principal subjects of international law and is a mixture of the treaty and established or emerging customary law.

The law of the sea forms the basis of conducting maritime economic activities, the codification of navigation rules and to protect oceans from abuse of power. It covers rights, freedoms and obligations in areas such as territorial seas and waters and the high seas, fishing, wrecks and cultural heritage, protection of the marine environment and dispute settlement.

The genesis of Law of Sea

Grotius also known as the father of modern International law, led to the formulation of maritime law which is one of the recently developed branches of International Law. During the 17th century, the doctrine of “freedom-of-the-seas” emerged wherein it was considered that the seas were free to all nations but belonged to none of them. The Law of the sea has always been in a state of flux, changing and creating a new regime as per the state’s own will.

There existed certain tension between “the free sea” and “the closed sea” which waned for centuries, generally with the powerful states arguing that the sea was free to all, and the smaller States arguing for transnational limitations on what maritime powers could do to navigate the oceans and exploit their resources.

It was during the 20th century due to vast development in the technology and the commerce department, many nations began to make jurisdictional claims so that they could protect their interest and the gradual enlargement of territorial sea initiated the need for the codification of the law to create uniformity.

Over a series of discussions and conferences, four conventions on the law of seas evolved in 1958, namely called Geneva convention on the law of sea developed but the conventions failed to address several issues like the urgent need to regulate the usage of minerals of the deep sea beds and high sea.

In 1982, the third UN conference adopted the Convention on the Law of the Sea (UNCLOS) consisting of 320 articles and 9 Annexes, along with 4 resolution. A significant portion of the convention was a replica of the old Geneva convention however several new factors were also dictated which are as follows:

• It expanded the scope regarding the matters of the new legal regime of the deep sea bed and economic zones.
• The territorial sea now extended up to 12 nautical miles limit.
• In cases of dispute, the convention provides compulsory judicial settlement at the request of one of the parties.
• The convention also describes the formation of an international tribunal of the law of the sea for helping in settlements of disputes.
• The convention also deals with the regime of archipelagic states, the waters between the islands are declared archipelagic waters, where ships of all States enjoy the right of innocent passage.

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Major Maritime zones along with the rights and duties provided under the specific zones

Territorial seas

It is that part of the sea which is directly next to the coastline and bounded by the high seas. Article 2 of the Geneva Convention on the Territorial Sea and UNCLOS Article 3 both express that states exercise sovereignty over this zone subject to the provisions of the respective conventions and other rules of international law. This was intended to highlight that the limitations upon sovereignty in this area set out in the Convention are non-exhaustive. The territorial sea forms an undeniable part of the land territory to which it is bound so that a cession of land will automatically include any band of territorial waters.

According to UNCLOS, it is believed that every coastal state has Territorial sea. The sovereignty of the coastal state extends to the seabed and subsoil of the territorial sea and the airspace above it. The coastal States exercise a wide variety of exclusive power over the territorial sea which depends largely on the municipal law rather the international system. Coastal states can control the entry of foreign vessels from trading or fishing activities to preserve it for their own citizens.

a.  Width of the Territorial sea

Width of the territorial sea up to which the states can exercise sovereignty has been subjected to a long line of historical development. Initially, it started with the “cannon-shot” rule wherein it stated that width requirement in terms of the range of shore-based artillery, however during the 19th century it changed to 3-mile rule by the Scandinavians claimed 4 miles.

The limit to exercise jurisdiction over the territorial sea became clear only after the first world war, Article 3 of the 1982 Convention, however, notes that all states have the right to establish the breadth of the territorial sea up to a limit not exceeding 12 nautical miles from the baselines. This is clearly in line with state practice. For determining the measurement of this range two methods have been laid down which are as follows:

Low water line

It was the Anglo Norwegian Fisheries case which propounded the principle regarding the determination of the baseline w.r.t geographical realities. In this case, the method applied by the Norwegians affected the fishing interest of UK because the straight baseline method applied then created a chance to cover those parts of the sea which belonged to High sea zone.

The court upheld the straight baseline method applied by Norway due to the peculiar nature of its coastline. The method that determines the rule regarding the 12 Nautical miles limit depends mainly on the nature of the state’s geographic position, normally Low water line is preferred however in cases of countries like Norway straight baseline method can be applied.

b. The Right of Innocent Passage

The right of foreign merchant ships (as distinct from warships) to pass unhindered through the territorial sea of coast has long been an accepted principle in customary international law, the sovereignty of the coast state notwithstanding.

UNCLOS  in its Article 19 provides for an exhaustive list of activities for which the passage is considered as innocent, the main factor to keep in mind is peace, good order, or security of the coastal State. Article 24 prohibits coastal States from hampering the innocent passage of foreign ships through the territorial sea unless specifically authorized by other Articles of the LOSC.

Discrimination among other states or cargoes is prohibited for the Coastal States, however, when it is found to be that any foreign Ship has committed any violation of the aforesaid rule of the convention, the coastal states have the power to forbid entry of such ship or take any measures as they deem necessary for their security.

Other aspects of the territorial sea are:

• Internal water

As per Article 8 of UNCLOS, internal waters include that part of the sea which does not belong to either the high seas or the territorial rather covers all the waterways on the landward side of the baseline. One of the major differences between the Territorial sea and the internal water is that there exists no right of innocent passage in case of the former.

• Bays

Bays are one of the major complex issues under maritime laws, it may enclose a line which leaves internal waters on its landward side and provides a baseline for delimiting the territorial sea.

• Islands

The 1958 convention defines Islands consist of a naturally formed area of land, surrounded by water, which is above water at high tide. These islands are capable of forming continental shelf zone, Exclusive Economic zone, Contiguous zone, territorial sea zone however if there is no habitat capable of surviving on an island it may not form EEZ. Where there exists a chain of islands which are less than 24 miles apart, a continuous band of the territorial sea may be generated.

• Archipelagic states: Group of Islands

The states having above such characteristics has sovereignty over the waters enclosed by the baselines subject to limitations created by the provisions of this Part of the convention. These limitations consist of the right of innocent passage for ships of all states, and, unless the archipelagic state designates sea lanes and air routes, the right of archipelagic sea lanes passage through the routes normally used for international navigation.

Contiguous zone

It is that part of the sea which is located beyond and adjacent to the territorial waters of the coastal states. The development of this zone arose due to the need of the state to strengthen its regulation over the territorial sea.

It extends up to 12 nautical miles from the territorial sea, the object of this zone is only for certain purposes as provided in the article 24 of the convention like to prevent infringement of customs, immigration or sanitary laws of the coastal state, or to conserve fishing stocks in a particular area, or to enable the coastal state to have exclusive or principal rights to the resources of the proclaimed zone. The formation of this zone is only for special purposes as prescribed in the convention, it does not provide any air and space rights to the states.

Exclusive Economic Zone (EEZ)

The object for this zone arose due to controversy regarding fishing zones. Due to a lack of regulation of limit regarding fishing zone, states began to claim the wide depth of region under this zone. In the case of Tunisia vs Libya, the court regarded that the concept of Exclusive Economic Zone can be associated as a part of Customary International Law. Article 55 of the UNCLOS describes the extension of this region from the baseline is up to 200 nautical miles from the breadth of the territorial sea.

In the case of Coastal states as per article 56 of the convention, these states have sovereign rights over the Exclusive Economic Zone for the purpose like:

1. Exploiting and exploring, conserving and managing natural resources
2. For the establishment of an artificial island, Marine Scientific research

iii. Other rights as specified in part IV of the convention.

In case of other states, it provides rights and duties of that which can be compared to the high seas such as freedom of navigation, laying of pipelines and submarine cables, they have to keep in mind the rights and duties of Coastal states during the exercise of their own power.

Continental Shelf

This zone arose due to the concept of Geography wherein as per 1982 convention, it includes a natural seaward extension of a land boundary. This seaward extension is geologically formed as the seabed slopes away from the coast, typically consisting of a gradual slope (the continental shelf proper), followed by a steep slope (the continental slope), and then a more gradual slope leading to the deep seabed floor. The limit up to which its length extends up to 200 nautical miles.

These three areas, collectively known as the continental margin, are rich in natural resources, including oil, natural gas and certain minerals.

The coastal states exercise an extensive sovereign-rights over this zone for the purpose of exploiting its resources. The coastal state may, under article 80 of the 1982 Convention, construct and maintain installations and other devices necessary for exploration on the continental shelf and is entitled to establish safety zones around such installations to a limit of 500 metres, which must be respected by ships of all nationalities.

EEZ and Continental shelf is almost similar in nature however the major point of difference between the two is that under the 1982 convention a continental shelf can exist without an EEZ but there cannot be an EEZ without the demarcation of the Continental shelf.

a. Delimitation of the continental shelf

The measurement of the range of this zone has led to several controversies and a long line of legal custom that has led to the need for the evolution of this concept. In the case of Nicaragua vs Honduras, the international court has dictated on the importance of the establishment of a maritime boundary.

The concept of the median line has been used to determine the delimitation of the territorial sea within the opposite and the adjacent coast. Initially, the issue was taken up in the North Sea Continental Shelf cases, wherein the Court took the view that delimitation was based upon consideration and weighing of relevant factors in order to produce an equitable result.

Later, in the case of Libya Vs Malta, the Court emphasised the close relationship between continental shelf and economic zone delimitations and held that the appropriate methodology was first to provisionally draw an equidistant line and then to consider whether circumstances existed which must lead to an adjustment of that line.

High Seas and Deep Ocean Floor

This includes that region of the sea which exists beyond the EEZ and does not form part of the territorial sea. The essence of this region is that no state acquires any sovereign right over this zone. As per the Article 87 of the 1982 Convention, high seas are open to all states and that the freedom of the high seas is exercised under the conditions laid down in the Convention and by other rules of international law. The jurisdictional right in case of high seas depends upon the nationality of the ship, and the consequent jurisdiction of the flag state over the ship.

It is for the flag state to determine rules and regulations therefore a ship without a flag will be excluded from the privilege under this zone. This was also highlighted by the Permanent Court of International Justice in the Lotus case, where it was held that ‘vessels on the high seas are subject to no authority except that of the state whose flag they fly.’

Conclusion

Law of the sea is concerned with public order at sea which has been codified in the form of United Nations Convention on the Law of the Sea and signed on December 10, 1982. It provides rules and regulations that helps to maintain peace and security over the usage of the sea.

The code provides a set of comprehensive rules which divides the oceanic region into 5 maritime zones and it has set the limit to 12 nautical miles for the coastal states to exercise their sovereignty without any conflict. It aims to resolve the dispute amicably with the help of international tribunal for the law of the sea.

References

1. The fletcher School, Law of Sea: Policy Primer, Available at https://sites.tufts.edu/lawofthesea/chapter-one/
2. available at: https://www.un.org/Depts/los/convention_agreements/convention_historical_perspective.htm#Key%20provisions
3. he fletcher School, Law of Sea: Policy Primer, Available at https://sites.tufts.edu/lawofthesea/chapter-three/
4. PCIJ, Series A, No. 10, 1927, p. 25; 4 AD, p. 153.
5. http://www.worldcourts.com/pcij/eng/decisions/1927.09.07_lotus.htm
6. https://www.icj-cij.org/en/case/68
7. Applying mutatis mutandis Article 60, which deals with the construction of artificial islands, installations and structures in the exclusive economic zone.
8. ICJ Reports, 1982, Pg. 18.
9. https://www.icj-cij.org/en/case/120
10. http://www.worldcourts.com/icj/eng/decisions/1982.02.24_continental_shelf.htm
11. James Crawford, Brownlie Principles of Public International Law (8th Edition)
12. Grisbadarna case, 11 RIAA, p. 147 (1909) and the Beagle Channel case, HMSO, 1977; 52 ILR, p. 93.
13. Available at: https://www.un.org/Depts/los/convention_agreements/convention_historical_perspective.htm#Key%20provisions
14. https://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf
15. James Crawford, Brownlie Principles of Public International Law (8th Edition)

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 Tanya Agarwal, 3rd Year Ba. LLB (Hons), Amity Law School, Delhi (GGSIPU). It is very crucial to understand the interaction of states with the international community to secure peace and order. The following article explains the meaning, need and the relevance of Public International Law to help us understand this interaction.

Introduction

The law of nation, although not especially adopted by any constitution or municipal Act, is an essential part of the law of the land.

-Justice Gray   

Law is the element of the society which helps to develop a framework within which rights and duties can be established. World order today requires a method whereby interstate relations could be conducted, and International law fills this gap.

United Nations developed this body of International law for the purpose of promoting international peace and security. Countries come together to make binding rules that they believe benefit their citizens. International laws promote peace, justice, common interests and trade. States work together to strengthen International law because it plays an important role in society.

It is directly and strongly influenced, although not made, by the writings of jurists and publicists, instructions to diplomatic agents, by important conventions even when they are not ratified, and by arbitral awards.

Definition of International Law

According to Oppenheim, International Law is a “Law of Nations or international law is the name for the body of customary law and conventional rules which are considered binding by civilized states in their intercourse with each other.”

Therefore, international law can be considered as a set of rules, agreements and treaties that are binding between countries, they govern how nations interact with other nations. It helps in regulating the relationship of people who trade or have legal obligations which involve the jurisdiction of more than one state. The main purpose of international law is to promote peace, justice and common interest.

Principles of International Law

International law is based on two principles:

1. Jus Gentium: These are those set of rules that do not form part of a legal code or a statute but are those portions of law mutually governing the relationship between the two nations.
2. Jus Inter Gentes: These are those treaties and agreements that are mutually accepted by both countries.

International Law provides the means through which disputes can be resolved peacefully. It is primarily concerned with the rights, duties and the interests of the state.

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Classification of International Law

International Law can be classified into two groups:

1. Public International Law

Public International law is regulated by: 

1. Customs that are included as state practise and opinion Juris.
2. Treaties
3. Globally accepted Norms.

It regulates the relationship between those nations and peoples that may be affected by a particular law as they feel to be bound by these legal codes and rules.

2. Private International Law 

It regulates private conflicts between individuals rather than states. It soughts to resolve dispute in the domestic municipal body which involves an issue revolving beyond its domestic jurisdiction. Corporations, in particular, are commonly involved in private international law disputes because they frequently transfer their capital and supplies across international borders. The more business that is carried out between nations, the more likely a dispute will arise.

International and National Application

National law governs the domestic aspects of government, deals with issues between individuals as well as between individuals and the administrative apparatus, while international law focuses primarily upon the relations between states. International Law and National Law are two distinct legal orders existing independently. An internal law cannot become an International Law. However, an International Law can become an Internal (Municipal) Law.

Theoretical approach

The relationship between the application of International Law in international and national arena presents itself in the form of two clashed theories that are Monism and dualism.

1.Monism

According to monism, international law directly applies within national legal order because the act of ratifying an international treaty automatically incorporates the same into national law. Hersch Lauterpacht and Hans Kelson was a forceful exponent of a version of monism. They emphasized that individuals are the ultimate subjects of international law, representing both the justification and moral limit of the legal order.

Monist systems” do differ in their approach.

• Under some Constitutions direct incorporation of international obligations into domestic law occur on ratification.
• In other States, direct incorporation occurs only in self-executing treaties.

2. Dualism

Dualism deals with a more distinct and independent aspect of the International legal system. For States with a “dualist system”, international law is not directly applicable domestically. It must first be translated into national legislation before it can be applied by the national courts.

Therefore, for dualists, state ratification of the ICC statute is not enough, and national implementing legislation is necessary. War crimes trials, for example, can only take place when the national legislation is enacted, unless of course, such legislation already exists.

Application of National Rules in International Law

A state which has broken its obligation under international law cannot justify their actions by referring to the national law. Under Article 27 of the Vienna Convention on the Law of Treaties, 1969 it is mentioned that as far as treaties are concerned, a party may not invoke the provisions of its internal law as justification for its failure to carry out an international agreement, while Article 46(1) provides that a state may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent.

The International Court has underlined, in the Applicability of the Obligation to Arbitrate cases that the fundamental principle of international law is that international law prevails over domestic law while Judge Shahabuddeen emphasised in the Lockerbie case that inability under domestic law to act was no defence to non-compliance with an international obligation.

Relevance and Function of International Law

The earliest expressions of international law were the rules of war and diplomatic relations. During the Age of Discovery, rules on governing the acquisition of territory became more important and they talked about the principle of freedom of seas because this was necessary for the expansion of trade.

International law, therefore, grew out of necessity. As international engagement increased, international law expanded. In the present-day world, international law is the most convenient form of regulating world order. Some important functions of international law include:

• To maintain International Peace and Security.
• To provide fundamental freedom and human rights.
• To refrain from the threat or use of force by a state against the territorial integrity or political independence of any State.
• To provide the right of self-determination to people.
• To achieve international co-operation in solving international problems of an economic, social, cultural and humanitarian character.
• To settle international disputes by peaceful means.

There exists no such thing as the world legislature, however, there is an international code of law whose pervasive presence might eliminate violence and tries to maintain world peace.  

Historical Overview

While the modern international system can be traced back to some 400 years, but the basic concepts of international law can be discerned in political relationships thousands of years ago. Around 2100 BC, a solemn treaty was signed between the rulers of Lagash and Umma, the city-state situated in the area known to historians as Mesopotamia.

The treaty was inscribed on a block of stone which dealt with the establishment of a defined boundary which has to be respected by both sides. The next major instance of a binding international treaty was concluded over 1,000 years later between Rameses II of Egypt and the King of Hittites for the establishment of eternal peace and brotherhood.

The foundations of international law (or the law of nations) as it is understood today lie firmly in the development of western culture and political organisation. Treaty of Westphalia provides Public International Law, the structure and order, for developing it in terms of the present-day society.

Ideas revolving around natural Law formed the basis of philosophies given by the early theorists. Their theories and philosophies depicted the merging idea of Christian themes and Natural Law that occurred in the philosophy of St. Thomas Aquinas.

In the middle ages, two sets of international law, namely Lex Mercatoria (Law Merchant) and the Maritime Customary Law were developed to deal with problems that transcended international boundaries. With the revival of trade in the 10th century, merchants started to travel all throughout Europe in order to sell, buy and place orders for various goods. These commercial activities required the establishment of a common legal framework.

The Evolution of Modern International Law was done by a British historical lawyer, Maine. The evolving concepts of separate, sovereign and competing states marked the beginning of what is understood as international law. International law became geographically internationalised through the expansion of the European empires. It became less universal in conception and more, theoretically as well as practically, a reflection of European values.

A Dutch Scholar  Hugo Grotius, born in 1583, has been celebrated as the father of International Law. His treatise De Jure Belli ac Pacis has been acknowledged as the most comprehensive and systematic treatise of positivists international law. It is extensive work and includes rather more devotion to the exposition of private law notions than what seems appropriate today.

One central doctrine in Grotius treatise was the acceptance of the law of nature as an independent source of the rule of law of nations apart from customs. His work was continually relied upon as a point of reference and authority in the decisions of courts and textbooks and later writings of standing.

The rise of international law mainly happened during the 19th Century with the rise of powerful states surrounding Europe. With the greater technological advancement and development of new warfare methods, it became necessary to regulate the behaviour of these states with the help of a legal framework. The International Committee of the Red Cross was founded in 1863 which helped to promote the series of Geneva Conventions beginning in 1864. These conventions dealt with the ‘humanisation’ of conflict. 

The Hague Conferences of 1899 and 1907 helped in establishing the Permanent Court of Arbitration which dealt with the treatment of prisoners and the control of warfare. Numerous other conferences, conventions and congresses emphasised the expansion of the rules of international law and the close network of international relations. Due to the above actions the development of the law of war and international bodies that adjudicated international disputes occurred.

The Permanent Court of International Justice was established in 1921 after World War I and was succeeded in 1946 by the International Court of Justice. United Nations founded the International Court of Justice which has now expanded the scope of International Law to include different aspects of the issues that affect a vast and complex area of international rules such as International Crime, Environment law, Nuclear law etc. 

The ICJ was created as a judicial body to hear cases involving disputes between nation-states. It is made up of 15 judges, elected for nine-year terms. The judges are elected by the U.N. General Assembly and the Security Council, based on nominations made to the Secretary-General.

Conclusion 

International Law is a set of rules which is necessary to regulate the behaviour of nation-states in order to ensure peace and welfare of the International community. It helps in resolving disputes amongst states. It is not necessary for international law to be codified into an agreement. It may influence internal laws and become a part of domestic law as well. Modern International Law has developed through a long line of history and the International Court of Justice is considered as the principal body responsible for upholding the tenants of International Law.

References 

1. https://legalcareerpath.com/international-law/.
2. Eric Brahm, International Law, Beyond Intractability (Sept. ,2003), https://www.beyondintractability.org/essay/international_law.
3.  C. H. Alexandrowicz,The European– African Confrontation, Leiden, 1973.
4. SHASHANK SURESH, PROJECT REPORT ON EVOLUTION OF INTERNATIONAL LAW, 13-14 (Feb. 15, 2017).
5.  Nussbaum, Law of Nations, pp. 1-2, 3.
6. ZAIBA, Public International Law, Lecture Notes, Available at: https://www.academia.edu/27871613/PUBLIC_INTERNATIONAL_LAW_LECTURE_NOTES.
7. D.J. Bederman, International Law in Antiquity, Cambridge, 2001
8. Introduction to International Law, Available at: https://www.slimstuderen.nl/uploads/inkijkexemplaar/Inkijkexemplaar%20law.pdf.
9. https://junaidansaari.blogspot.com/2019/07/definition-and-function-of.html#gsc.tab=0.
10.  Available at: https://www.peaceandjusticeinitiative.org/implementation-resources/dualist-and-monist.
11. Special Rapporteur Kamto, Seventh Report, A/CN.4/462, 4 May 2011.
12.  Available at: https://legaldictionary.net/international-law/.
13.  Infoplease, Columbia Electronic Encyclopedia, 6th ed. Copyright © 2012, Columbia University Press, International law: Evolution of International Law.
14. Oppenheim volume on International Law(9th Edition)
15. https://www.icj-cij.org/files/case-related/77/077-19880426-ADV-01-00-EN.pdf
16. https://treaties.un.org/doc/Publication/UNTS/Volume%201155/volume-1155-I-18232-English.pdf

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

Stick around in the same law firm long enough, and you are likely to be made partner. As simple as that.

The harder way is to walk into a firm with a bunch of clients. However, if you already have clients of your own, the question may arise as to why not start your own firm anyway.

Lawyers often believe that the smartest or most knowledgable lawyers would be made partners faster. This is absolutely not true. This may be true in the short run when it comes to lower-level promotions and bonus allocations. However, as you grow more senior in the profession, your perceived loyalty begins to matter more than your performance. 

There are two main factors as to why a senior lawyer in a firm may or may not be made a partner. One is about how profitable you are for the firm as a business owner. The other is your perceived loyalty to the firm. 

Are you someone who is capable of running a vertical? That is, are you capable of recruiting lawyers, training them, getting work done through them, manage their productivity and performance, manage and retain clients, and get more work for the firm?

As you can see, apart from your legal skills, which are presumed to be good enough if you survived long enough in a big law firm, there is a whole other set of skills that is super important. Most of these are critical business skills.

As a partner, you are valuable to a law firm if you either bring work to the firm or if you can get the work done. Even if you do not bring in work, when you can own the matter and hold together a team that gets work done consistently at a high level of quality, any given law firm management would consider making you a partner, even if you do not have your own clients. 

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Most law firm managing partners or owners find it easier to bring in work than to get work done at a quality that they can be proud of, despite scaling up their team.

And that is where the value of partners who can run their own units and ensure delivery of high quality of work comes from. There is no way a law firm can hope to grow without adding more and more such self-sufficient units under the command of capable partners.

Such partners who are good at executing are highly appreciated in law firms, sometimes even more than rainmaker partners who are able to bring in their own business, because those who can bring their own business may not stay back at the firm, and are highly likely to leave with some of the firms clients when they leave. And that is something that law firms hate and are very wary of!

There are big law firms that have a policy of not hiring lateral partners if those partners have their own books, due to this exact same fear.

All law firms, on the other hand, try to promote and retain homegrown partners. For stability and growth of the firm, law firms need long term players who will stick around. They need to incentivize those who stay in one place and do not jump ship for small advantages or small salary hikes very strongly, by making such loyal lawyers partners faster.

There was a time when lawyers moved around a lot, and it was expected that changing jobs will lead to promotions and salary hikes. It is quite not so these days. 

Law firm owners delay the partnership of all those lawyers who move around, no matter how good they are at their work because they cannot fully trust those lawyers to stay with them long term, and also because loyalty is in any case more valuable to the firm. 

The only reason to shift from one law firm job to another, therefore, is if you do not like the work you are doing, or if you do not gel with the team or a certain boss. However, there is a cost to moving around, and you need to keep that in mind.

On the other hand, in in-house counsel jobs, it is advisable that you work for different companies in different industries over the years, because that increases your exposure to different kinds of matters and increases your value as a future General Counsel.

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 Tanya Agarwal, 3rd Year Ba. LLB (Hons), Amity Law School, Delhi (GGSIPU). The following article explains the origin and sources of International Law through various places from which it evolved along with its application in states and international organisations.

Introduction

International Law is comprehensive in nature and due to that it is an amalgamation of various sources, there exists no single system of laws which can interpret and extend the law but international law still exists and is ascertainable.

There are ‘sources’ available from which the rules of international law may be extracted and analyzed. According to Lawrence, if we take the source of law which has all the authority required to give it binding force, then in respect of International Law there is one source of law and that is the consent of Nations. This consent may be either tacit (custom) or express (treaties).

Major sources which form the conventional source of International law includes the International Convention and Treaties. Sources of International Law can be bifurcated into primary and secondary sources which are explained below.

Primary Sources

Primary Sources of International Law are considered formal in nature. They come from official bodies which include Treaties, Customs and principle of Law. Article 38(1)(a-c) of the ICJ statute is widely recognized as the backbone of the formal source of International Law. It is generally regarded as an authoritative statement of the sources of international law. Article 38 of the Statute of the International Court of Justice in The Hague has been treated as a convenient catalogue of international legal sources.

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Article 38 of the ICJ statute:

Article 38(1)(a-c) of the ICJ was adopted by the same provision of the statute of the Permanent Court of International Justice which operated under the auspices/support of Legal of Nations in 1920. The article refers to the primary sources of international law which are enumerated below:

Custom as a Source of International Law

The original and the oldest sources Law is known as Custom. The rules of customary International Law involved a long historical process which gained recognition by the entire community. The presence of customary rules can be deduced from state practice and behaviour because it is not a written source of law. A rule of customary law is said to have two elements:

First, there must be widespread and consistent State practice.

Secondly, there has to be “opinio Juris”, a Latin term which means a legal obligation to believe in the existence of such law.

Features of Customary Law

Uniform and general

State practice to give rise to binding rules of customary International Law, that practice must be uniform, consistent and general and must be coupled with a belief that the practice is obligatory rather than habitual. In the Asylum Case, the court declared that a customary rule must be used constantly and uniformly throughout history which can be traced through state practice.

Duration

Continuous and regular use of particular conduct is considered as a rule of customary law. In the North Sea Continental Shelf cases, the ICJ stated that there is no precise length of time during which the practice must exist. It is simply that it must be followed long enough to show that other requirements of custom are satisfactory.

An opinion of Law.

To assume the status of customary international law the rule in question must be regarded by the state as binding in Law i.e. the states must regard themselves as being under a legal obligation to follow the practice. In the Lotus case,opinio Juris was seen as an essential element of customary international law and this was affirmed in North Sea Continental Shelf Cases as well.

Convention as a source of International Law

Treaties and conventions are one of the most important sources of International Law. These conventions can be multilateral or bilateral. Multilateral conventions relate to the treaties which formulate the universal or general application of the law. On the other hand, bilateral conventions are those which is formed exclusively by two states to deal with a particular matter concerning these states.

Vienna Convention on the Law of Treaty 1969, the codified law for contracting treaties, gives the definition, “A treaty is an agreement whereby two or more states establish or seek to establish a relationship between them governed by international law.” Treaties act as a direct source of rights and obligations for the states, they codify the existing customary source of law.

They are voluntary and cannot bind non-signatory to it, however, there are certain exceptions to it that is if any rule forms part of the Jus Cogens norm as they are part of the accepted principles of International law and every state has a peremptory duty of not breaching them due to their erga omnes obligations. (owed to the whole world)

General Principle of International Law

Most modern jurists accept general principles of law as common to all national legal systems, in so far as they are applicable to the relations of States. There are fewer decided cases in international law than in a municipal system and no method of legislating to provide rules to govern new situations. It is for such a reason that the provision of ‘the general principles of law recognized by civilized nations’ and was inserted into article 38 as a source of law.

Some of the examples of General principles include:

• The rule of res judicata which has been affirmed by the court in the case of Genocide Convention Bosnia and Herzegovina v. Serbia and Montenegro,
• The rules of pacta sunt servanda made applicable,
• Reparation must be made for damage caused by the fault, 
• The right of self-defence for the individual against attack on his person, family, or community against a clear and present danger,
• For one’s own cause no one can be a judge and that the judge must hear both sides.

Secondary source (Evidence of International law)

Article 38(1)(d) forms part of the material source of International Law also known as the secondary source. It states that judicial decisions and the teachings of the most highly qualified publicists of the various nations also help in guiding the formation of international law, however they are not binding but merely advisory in nature. 

Judicial Decision

Under this, the court is authorised to apply previous decisions of the court which are also known as an evidence of international law, however, it is subject to the exception stated under Article 59 of the statute which states that the previous decision of the court can only guide the court, it is not binding on the court.

This article provides the court with a rule that it is not to be bounded by precedents but recourse can still be made by the court to its past decision’s res judicata and advisory opinion to substantiate current case as authoritative evidence of legal position.

ICJ plays a major role in the law-making process through its advisory opinions, case laws and judge’s rule. One of the major examples of this includes the principle of the prohibition against the use or threat of use of force laid down by the court in the case of Nicaragua vs. USA which is now considered as a part of Customary International Law. T

he judicial decision of the court also encompasses international arbitral awards and the rulings of national courts. One leading example is Alabama Claims arbitration, which marked the opening of a new era in the peaceful settlement of international disputes, in which increasing use was made of judicial and arbitration methods in resolving conflict.

Another illustration of the impact of arbitral awards is the Island of Palmas case wherein it has been referred that a unanimous, or nearly unanimous, decision plays an important role in the progressive development of the law. It helps in providing a single view for interpretation of the issue at hand which helps in avoiding controversy during the development of International Law.

Juristic writings and teachings

Other major parts of this source also include the ‘teachings of the highly qualified writers such as Gentili, Grotius, and Vattel who were considered as the supreme authorities of the international law in the 16th to 18th Centuries.

Textbooks are used as a method of discovering what the law is on any particular point rather than as the source of actual rules, and the writings of even the most respected international lawyers cannot create law. These are considered as an evidentiary source of law as they provide an explanation and understanding of the International principles. They carry an essential value because they provide to fill the grey areas of International Law where treaties or customs do not exist.

Other sources of International Law

International law is not based on a set of rules and therefore article 38 is not exhaustive. There are various other factors that develop the usage of International Law which include declarations of Security Council resolutions, declarations, and recommendations adopted by the UN General Assembly, International morality and equity, etc.

The world is constantly evolving and the problems are becoming more complex, the resolutions and declarations adopted by assembly act as an inevitable impact upon the direction adopted by modern international law. The way states vote in the General Assembly and the explanations given upon such occasions constitute evidence of state practice and state understanding as to the law.

For example, in the case of the USA vs Nicaragua, General Assembly had asked the court for an advisory opinion on the question: “is the threat or use of Nuclear weapons in any circumstances permitted under International Law?” The court after a review of the relevant international legal instrument as well as the Security Councils’ General Assembly resolution of the matters reached a resolution that the threat or use of nuclear weapons would generally be contrary to the rules of International Law applicable to armed conflicts and in particular the principles and rules of humanitarian law.

The concept of equity has been referred to in several cases. In the Rann of Kutch Arbitration between India and Pakistan in 1968, the Tribunal agreed that equity formed part of international law and that accordingly, the parties could rely on such principles in the presentation of their cases.

UN has provided a true compliment for the gap created in what is supposed to be an accurate reflection of other sources of international law and its activities has positively affected lawmaking ways by resolutions and faster means by 15 members of the Security Council and 191 members of the General Assembly as greater needs arise for fast development of international law codified by International law commission.

States and International Organisation

International Law is a system of rights and duties given to a legal system so that they can exercise them at a global level. There are different International bodies that are subject to possession of such rights under customary law and therefore also have the privilege for bringing any claim if there is a violation of their rights.

The determination of the personality of these bodies depends mainly upon the nature and extent of particular rights and duties. With the evolution of International law, it is necessary to determine the inter-relationship between these bodies and their capacity to enforce claims as per their rights and duties. These bodies may include states, international organizations, regional organizations, non-governmental organizations, and individuals.

States

States have international legal personality to the fullest extent. They constitute one of the most important international organizations as they form the primary centre for the collection of the social activities of civilization.

The doctrine of Recognition – Creation of Statehood

Recognition of the state is an International Concept wherein a new state or an existing state is given a formal acknowledgement of being a member of the International community. According to Article 1 of the Montevideo Convention on the Rights and Duties of States, 1933 and Oppenheim, the entity of a state can be created if it possesses the following characteristics:

1. Defined Territory
2. Population
3. Government
4. Capacity to enter into a relationship with another state

However, there is no set pattern recognized so far which forms a particular base for the recognition of statehood as per the above criteria. Such provisions are neither exhaustive nor immutable. Recognition of a statehood grants certain privileges in the form of rights, duties, and immunities which include the authority to enter into a foreign relation with another state, became a part of a treaty, the right to undergo succession and become a member of the United Nations. There are two theories on recognition which are:

Declaratory Theory

The theory was propounded by eminent jurists such as Fisher and Brierly, under this theory the independence of a new state does not take into account its acceptance by other states. The theory has been given in Article 3 of the Montevideo Convention where it recognizes the existence of a new state does not depend upon the mind of the existing state’s consent.

Consecutive Theory

Oppenheim proposed this theory wherein it stated that for a state to be considered as an International entity, it is necessary for it to be recognized by other sovereign states so that it can enjoy its rights and duties. The theory does not propose the non-existence of a state rather it places an emphasis on acceptance by other states for a state to enjoy their exclusive rights.

Recognition of a States

There are two modes of recognition of states which are as follows:

When a state is recognized, there are two ways by which it can be declared which is:

Express Recognition

Expressed Recognition is done through an official notification or declaration by an existing state recognising the presence of a newly formed state. This category usually recognizes a de jure form of recognition unless provided otherwise by the recognizing state in the declaration for considering it under any other form.

Implied Recognition

The action of an existing act done impliedly which indicates acceptance to a new act as an International person is considered as a form of Implied Recognition. There can be several implied actions for instances speeches, declarations etc. It depends on a case-by-case basis.

Recognition of a government

The criteria laid down for recognition of a government is different from that of recognition of a state. In case of a newly formed government, it is necessary to check the constitutionality of the government to ensure a valid recognition of the same. When a new state comes into existence it becomes necessary to check the structure of the new government to ensure international standards are being followed.

Following criteria needs to be checked for recognizing a newly formed government:

1. Sufficient control and power by the government over its population.
2. The capacity of the new government to fulfil its international obligations and duties.

There are various theories which have been accepted for recognizing the government but the most prominent amongst them is the so-called doctrine of legitimacy, it was initially used by the United States in relation to Central America, but the theory declined gradually.

Recognition practice as per the USA

In the USA only a recognized state can sue, there are a line of legal precedents on the practice of recognition by the USA, for instance in the Salimoff case the terms of the certificate tended to encourage the court to regard the Soviet government as a recognized government, on the other hand, in the case of the Maret the tone of the executive’s statement on the Soviet Republic of Estonia was decidedly hostile to any notion of recognition or enforcement of its decrees.

In 1977, the United States declared that instead of focusing on the change in the government, they should try to establish the need for diplomatic relations and if the administration is willing to involve and conduct business with other governments.

Therefore, the US prefers to initiate diplomatic relations to recognize the government. It has been observed that the United States typically avoids taking the lead in recognition, waiting for the domestic politics to play out or for regional bodies like the Organization of American States to resolve the crisis before deciding whether to confer legitimacy on the new government. In the case of Honduras, for instance, the United States followed the lead of other Latin American countries in deeming Zelaya’s ouster illegitimate.

International Organization(IO)

Meaning and Nature

The International Community is an amalgamation of various voices and opinions, therefore with the growing need for international cooperation and to ensure peace in this community International Organization have emerged. An international organization has been defined as a form of co-operation of sovereign states based on multilateral international organizations and comprising of a relatively stable range of participants, the fundamental feature of which is the existence of permanent organs with definite competences and powers acting for the carrying out of common aims.

The essential elements which describe International organization include:

1. Multilateral International agreement
2. Individual Personality of the Institution
3. Permanent organs carrying out its Function

International Organizations are usually created amongst states or by their duly authorized representatives, however, there is no uniform rule on the same, states sometimes create legal entity based on a treaty though are there to enforce and uphold the principles of a treaty such as European Court of Human Rights but they are not considered as International Organisations.

An international organisation may come into existence by the formation of a treaty or through an existing organisation granting certain powers for forming an international organisation. UNICEF is an International organisation which was formed by the United Nations General Assembly. 

Historical Development of International organisation

The development of IO can be traced from the need for establishing the psychological notion of world government. It was only in the 19th-century major IO’s emerged before that there were smaller councils like the Hanseatic League or the Swiss Confederation and the United Provinces of the Netherlands etc.

Embassies establishing bilateral needs were not sufficient and adequate to solve problems that arose between more than two states, there was a need to find a way so that interest of all the states can be represented so an International conference of all the representatives from several states was organized which came to be known as the principal originator IO namely Peace of Westphalia in 1648, which ended the thirty-year religious conflict of Central Europe and formally established the modern secular nation-state arrangement of European politics.

Till the first world war, the major issues were sought through conferences, for instance, in  1815 congress of Vienna marked the first systematic attempt to regulate international affairs by means of regular international conferences.

Due to several inconsistencies in the ad-hoc nature of these conferences, because they were only state-specific in nature and could only be called upon by the initiative of the interested states, international NGOs and public international unions like the International Committee of Red Cross and the inter-governmental associations emerged during the 19th Century for efficient functioning of vital arteries of communication such as the Rhine and Danube rivers.

With the continuous evolution of the society, it was noticed that an efficient body of IO can be established, and the League of Nations was the first international organization which was designed not just to organization operation between states in areas which some have referred to as ‘low politics’, such as transport and communication, or the more mundane aspects. However, after World War II, the league of the nation was disbanded due to its inefficiency and the United Nations was founded in 1919.

Conclusion

International law has emerged through various sources which have been codified in Article 38 of the ICJ statute which identifies customs, treaties and general principles as formal sources of International Law. However, the Judicial decision is given by the world court also acts as advisory opinions in guiding the development of International law.

Various philosophers and juristic theorists have enlightened the philosophy of  International law through their theories and principles as well. International Law helps in Identifying states as an entity of the world community through various modes so as to provide them with rights and duties. To ensure peace and order amongst the nation-states, International Organisation plays a major role in increasing cooperation and upholding the international law which has emerged from various sources.

References

1. Bowett’s International Institutions, pp. 6–9.
2. El Erian, ‘Legal Organization’, p. 58.
3. https://chilot.blog/wp-content/uploads/2011/06/international-organizations.pdf
4. https://foreignpolicy.com/2010/04/13/how-does-the-u-s-decide-which-governments-to-recognize/
5. 145 F.2d 431 (1944); 12 AD, p. 29. 
6. The Sources of International Law’ (Lawteacher.net, October 2019) <https://www.lawteacher.net/free-law-essays/international-law/the-sources-of-international-law.php?vref=1> accessed 27 October 2019.
7. Available at: https://www.academia.edu/27871613/PUBLIC_INTERNATIONAL_LAW_LECTURE_NOTES
8. Sources of International law In the light of Article 38 of the International Court of Justice By Shagufta Oma.
9. The Sources of International Law’ (Lawteacher.net, October 2019) <https://www.lawteacher.net/free-law-essays/international-law/the-sources-of-international-law.php?vref=1> accessed 27 October 2019.
10. Peter Malanczuk & Akehurst’s Modern Introduction to International Law, (London: George Allen & Unwin, 1997); 49.
11. The additional clause relating to recognition by ‘civilised nations’ is regarded today as redundant: see e.g. Pellet, ‘Article 38’, p. 769.
12.  Israr Khan, Article 38 of the Statute of the International Court of Justice: A Complete Reference Point for the Sources of International Law, THE NEW JURIST, 5th April 2019.
13. https://www.ilsa.org/Jessup/Jessup15/Montevideo%20Convention.pdf
14. http://www.worldcourts.com/pcij/eng/decisions/1927.09.07_lotus.htm

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

Let’s say you want to work with a lawyer to gain experience. What is the right way to find a senior who can really help you to learn and grow?

One thing you should remember at this point is that no good lawyer wants to spend a lot of time teaching junior lawyers, no matter what they may say to the contrary. Good lawyers are super busy and their time is worth a lot. Any time they save they would like to spend on themselves or with their loved ones, and not with juniors teaching them how to work.

And this is why, senior lawyers value juniors who are really good at their work and make the life of a senior easier. Your ability to find a place in a good senior lawyers chamber as well as retain that place depends on your level of skills, and on how much you are able to help those lawyers with their day to day work. If you struggle with basics, you are not going very far, maybe except finding a corner to sit in someone’s office for a while.  

So assuming you are ready to work with a great senior and add value, how do you go about finding the right person?

#1Pick a niche

It is easier to succeed as a niche lawyer, and you are also more likely to earn more as a specialized niche litigator. Pick an area – it could be real estate, telecom, company law, competition law, insolvency, banking litigation, securities law, NDPS, electricity or tax. Anything that has good volume and preferably something new with relatively fewer practitioners is fine. 

Going for usual civil or criminal courts, or High Court or Supreme Court especially is a little harder as these are overcrowded courts where making a mark will be harder and will take way much longer. 

Also, see if you have any passion for the kind of work that you are going to pick up. It is always far easier to do well in something that you are truly passionate about.

There are seniors who have already made a good name in any given niche, and you should aim to work with one of them.

#2 Go through the orders of the last 6 months

You should study the orders given in the last 6 months by courts. Are there some lawyers who are repeatedly mentioned as counsels in many of the judgments? List down the names of such lawyers. Clearly, these lawyers are very busy, have a lot of work, and will certainly be in the need for high-quality juniors who can make their lives easier. 

This is an important step. Do not rely only on hearsay. You need this evidence to know who is truly appearing in a lot of matters because more you ask around, different people would give you totally different and confusing opinions about which lawyers are doing the most exciting work and only by seeing the court orders you will come to know the truth. 

#3 Attend court and see senior lawyers argue

You should also attend courts and tribunals and see how the lawyers you have listed down argue before the court. Does it inspire you to see them in action? Who inspires confidence? 

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Try approaching them outside courtroom and ask for their mentorship and guidance. Find any excuse you can find to interact with them. When you speak to them one-on-one, you will know who exactly it is that you want to eventually work with.

#4 Offer to work for free

The problem with the popular and successful lawyers is that they have no space usually in their chambers. They already have enough juniors. They are also always getting many offers to take up people as juniors and they do not have the time, space or inclination to entertain more juniors.

However, you can still get through. You simply ask to work for free. Tell them that you just want to learn and expect nothing in return. This makes it easier for them to say yes.

If you do well while you are in their chamber, if they see that your work is truly making their work easier, they will offer money to you on their own. They value their time more than their money because they are earning money by the bucketloads, so they do not mind paying living wages to a good junior. 

Unfortunately, most juniors waste their time, and that is the only hardship. Be a junior who saves their time and effort, and money will be not hard to find. 

#5 What are their past juniors doing

This is a very important question. What are their previous juniors now doing? Are they practicing independently? Are they doing well in life? What do they say about their ex-boss? This is an important factor. 

There are plenty of good lawyers who are terrible bosses. Your senior can help you a great deal – such as referring government panels or well-paying clients to you. But would he? Not everyone does.

You need to do this due diligence about any senior you are planning to join. 

How can LawSikho help you?

We have a bunch of courses that will help you a great deal to perform really well when you find the right senior. Also, we always recommend our top students to very good seniors if they are interested in litigation. We would also help you to pick the right niche where you can grow very fast. Take a look at some courses here:

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This Article is written by Dhruv Vatsyayan. He is pursuing his B.A.LL.B. at Law School, Banaras Hindu University and is in his first year. In this article, he discusses provisions for Protection in respect of conviction for offences with a special focus on Article 20 of the Indian Constitution.

Introduction

Every day in our daily lives, we come across various news reports where someone is being accused of some offence(s).

The basic question which every legal enthusiast faces on coming across these is whether there is some sort of fundamental rights or protection for the accused ones or ones to be presented before courts for trial.

Our great Constitution makers must have also faced the same question and dilemma at the time of framing of the constitution. Thus, to deal with the same, Article 20 was included in Part III of the Indian Constitution.

Article 20 of the Indian Constitution makes up of 3 clauses.

In a simpler sense, these three clauses deal with issue of unnecessary and rather undesirable actions by Legislature, Executive & implementing authorities.

The basic crux of these provisions are:

• First, it establishes that no one should be convicted for any offence other than those violating the law in force at the time of the commission of the offence and also, one couldn’t be penalised with a greater punishment than what existed at the time of the commission of the act.
• Second, no one could be convicted and punished more than once for the same offence involving the same set of facts.
• Third, no one should be compelled to produce such evidence and information which could be used against him during trial incompetent judicial tribunals.

Article 20 is among those Articles of the Indian Constitution, which can’t be put aside even during an emergency. Thus, forms a cornerstone of the Indian Constitution.

Now, let’s do a survey of three legal doctrines of the Indian Criminal jurisprudence, which reflects the three clauses of the Article 20, i.e. Ex-post facto law, Doctrine of Double Jeopardy and Prohibition against self-incrimination.

Provision against Ex post facto law: Clause (1) of Article 20

The provision in question, i.e. Article 20 (1) says that one must not be prosecuted and convicted in accordance with those laws which didn’t exist at the time of the commission of the offence by the accused and also must not be inflicted with punishments greater than those existing at the time of commission.

This provision negates the chance of retrospective implementation of laws regarding criminal offences. In simpler speak, this provision brings a clampdown to the legislative prerogative of the legislation by prohibiting retrospective implementation of a law having criminal nature.

Illustration

Assume that a man, Bhairav Surve, practising black magic in Dhamangaon village of Maharashtra, murders a child of his locality on 20th December 2012. Later, in December 2013, the legislature of Maharashtra passes the Maharashtra Prevention and Eradication of Human Sacrifice and other Inhuman, Evil and Aghori Practices and Black Magic Act, 2013 and by virtue of provision against Ex post facto law, Bhairav Surve can’t be prosecuted and charged under the mentioned Act as the commission of offence dates back to when the act didn’t exist.

Though the legislation in India has the authority to implement laws retrospectively this clause prohibits the Legislature to enact a criminal law retrospectively. This provision ensures that no one could be booked or charged under such laws, which were not in existence at the time of the commission of the offence.

The Landmark judgement governing this doctrine came in the year 1953, in case of Kedar Nath v. State of West Bengal. In this case, the Hon’ble Supreme Court of India observed that, whenever an act is declared as a criminal offence and/or provides penalty for same by the legislature, it is always prospective in nature and can’t be implemented retrospectively to uphold what is being said under Article 20 (1).

However, only the procedure of sentencing and convicting is what is prohibited under this clause, and not the trial itself. Thus, a person accused according to a particular procedure can’t be questioned under this clause and doctrine of Ex post facto law.

Dealing with a similar situation, in the case of Mohan Lal v. State of Rajasthan (AIR 2015 SC 2098) which involved Narcotics, Drugs and Psychotropic Substances Act, the court opined that, only conviction and/or punishments under an ex post facto law is prohibited under Article 20 and not the trial or prosecution itself. Also, trial under a different procedure than what existed during the commission of the act doesn’t come under the ambit of the same and can’t be struck down as unconstitutional.

In another important judgement in case of Maru Ram Etc. vs Union Of India & Anr (1980 AIR 2147), the Court observed that Article 20 (1) also includes the rule that there will be no retrospective infliction of penalties heavier than those existing ones at the time of commencement of the offence.

However, an exception also exists to the restriction under this provision. In the case of Rattan Lal v. the State of Punjab, the Hon’ble Supreme Court allowed for such retrospective implementation of Criminal Laws, where the issue pertinent is, reduction of punishment in the said offence. Now, let’s discuss the Doctrine of Double Jeopardy.

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Double jeopardy: Clause (2) of Article 20

“Nemo debet bis vexari pro una et eadem causa”

The Doctrine of Double Jeopardy, which traces back its origin to American jurisprudence of punishment, means that ‘no person can be prosecuted and punished twice for the same offence in subsequent proceedings’. And, Article 20 (2), which reads that no one could be convicted and punished more than once for the same offence involving the same set of facts guarantees against the multiple convictions and Double jeopardy.

In the case of Venkataraman v. Union of India, the Supreme Court of India established that this provision deals exclusively with Judicial punishments and provides that no person is prosecuted twice by the judicial authorities. The most crucial landmark judgement came in case of Maqbool Hussain v. State of Bombay, where the person accused was possessing some amount of gold, which was against lex loci at the time and gold was confiscated by the customs authority. And, later when the person was prosecuted before a criminal court, the court was confronted with the question whether this amounts to Double Jeopardy.

But, the Supreme Court observed that departmental proceedings, i.e. by Customs Authority, in this case, doesn’t amount to trial by a judicial tribunal, thus the proceedings before the criminal court is not barred in this case and the proceedings can go on. In a nutshell Departmental Proceedings are independent of trial by a judicial court or tribunal.

However, the prosecution may happen if the facts are distinct in subsequent proceedings. Same was established by the Supreme Court of India in case of A.A. Mulla v. State of Maharashtra and was observed that; Article 20 (2) would not be attracted in those cases where the facts are distinct in subsequent offence or punishment.

The defence from prosecution for the second time has also been embodied in Section 300 (1) of CrPC which says that someone who had been convicted/prosecuted by a competent court for some offence will not be liable to be prosecuted again till the previous conviction/acquittal remains in force. Thus, prohibiting from a conviction for the second time, for the same offence and on the same set of facts. This provision does devise a rule for where the second trial is permissible and where not.

However, the application of this provision does demand certain conditions to be fulfilled: 

• First, that the accused or the person in question must have been tried by the court previously and it is concerned only with judicial prosecution and proceedings.
• Secondly, the court trying the case must be competent, i.e. it should act under its competent jurisdiction and shouldn’t exercise its power, Ultra Vires.
• Thirdly, the previous proceeding must have ended in either acquittal or conviction and if it ended merely after inquiry, such cases are not covered under the ambit of Sec 300 (1) of CrPC.
• Fourthly, the previous conviction/acquittal must be in force and should not have been set aside by appeal or re-trial. This is an essential condition because in absence of let’s say, previous conviction, there will be no bar for the second prosecution and the second trial may happen.
• And lastly, in the subsequent trial, he/she must be tried for the same offence and on same facts for any other offence, which is having a different charge under Section 221 (1)/(2) of CrPC.

Nonetheless, there exists an exception to this provision, i.e. the Principle of Issue Estoppel. The above-mentioned exception provides for estoppel against the ongoing prosecution if the fact-finding happens to be in favour of accused but it does not bar from subsequent proceeding for a different offence. However, to invoke this defence, not only the parties involved but the facts in issue should also be the same. Landmark case for the same is Ravinder Singh v. Sukhbir Singh.

As we’re done with Doctrine of Double Jeopardy, let’s now discuss Prohibition against self-incrimination.

Prohibition against self-incrimination: Clause (3) of Article 20

Another foremost rule which provides for protection from a conviction for offences is ‘Prohibition against Self-incrimination.’ The same is provided by the Constitution of India in Part III under Article 20 (3). It describes that no one could be forced to utter and provide such information or evidence orally or by documentary means which could be used against himself during the further trial procedure.

Also, the term ‘Witness’ includes both, Oral and documentary evidence as held in M.P. Sharma v. Satish Chandra. As held in the same case, however, there is no restriction where a search for document or seizures is being done by the authorities. However, the information and evidence produced voluntarily by the accused is permissible.

Let’s understand this with an illustration;

Let us suppose that there is some Mr Jones, who is being tried for an offence of murder of his stepbrother and while in police custody, he says that “I have killed my stepbrother”.

Same could be admissible in court under section 27 of Evidence Act and doesn’t violate Article 20 (3), but it is upon the prosecution to find out whether the information provided is voluntary or under compulsion. The rationale behind this is that the evidence must be in the form of communication and for the same reasons, the medical examination done during the course of a trial is permissible. This is why Narco Analysis test is frequently used by authorities to gather information and evidence and does not violate the provision under Article 20 (3).

Prohibition against self-incrimination could only be put into effect if the person is accused of a criminal offence. This doctrine could not be invoked for cases other than criminal cases. Also, as held by the Hon’ble Supreme Court in Narayanlal vs Maneck, to claim the immunity from being self-incriminated, there must exist a formal accusation against the person and mere general inquiry and investigation don’t form grounds for the same.

Article 20 (3) also lays out that a person cannot be compelled to be a witness in his/her own prosecution or case. This is also embodied in the American Constitution by virtue of 5th Amendment into it. Also, the authorities can not compel the accused to produce evidence, which can be used against his trial. Those evidence can be Oral or Documentary. However, an exception to this lies under Section 91 of CrPC which gives authority to a court or an officer to issue an order demanding documents that were under the possession of the accused. 

Another provision which guarantees prohibition against self-incrimination is Section 161 (2) of CrPC, which says that while being examined by the authorities, a person is bound to answer all the questions truly excepting those which have a propensity to be used against the person himself later during trial.

Thus, here we come to the end of the segment discussing Article 20 (3) of the Indian Constitution and other provisions providing for the prohibition against self-incrimination.

Conclusion 

If we would bother to analyse all the clauses of the Article 20 of the Indian Constitution, we would come across this interesting inference that these clauses i.e. Article 20(1), Article 20(2) and Article 20(3) reflects protection of convicted persons from excess of Legislation, Judiciary and Executive actions respectively.

Also, these protections are available to all the people i.e. Indians as well as foreigners and thus forms the bedrock of the Indian Constitution and guarantees basic human rights to the convicted and accused people.

Its availability even during when an emergency is being imposed under Article 352 of the Indian Constitution is what makes it unique and so much important for the discharge of democratic values.

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 Protection in respect of Conviction for Offences: Blend of Constitutional & Procedural Laws appeared first on iPleaders.

This article is written by Aniket Tiwari pursuing B.A.LL.B. (1st year) from Law School, Banaras Hindu University. This article is about one of the fundamental right of a citizen of India i.e. Article 14 of the Indian Constitution. Here this article includes all the information about Right to Equality.

Introduction

In general sense, everybody here is capable of understanding Article 14 of the Indian Constitution i.e. “Right to Equality”. Even after 73 years of independence, our country is not able to gain actual independence. Evils like discrimination are still prevailing in our country. Even the one who created our Constitution suffered from this anathema. Even now there are some places where people are not treated equally and they are discriminated on different basis like religion, race, sex, caste, place of origin, etc.

By knowing the scenario of India our Constitution-makers added Article 14 in Indian Constitution as the fundamental right to citizens as well as those who are not a citizen of our territory. 

The main purpose of writing this article is to bring clarity about Article 14. When we see a husband treating his wife badly, a girl who is not able to complete her education due to family pressure, a lower caste man being shown inferior to upper caste people. These are examples of discrimination. Here we can understand how important the role of the state is to maintain the equality of citizens.

Article 14 basically states that “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”.

To treat all citizens equally is the basic concept of liberalism and Article 14 ensures the same to our citizens. The liberty of any person is directly connected to the equality he/she is getting in society.

Equality before Law

Our country as we all know is a democratic country and in fact the largest democratic country in the world. Here all are independent to think about anything, do anything (with reasonable restriction though) and our state is there to put reasonable restriction. In the eyes of law, all persons within the territory of our country should be treated equally.

Equality before Law basically means that all persons should be treated equally no matter whether they are poor or rich, male or female, upper caste or lower caste. This state cannot provide any special privileges to anyone in the country. It is also known as legal equality.

Equality before the law and absolute equality

On one hand, Equality before Law prohibits providing any special privilege to any community or people. It does not talk about equal treatment in equal circumstances. According to it, there must be a very ideal condition and the state does not need to interfere in society by providing additional privileges in society.

On the other hand Right to Equality is not absolute and has several exceptions to it. Accordingly, equals should be treated equally. Equality before Law has several exceptions, for example, the Immunity provided to the President and Governor. Reservation is also a typical example that defines that the Right to Equality is not absolute and can be restricted (or rather used properly) according to the need of the society.

In the very famous case of State of West Bengal v. Anwar Ali Sarkar, the question of whether the Right to Equality is absolute or not was raised. Here Supreme Court held that the Right to equality is not absolute. In this case, the State of Bengal was found to use its power arbitrarily to refer any case to the Special Court which was made by them. It was thus held that the Act of State of Bengal violates the Right to Equality.

Equality before the law and Rule of Law

We have already discussed the Equality before Law in detail however there is also a direct connection between Equality before Law and Rule of Law. In Fact, the Rule of Law which is given by Prof. Dicey says that no one here is beyond or above the law and is equal in front of the law. Rule of Law guarantees every person the Equality before Law.

The Rule of Law states that in a country all should be treated equally and as there is no state religion so it (state) should not discriminate against any religion here the concept of uniformity should be applied. Basically, it is derived from Magna Carta (is a charter of rights signed in the UK)  which prohibits the arbitrary power of the state.

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Equal protection of the Laws

This is one of the positive concepts of Equality. Equal protection of the law is incurred from Section 1 of the 14th Amendment Act of the US constitution. According to this principle, everybody who resides in India should be treated equally and will get equal protection of the law. It guarantees all people inside the territory of India should be treated equally and the state cannot deny it (for equal protection of the law).

It puts the positive obligation on the state to ensure the prevention of law. This can be done by bringing socio-economic changes.

The same concept has been discussed in Stephens College v. The University of Delhi. In this case, the admission process of college was checked and the main issue raised was the validity of preference given to Christian students in the admission process. Here the Supreme Court held that minority institution which is receiving aid from state funds is entitled to grant preference or to reserve seats for the students of its community.

The Supreme Court held that differential treatment of candidates in the admission programme does not violate Article 14 of Indian Constitution and it is needed for the minority section.

Equality – A positive concept: Basawaraj v. the Spl. Land Acquisition Officer

In the famous case of Basawaraj v. The Spl. Land Acquisition Officer where the appellant went to the Supreme Court for the unsatisfactory decision of High Court of Karnataka. According to the appellant, the High Court committed an error by not condoning the delay as there were enough reasons for them to be not able to reach the High Court on time. It is a well established legal proposition that Article 14 of the Indian Constitution is not there to create perpetual illegality, even by extending the previous wrong decision.

It was held that here the appellant was negligent on their part as the appellant was not able to show the sufficient cause for the delay and thus here their appeal was rejected.   

Access to Justice

By equality before the law, it means everyone has access to justice. No one can be barred from access to justice. Here all should be treated equally in front of the judicial system. The word “Access to Justice” includes some basic rights of a person. By term access to justice, we mean that every person should have the right to appear in court.

Also, there are many people who are deprived of access to justice due to economical knowledge or due to lack of awareness. Here it means that the government needs to play a vital role in providing justice to them. For granting Access to Justice we need to reform our judicial system. We need to work on the legal aid system.

Protection against arbitrariness

There is a thin line of difference between being arbitrary and non-arbitrary actions. The right to equality prevents the arbitrary action of the state. This article speaks about the Equal Protection of Law and it is against the doctrine of arbitrariness. For protection against arbitrariness, there are several restrictions put on every organ of the state. It is an important part to prevent the organ of the state from making any arbitrary decision.

The doctrine of legitimate expectation

The doctrine of legitimate expectation is basically not a legal right but rather it is a moral obligation on the part of the administration to look and make laws that provide equality to all people in a territory. It gives the right of judicial review in administrative law to protect the interest of people when public authority fails to do so (or when Public authority rescinds from the representation made to a person).

It acts as a bridge between the expectation of individuals and any act of authority. However, these expectations needed to be reasonable and logical that’s why they are called legitimate expectations.

There are several instruments provided by the court for achieving the motive of authoritative law (here motive is to meet the legitimate expectation). These instruments are provided to prevent everyone against the misuse of power by the organs of the state. It put a type of restriction( although it is a moral restriction) on a state to use its power arbitrarily.

Constitutional Validity of Special Courts

It was discussed earlier that Equality before Law is not absolute and has several exceptions to it Article 246(2), is one of such exceptions. Article 246(2) states that:

“Notwithstanding anything in clause (3), Parliament and subject to clause (1), the Legislature of any State also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule”(here List III is Concurrent List). 

The validity of Special Courts which were established under the Special Courts Act has been questioned in  The Special Courts Bill v. Unknown case. It was questioned whether the formation of special courts under this Act was not violating Article 14 of the Indian Constitution. It was held that as there was reasonability and logicality information of these special courts so these courts are constitutionally valid.

Administrative discretion

It is the freedom of administration to react or decide any situation according to the circumstance. Here it becomes important for one to understand the term discretion first. Discretion basically describes the understanding of any person to decide what is wrong and what is right, what is true and what is false etc and reacting to these situations accordingly. Nextly I would like to explain the need for administrative discretion.

The legislature legislates any law on many presumptions and it cannot exactly foresee everything that is going to take place because of that law. The main purpose of administrative discretion is to maintain equality in all sections of society. However, this administrative discretion should not go beyond the line and should be used with proper care. The discretion may amount to arbitrariness.

Reasonable Classification Test

Here, in the case of Ram Krishna Dalmia v. Justice Tendolkar, the Supreme Court describes the jurisprudence of equality before the law. The test to determine whether conducts of state are constitutionally valid or not. The very famous “classification test” has been given in this case only. Here the High Court held that a Government can make a commission to enquire a case when it is necessary to do so. Here the main purpose of the government is to make any commitment to help matters of public importance.

It’s a case of administrative discretion. Here ultimately the freedom to make any decision rests in the hand of the government. In this case, also it was held that the actions of the government are reasonable and are justified by the law.

The Supreme Court decided that in any political democracy by the term equality we mean social and economic equality. There is no other kind of equality and the state should ensure this social and economic justice at any cost.

Test of Reasonable Discretion

In the very famous case of Oregano Chemical Industries v. Union of India, the petitioner(Oregano Chemical Industries) filed a petition under Article 32 of the Constitution against the order Regional Provident Fund Commissioner which imposed a high penalty under Section 14(B) of the Employees’ Provident Funds and Miscellaneous Provisions Acts, 1952 for the delayed payment of Employees’ Provident Funds and Family pension of their employees’. Here the conflict arises between Section 14(B) of Employees Provident Funds and Miscellaneous Provisions Act,1952 and Article 14 of the Indian Constitution. Here the government was directed to provide the remedy allocable to the Fund so that damages may be compensated.

Section 14(B) states the right of the Central Provident Fund Commissioner or such other officer as may be authorised by the Central Government to recover damages from the employer who have failed in the contribution to the fund-provided that such employer has given enough chance to be heard before recovering such damages.

This section also provides that their damages can be waived if there is a sick industrial company by the Central Board. Here the Court held that in this case, the government has arbitrarily used this section which is beyond the reasonable discretion of the government and is a type of violation of Article 14 of our constitution.

No equality in illegality

There cannot be equality before the law for the person who is a wrongdoer. A person who is doing illegal acts cannot ask for Right to Equality in front of a court or the judicial system. The case of Baliram Prasad Singh v. State Of Bihar of Patna High Court clearly explains that there cannot be equality for illegal acts.

Here, in this case, the petitioner was himself at fault therefore he was made to compensate for his illegal act. Here the question which may arise is what would happen to the person who has already proved that he/she has committed a crime by not treating a person equally. But actually, here the main problem is that there is no remedy for a wrongdoer.

Conclusion

At last, I would like to conclude that as our country is democratic so we need to give a certain fundamental right to every citizen and ensure that these rights should not be infringed by anyone even by the state itself. Right to Equality which is provided by our constitution is not actually being properly enforced even after so much legal obligation related to it has been put forward by our judicial system.

Our judiciary along with the other two organs of state are working very hard to maintain equality among all the citizens of our country then also until the citizens are not aware of their rights it becomes very difficult to eradicate inequality. The role of the citizens became very vital for the protection of their own rights. 

Right to equality needed to be applied in a practical sense so that no one is deprived of their rights. From Mahatma Gandhi to Bhim Rao Ambedkar everyone dreamt of the country where there is no place of discrimination.

References

1. SCC Online.
2. https://blog.ipleaders.in/right-to-equality/

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 An Overview of Right to Equality under Article 14 of the Constitution 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 “Jurisdiction of Civil Courts”.

Introduction

Jurisdiction has not been explained in the Code of Civil Procedure. In simple words, it can be described as the power of the court to settle the matter. The Indian Judiciary has invoked the ancient legal maxim ‘Ubi jus Ibi Remedium’, which means that where there is a right there is a remedy. The judicial forum must have jurisdiction to deal with the matter. Hence, the Jurisdiction commonly rests where the crime is committed.

Meaning of jurisdiction

Jurisdiction is defined as the limit of judicial authority or extent to which a court of law can exercise its authority over suits, cases, appeals etc. A 1921 Calcutta High Court judgement in the case of Hriday Nath Roy Vs Ram Chandra sought to explain the meaning of the term ‘Jurisdiction’ in detail. An investigation of the cases in the texts shows several attempts to explain the word Jurisdiction which has been declared to be the power to hear and determine the issues of law and the fact or the authority by which their judicial powers take knowledge of facts and decide causes or the authority to hear and decide the legal dispute or the power to hear and determine the subject matter in the dispute among the parties to a suit and to adjudicate or exercise any judicial power over them or the ability to hear, determine and declare judgement on issues before the court or the power or authority which is given to a court by government to understand and learn causes between parties and to give a judgement into the effect or the power to enquire into the facts to apply the law to pronounce the Judgement and put it into execution.

Lack of jurisdiction and irregular exercise of jurisdiction

Whenever the suit is made before the court the initial issue is to decide whether the court has jurisdiction to deal with the matter. If the court has all the three territorial, pecuniary or subject matter jurisdiction then simply the court has the power to deal with any of the cases. If the court does not have any of the jurisdiction then it will be recognised as lack of jurisdiction and irregular exercise of jurisdiction. When the court does not have jurisdiction to decide the case then such decision will be regarded as void or voidable depending upon the circumstances.   

The basis to determine jurisdiction

Jurisdiction is determined mainly on the grounds of:

1. Fiscal value;
2. Geographical boundaries of a court;
3. The subject matter of court.

So, the Court, before accepting notice of crime, need to take into consideration the following characteristics:

• The Fiscal value of the trial.
• The specialities of the case.
• The regional limits of the court.

It is not only suitable that panel should have any right to deal with the issue or that the court has a pecuniary jurisdiction of the court has a local jurisdiction, but the court must be able to grant the compensation in such matter. In the case of Official Trustee Vs Sachin Nath, the court held that in order to deal with the topic the court must not be the only jurisdiction to decide a specific matter but also the court has the ability to give the order for which it is examined.

Courts and Tribunals

Jurisdiction of foreign courts

A foreign court is described as a court outside India and not authorised or continued by the authority of the Central Government, and a foreign judgement means a judgement of a foreign court. In other words, a foreign judgement means an adjudication by a foreign court upon a matter before it. The following conditions would give power to the foreign courts to adjudicate a matter presented before it:

1. When the person is a subject of a foreign country in which the judgement has been obtained.
2. If he was a resident of a foreign country when the action was commenced and the summons was served on him.
3. When the person is in the character of plaintiff chooses the foreign court as the forum for taking action in which forum he issued later.
4. When the party on summons voluntarily appeared.
5. When through an agreement, a person has agreed to present himself to the forum in which the judgement is obtained.

Kinds of jurisdiction

Territorial or local jurisdiction

Under this territorial or local jurisdiction, the geographical limits of a court’s authority are clearly delineated and specified. It cannot exercise authority beyond that geographical/ territorial limit. For example, if a certain crime is committed in Madhya Pradesh, only the courts of law within the borders of Madhya Pradesh can hear and decide the case. Furthermore, Section 16 of the Code of Civil Procedure explains the territorial jurisdiction on the grounds of the location of the immovable property. In the case of Harshad Chiman Lal Modi Vs D.L.F Universal Ltd , the court interpreted Section 16 that the suit pertaining to immovable property should be brought to the court. The court does not have the power to decide the rights of property which are not situated. However, the court can still pass a relief if the opposite party agrees to try the suit in such a case.

Pecuniary jurisdiction

Pecuniary means ‘related to capital.’ It approaches the question of whether the court is competent to try the case of the financial value. The code allows analysing the case unless the suit’s value exceeds the financial limit of the court. Section 15 of the Code of Civil Procedure commands the organisation of the suit in the court of the low grade. It refers to pecuniary jurisdiction of Civil court. It is a course of the method and it does not affect the jurisdiction of the court. The main objective of establishing pecuniary jurisdiction is to prevent the court of a higher level from getting burdened and to provide assistance to the parties. However, the court shall interfere if it finds the judgment to be wrong. For example, ’A ’wants to accuse ‘B’ due to a violation of the contract to obtain Rs 5000 in Bombay. The Bombay High Court has original jurisdiction and small causes court with the jurisdiction up to Rs 50000. So, a suit to obtain Rs 5000 should ideally be dealt with small causes court. In the case of Karan Singh Vs Chaman Paswan the plaintiff filed a suit in the subordinate court involving an amount of  Rs 2950, but the court rejected the case. Later his next appeal was allowed by the High Court, but it ordered him to pay the deficit amount. The appellant contested that the decision of the district court will be a nullity, but the High Court dismissed the claim. Later the Supreme Court confirmed the decision of the High Court declaring that the decision of district court won’t be void.

Jurisdiction as to the subject matter

The subject matter can be defined as the authority vested in a court to understand and try cases concerning a special type of subject matter. In other words, it means that some courts are banned from hearing cases of a certain nature. No question of choices can be decided by the court which do not have subject matter jurisdiction. Section 21 of the Code of Civil Procedure is related to the stage challenging the jurisdiction. For Example, “Ranveer”, a resident of Sonipat bought a food item of ‘AA’ brand that was plagued with pests. He should prosecute ‘ZZ’ company in Sonipat District forum rather than District Civil Court of Sonipat.

Original and appellate jurisdiction

Appellate jurisdiction refers to the court’s authority to review or rehearsal the cases that have been already decided in the lower courts. In the Indian circumstances, both the High Court and Supreme Court have the appellate jurisdiction to take the subjects that are bought in the form of appeals.

Original Jurisdiction refers to the court’s authority to take notice of cases that could be decided in these courts in the first instance itself. Unlike appellate jurisdiction wherein courts review the previously decided matter, here the cases are heard afresh.

Exclusive and concurrent jurisdiction

In Civil Procedure, exclusive jurisdiction means where a single court has the authority to decide a case to the rejection of all the courts. This jurisdiction is decided on the basis of the subject matter dealt with by a specific court. For example, the U.S District courts have particular jurisdiction on insolvency topics.

Concurrent jurisdiction exists where two or more courts from different systems simultaneously have jurisdiction over a particular case. In this situation, parties will try to have their civil or criminal case heard in the court that they perceive will be most favourable to them.

General and special jurisdiction

General jurisdiction means that general courts do not limit themselves to hearing only one type of cases. This type of jurisdiction means that a court has the power to hear all types of cases. So the court that has general jurisdiction can hear criminal, civil, family court case and much more.

Specific jurisdiction is the ability of the court to hear a lawsuit in a state other than the defendant’s home state if that defendant has minimum contacts within the state where the suit will be tried.

Legal and equitable jurisdiction

Equitable jurisdiction belongs to the authorities of the courts to take specific actions and pass some orders in order to deliver an equitable and reasonable outcome. These judgments are usually outside the purview of law, in the sense that support provided by the courts may not be necessarily confirmed by the statue. In the case of K.K.Velusamy Vs N.Palanisamy, the Supreme Court of India held that Section 151 does not give any special jurisdiction to civil courts, but only presents for the application of discretionary power to achieve the ends of justice. This suggests that the court cannot give any such order which may be denied under any law in such an order that may be prohibited under any law in order to achieve the ends of justice. This would lead to the conclusion that such equitable jurisdiction is secondary to the authority of the courts to implement the law.

Expounding and expanding jurisdiction

Expounding jurisdiction means to describe, clarify and explain jurisdiction. Expanding jurisdiction means to develop, expand or prolong jurisdiction. It is the duty of the court to clarify its jurisdiction and it is not proper for the court to extend its jurisdiction.

Jurisdiction of civil court

Section 9 of CPC

Section 9 of the Code of Civil procedure deals with the jurisdiction of civil courts in India. It declares that the court shall have jurisdiction to try all lawsuits of civil nature accepting suits of which their cognizance is either expressly or impliedly barred.

Conditions

A Civil court has jurisdiction to decide a suit if two requirements are fulfilled:

1. The suit must be of a civil nature.
2. The cognizance of such a suit should not have been expressly or impliedly barred.

i) The suit of civil nature

Meaning

‘Civil Suit’ has not been explained in any act. Any suit that is not criminal in nature can be termed as a suit of a civil nature. Any suit that pertains to determination and implementation of civil rights may be defined as a civil suit. In the case of Kehar Singh Nihal Singh Vs Custodian General, the court elaborated the concept of Civil proceeding. It was defined as a grant of private rights to individuals or corporations of society. The objective of the action is the reward or recovery of private rights. In other words, the civil action may be described as the proceeding between two parties for implementation or redressal of private rights. 

Nature and scope

The expression ‘suit of civil nature’ will cover the private rights and obligations of the citizens. The political and religious question is not covered by a suit of a civil nature. A suit in which principal question is related to caste or religion is not of a suit of a civil nature. But if the main question in a suit of civil nature involves the decision relating to caste question or to religious rites and ceremonies it does not terminate to be a suit of a civil nature. The court has jurisdiction to decide those questions also, in order to decide the important question which is of civil nature.

Explanation of doctrine

Each phrase and description assigns a duty on the court to apply jurisdiction for the accomplishment of rights. No court can decline to examine if it is of the information mentioned in Section 9 of the Code of Civil Procedure. The word civil according to the dictionary suggests, associating to a citizen as an individual. The word nature has been called the primary qualities of a person or thing. The word civil nature is prevalent than the word civil proceeding. The doctrine described the theory of the jurisdiction of civil courts under section 9 of the Code of Civil Procedure in PMA Metropolitan Vs M.M. Marthoma the Supreme Court observed that:

• The phrases used in section 9 has a positive and negative intent.
• The original part has a broader sense as it includes all the problems of civil nature; on the other hand, the latter part has a wider sense as it refuses the topic which is impliedly or expressly barred.
• The two reasons mentioned in Section 9 reveals the legislative purposes.
• It designated duty on the court to perform the jurisdiction for the implementation of private rights
• No court has the benefit to refuse the matter which introduces under this section
• It is necessary to take the knowledge of matter because the word “shall” is used, which means that it is a compulsory section.

In the case of  Shankar Narayanan Potti vs K. Sreedevi, the Supreme Court held that the ‘Civil Court has primary jurisdiction in all types of civil matters as per Section 9 of CPC unless the action is expressly or impliedly barred.” This means that Legislature can defeat the jurisdiction of the civil court by adding a provision or clause in any Act itself. In the case of Shri Panch Nagar Park vs Purushottam Das it was held that if there are no specific terms in any statute the court needs to look into design, plan and suitable provisions of the Act in order to find implied dismissal of the jurisdiction of a civil court.

Test

A suit in which the right to property or to an office is struck is a suit of a civil nature, notwithstanding that such right may depend only on the choice of a question as to religious rituals or ceremonies.

ii) Cognizance not barred

A claimant having a complaint of a civil nature has the power to begin a civil suit unless its cognizance is barred, either expressly or impliedly.

Suits expressly barred

A suit is said to expressly barred when it is prohibited by the statute for the time being in force. It is subject to the competent legislature to bar the jurisdiction of civil courts with regard to a specific class of suits of civil nature, provided that, in doing so it retains itself within the scope of legislation given to it and does not contradict any terms of the constitution.

Suits impliedly barred

A suit is said to be impliedly barred when it is said to be excluded by general principles of law. When a specific remedy is given by statute, it, therefore, denies a person who requires a remedy of any different form than is given by statute. When an act formed an obligation and made its performance in a specified manner that performance cannot be implemented in any other manner.

Presumption as to jurisdiction

In dealing with the subject whether a civil court’s jurisdiction to analyse a suit is barred or not, it is necessary to bear in mind that every opinion should be made in support of the jurisdiction of a civil court. The rejection of the jurisdiction of a civil court to entertain civil causes should not be easily inferred unless the appropriate law contains express terms to that effect or points to a significant and inevitable implication of nature.

Burden of proof

It is well proved that it is for the party who tries to dismiss the jurisdiction of the civil court to establish it. It is uniformly well established that the statue dismissing the jurisdiction of a civil court must be strictly explained. In the case of doubt as to jurisdiction, the court should lean towards the theory of jurisdiction. A civil court has original authority to determine the issue of its own jurisdiction although as a consequence of such query it may become that it has no jurisdiction to consider the suit.

Exclusion of jurisdiction: Limitations

The common assumption is that the civil court has the jurisdiction to try the case. The prosecution has a case of a civil nature has, independent of any statute, a power to initiate a suit in a civil court unless its notice is expressly or impliedly barred yet it cannot be said that the jurisdiction is entirely eliminated. In the case of Secretary of State Vs Mask & Co, the Privy Council rightly mentioned that it is established law that the exclusion of jurisdiction of the civil court is not to be readily inferred but that such prohibition is either impliedly barred or explicitly expressed. It is also established that civil court has jurisdiction to examine into the cases which have not complied with fundamental principles of judicial procedure. In the case of State of A.P. Vs Majeti Laxmi Kanth Rao, the apex court has analysed to decide the elimination of jurisdiction of the Civil Courts. Firstly, the legislative intent to remove the suit is to be decided. It could be either directly or implicitly. The court needs to find and deduce the causes for the exclusion of the Civil courts and the explanation for it but the reason is not directed for judicial examination. After the court is convinced with the grounds, the court must find out whether the statute that prohibits the jurisdiction grants for an alternative remedy. In case there is no alternative remedy possible, the civil court’s jurisdiction cannot be eliminated. But it was ruled in Balawwa v. Hasanabi, Civil court’s jurisdiction is terminated with regard to a tribunal established by a statute only to the extent that the support granted by the tribunal in question. In this aspect, the Allahabad High court in various judgements has held that the suit is decreased from the jurisdiction of civil courts of the knowledge of the complete suit is forbidden. It means that for some suits wherein some parts are not decided by the civil court because of implied or express prohibition, it does not mean that the entire suit will be prohibited. As the additional points of law are exceeding the purview of the tribunal or even if it is within its scope of the particular tribunal regulated under the act, civil court’s jurisdiction is not restrained as it could still pass judgement as it still has the original jurisdiction to consider the suits. The situation remains obscure whether the appropriate tribunals under the act can give the order with regard to the part of the trial wherein the jurisdiction of the civil court is obstructed.

Principles of exclusion of jurisdiction of civil court

Dhulabhai v. state of MP

Hidyatullah summarized the following principles relating to exclusion of jurisdiction of civil courts:

1. When a statute provides finality to the orders of particular tribunals, the civil court jurisdiction must be kept to be prohibited. Such a provision does not eliminate those cases where the terms of the act have not complied with fundamental laws of judicial method.
2. When there is an express bar of jurisdiction of the court, an examination of a scheme of a particular act to find the adequacy or sufficiency of remedies provided may be important but this is not crucial for maintaining the jurisdiction of a civil court 
3. It examines the terms of a specific act as ultra vires cannot be brought before tribunals constituted under the act. Even the High Court cannot go for revision or reference from the decision of the tribunal.
4. When the terms are already stated illegal or declared the constitutionality of any terms is to be challenged, then a suit is open. A writ of certiorari may introduce a direction to refund but it is not a necessary remedy to compensate a suit.
5. When the particular Act includes no method for a return of tax collected in excess of constitutional goals, a suit lies.
6. Prohibition of the jurisdiction of a civil court is not ready to be inferred unless the conditions above set down apply. 

Premier automobiles v. K.D Wadke

The Supreme Court laid down the following principles as relevant to the jurisdiction of civil courts in association with industrial disputes:

1. If a conflict is not an industrial conflict, nor does it correlate to the enforcement of any other right under the industrial dispute act, the remedy lies only in civil court.
2. If a conflict is an industrial conflict emerging out of a right or liability under the general or public law, the jurisdiction of the court is an alternative left to the person involved to decide his remedy for the support which is sufficient to be given in a particular remedy.
3. If an industrial dispute relates to the implementation of the right or a duty organised under the act, then the only remedy available is to get adjudication under the act.

Rajasthan SRTC v. Krishna Kant

The Supreme court summarized the following principles applicable to industrial disputes:

1. When the conflict originates from the common law of contract, a suit registered in civil court is not maintainable even though such conflict establish industrial dispute within the definition of Section 2(k) of Industrial Disputes Act, 1947.
2. When a dispute involves the recognition or enforcement of rights created by an enactment which is called sister enactments and do not provide a forum for the resolution of such dispute, the only remedy is to approach the forum created, provided they constitute industrial dispute within Section 2(k) of Industrial Disputes Act, 1947.
3. It is not right to say that the assistance provided by Industrial dispute act are not equally useful for the ground that entrance to forum depends upon a recommendation being made by the relevant government.
4. The power given is the power to suggest and not the power to decide, though it may be that the government is allowed to examine.
5. It is consistent with the policy of law aforesaid i.e command to parliament and state legislature to declare a provision allowing a workman to address the labour court- i.e., without the need of a recommendation by the government in case of industrial dispute included by Section 2-A of the Industrial Disputes Act.

Conclusion 

Civil court has jurisdiction to investigate whether tribunal and quasi-judicial bodies or legal executive acted within their jurisdiction. It can be presumed that section 9 essentially deals with the issue of the civil court’s jurisdiction to consider a matter. Civil court has jurisdiction to consider a suit of civil nature except when it’s notification is expressly barred or bared by significant suggestion. Civil court has jurisdiction to resolve the problem of its jurisdiction.

Reference

1. (1959) AIR P&H 58.
2.  Code of Civil Procedure.

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 Nirmalya Bhattacharya, pursuing a Certificate Course in Labour, Employment and Industrial Laws for HR Managers from LawSikho.com. Here he discusses “Who can initiate a proceeding for a labour law violation and how?” 

The laws related to labour and employment in India come under the broader category of “Industrial Law”. Industrial Law in India id more or less vintage in nature though it is adopting a modern approach in recent years keeping in mind the flourish in IT industries and Service Sectors. However, the consequences of any violation of the provisions are becoming more and more stringent.

For the purpose of this article, I am taking into consideration the following acts and amendments thereto and shall try to find out the initiator of a proceeding for a violation under these statutes.

1. Minimum Wages Act, 1948
2. Payment of Wages Act, 1936
3. The Contract Labour (Regulation and Abolition) Act, 1970
4. The Factories Act, 1948
5. Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 
6. Payment of Bonus Act, 1965
7. Payment of Gratuity Act, 1972
8. Equal Remuneration Act, 1976
9. Maternity Benefit Act 1961
10. Industrial Employment (Standing Orders) Act 1946

Minimum Wages Act, 1948

Under the provisions of the act violation(s) may take place by the employer. In such cases, under section 20(2) of the act, the employee himself or herself or any appointed legal practitioner or any official of a registered trade union who has been duly authorised by the employee in writing to act in his behalf can make an application to the appropriate authority as appointed by the Appropriate Government under Section 20(1). Any inspector or any other person with the permission granted by the authority under Section 20(1) can also make such application for initiation of proceedings.

However, such application is to be made within 6 months from the date on which the minimum wage or other amounts become applicable. In such cases, where there is a delay of more than 6 months, the Authority can admit the application if and only if he is satisfied with the cause of the delay.

Upon receiving such application the Authority shall give the employer and the applicant opportunity of being heard and after such necessary enquiry shall give his directions as per section 20(3) of the act.

Payment of Wages Act, 1936

Alike minimum Wages Act, a violation under the Payment of Wages Act 1936 can be made by the employer and/ or the person responsible for payment of wages. As per section 15(2) of the act, in cases of any contravention to the provisions related to the payment of wages or any unlawful deduction from wages, the affected employed person himself or any legal practitioner or any official of any registered trade union who has been authorised in writing to apply on the behalf of the employed person or any inspector under this act or any other person permitted by the appointed authority under section 15(1) `can make an application to the Authority as appointed by the Appropriate Government under section 15 sub-section1.

Such application is to be made within 12 months from the date on which the unlawful deduction has been made and/or from the date on which the payment of wages was due. In such cases, where there is a delay of more than 12 months, the Authority can admit the application if and only if he is satisfied with the cause of the delay. [Section 15(2)]

Upon receiving such application the Authority shall give the employer and the applicant opportunity of being heard and after such necessary enquiry shall give his directions as per section 15(3) of the act.

The Contract Labour (Regulation and Abolition) Act, 1970

As per section 15 (1) of the any person who is aggrieved by an order for the reasons like Registration of Establishment (Section 7) or revocation of registration in some specific cases (Section 8) or licensing of the contractor (Section 12) or revocation, suspension and amendment of licenses (section 14) can make an appeal to the appellate officer within 30 days from the date of communication of the above-referred order.

However, the appellate officer can accept the appeal even after 30 days provided he is satisfied with the cause of the delay.

After receiving the order the appellate officer shall dispose of the application at the earliest possible after giving the appellant a scope of being heard. (Section 15(2))

In this context, it is to be mentioned that as per section 26 no court shall take a notice of any offence under this Act unless the same is made by the inspector or with his sanction in writing.

Factories Act, 1948

For any proceedings under Factories Act 1948, the Manager of a factory to whom an order has been issued in writing by an Inspector under any provision of the act, or the occupier of the factory, within 30 days of receiving such order can make an appeal to the prescribed authority against such order. 

Employees’ Provident Funds and Miscellaneous Provisions Act 1952

As per section 7-I of the act, any person aggrieved by a notification issued by the Central Government or any other authority can make an appeal to the Tribunal against such notification. Such notifications can be regarding 

1. Applicability of the provisions of the act as per section 1(3) and section 1(4) of the act
2. Power to apply the act to an establishment which has a common provident fund with some other establishment [As per section 3 of the act]
3. Determination of amount due from an employer as per section 7-A(1) of the act or any review related to that [Section 7-B]
4. Determination of escaped amount as per section 7-C
5. Recovery of damages in case of failure by the employer in the payment of contribution as per section 14B.

As per Section 7-K(1) of the act, the appellant can present the case on his own or can avail the assistance of a legal practitioner of his choice to represent his case before the tribunal.

Payment of Bonus Act, 1965

Under Section 21 of the aforesaid act, whenever an employee is entitled to get any money as bonus, whether, under a settlement or an award or an agreement, the employee himself or any other person duly authorised by the employee in writing can make an application to the appropriate government or to any other authority whom the appropriate government has appointed for this purpose. This application is subject to the satisfaction of the authority that the amount is actually due. In case of death of the employee, his assignee or heirs are also entitled to make the application. 

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Such an application is to be made within one year from the date on which the money becomes due to the employee from the employer. In such cases, where there is a delay of more than one year, the Authority can accept the application if and only if he is satisfied with the cause of the delay.

Payment of Gratuity Act, 1972

Under Section 8 of the above-referred act, when gratuity is not paid to an employee by the employer, within the stipulated time, the aggrieved person himself can make an application to the controlling authority. After receiving such application issue a certificate for that amount to the Collector, who shall recover the same, along with compound interest over and above at such rate as the Central Government may, by notification, specify from the date of expiry of the prescribed time, as arrears of land revenue and pay the same to the employee.

However, in such cases, the employer shall be given an opportunity to get heard and the amount of interest shall never exceed the amount of payable gratuity.

Equal Remuneration Act, 1976

As per the provision of Section 7(1)(a) of the act and Rule, 3(1) of the Equal Remuneration Rules 1976, the aggrieved employee can make the complaint to the Assistant Labour Commissioner or Deputy Labour Commissioner, who had been appointed as the Authority by the Appropriate Government. Here we need to remember that as per the provision of Section 7(1) the said authority must not be below the rank of Labour Officer.

Further, as per the provision Rule 3(3) of the Equal Remuneration Rules 1976, the aggrieved employee can lodge the complaint on her own or by any legal practitioner, or by any official of a registered trade union duly authorised in writing to appear and act on her behalf. This is also to be mentioned here that even the Inspector, as appointed as per Section 9 of the Act or any other person duly appointed by the Authority with proper permission, are also entitled to lodge a complaint on the grounds of Section 7(1)(a) and 7(1)(b) of the Act.

Maternity Benefit Act, 1961

As per section 12(2)(b) of the act, any woman who is deprived of any maternity benefit or medical bonus or both can make an appeal to the appropriate authority within sixty days from the date when such deprivation has been communicated to her. 

In case of such appeals, the decision from the authority regarding the rightness of the deprivation shall be treated as final. 

In addition to the above, as per section 17(1), any woman who claims that her entitlements for maternity benefit or any other amount under this act have been improperly withheld may make a complaint to the inspector, appointed as per section 14 of the act. The same process is applicable in case of the death of a woman who was entitled to maternity benefit(s). In such a case, any person can make a complaint to the inspector.

Industrial Employment (Standing Orders) Act, 1946

As per section 6(1) of the act, any aggrieved employer, workmen, trade union or other prescribed representative of the workmen can make an appeal to the appellate authority against the certified standing order based on section 5(2) of the act. This appeal has to be made within 30 days from the date on which the copies of the certified standing order have been sent abiding by section 5(3) of the act. The Appellate Authority, after receiving such application shall order the final certification as per the earlier copy issues by the Certifying Officer or after making such modifications as he thinks to deem fit. The Appellate Authority’s decision shall be treated as final.

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 Abhishek Dubey student of a 2nd-year student of BBA LL.B. This article deals with the details of different types of merger and acquisition structure and the difference between them.

Introduction

Mergers and acquisitions have become very popular in the corporate sector today. Both the terms look similar but there is the key difference between them. A merger occurs when two separate companies combine and form a new entity which results in new management and ownership.

An acquisition refers to the takeover of one entity by another, in acquisition small entity becomes part of the new entity. In an acquisition, one entity takes over the management of other entity and then all the further decisions are taken by them together as one company.  A merger and acquisition structure is an agreement between the two parties which lays down the rights and obligations of both parties. It lays down the duty and the rights of each party for carrying out in entity.

Basics of merger and acquisition structure

Merger and acquisition occur when two companies come together to form a new entity due to economic, social, personal reasons. It is possible only when two entities or parties mutually agree with each other. The terms and conditions on which they agree is known as a merger and acquisition deal structure. Deal structure is one of the steps which must be taken in a merger or acquisition. In deal structure, the objective of the entity is specified and every party involved are satisfied with the objective and also the risks are initiated and each party must bear that risk. The deal structure process involves:

• Negotiation.
• Observation of risk and how they will be managed.
• The condition under which negotiation will be cancelled.
• Amount of risk that can be tolerated.

Different Types of Merger and Acquisition Structure

There are five types of merger and acquisition structure:

1. Asset Sale

Asset sale refers to the sale of assets when a buyer purchases the assets of the company, where the individual value of assets is assigned to each asset. It is the best deal structure when it involves a cash transaction. The buyer chooses the assets that he wants to buy and can also acquire existing liabilities he wants to take up. Sometimes companies use this method when they have a lot of debt. When entities have a large amount of debts and they don’t pay it, their assets becomes a non-performing asset. To recover the loans, banks force companies to sell their assets.

Advantages of Asset sale:

• It gives a choice to the buyer the assets to purchase and not to purchase.
• The selling company continue to exist until and unless it winds up completely.

Disadvantages of Asset Sale:

• It restricts the buyer to purchase non-tangible assets.
• This may cost a high amount of tax to both buyer and seller.

Cases where banks forced the companies to sell their assets:

1. Reliance Group: Anil Ambani owes Rs.1,21,000 crore and had an annual interest liability of Rs. 8,299 crore asset put on sale by Reliance Group which included a telecommunication tower and optic fibre which together amounts to Rs.30,000 crore.
2. Ruia’s Essar Group: It has a gross debt of Rs.1,01,461 crore. The group is looking to sell its Essar oils which amounts to Rs 20 million tonnes per annum and also the Vadinar refinery, for Rs.25000 crore.

2. Slump Sale

As the name suggests, slump sale is the transfer of the whole business on ‘Going Concern Basis’ i.e the operation of entity will continue only the entity assets will be liquidated. In a slump sale, sale acquirer is interested not only in assets but the whole operation of the business. The operation continues as usual but under the arm of the acquirer.

Examples of Slump sale in India:

1. Tata steel acquired the Usha Martin Ltd for Rs. 4300-4700 crore that would help in the reduction of debt of Usha Martin Ltd.
2. Tata Chemicals Ltd. acquired the business of precipitated silica for a consideration of Rs.123 crore.

Advantages of Slump Sale:

• The motive for acquiring is that the purchaser is either to expand its existing business or diversify a new business.
• The entity continues to exist and only assets become liquidated.

Disadvantages of Slump Sale:

• No values are assigned to individual assets and liabilities.
• If an entity has been undertaken for less than 36 months prior to slump sale then short capital gains interest will be laid down and the rate of which will be 34%.

3. Share Sale 

As the name suggests, it refers to a complete underlying of assets and liabilities. The acquisition of shares is the most common method of acquiring a company.

When the target has made a good image in the market and established a loyal customer base then it acquires the company along with the business.

Example of a Share sale in India:

• Walmart’s acquisition of Flipkart is the biggest acquisition in India and it acquired 77% of Flipkart share which amounts to $16 million.
• In 2007, Tata acquired a share of 52 per cent in Hutchison Essar Ltd. which amounts for $10 million.
• Tata Motor in the year 2008 acquired Jaguar Land Rover which amounted to $2.6 million.
• In 2009, ONGC acquired Imperial Energy, the UK based operating in Russia which amounted to $1.3 billion.  

Advantages of share sale:

• When a share is sold the seller is benefited from tax.
• A share sale is one of the simplest and cleanest methods from the seller’s point of view.
• If there are losses in the company then, in that case, the sale of shares are the best method to write off against corporate tax liabilities according to the buyer’s point of view.
• The relationship of the customer, supplier, banks after share sale is also transferred but the business continues to operate.

Disadvantages of the Share sale:

• Third-party approval is sometimes required which can result in creating problem and results in delay or even sometimes completely destroy the structure.
• The value of some assets may result in loss such as transfer of patents and license.
• If a business sells on gain then tax is also deducted.
• The tax calculation sometimes is very complex.

4. Amalgamation 

It refers to a situation when the assets of the two companies are vested in one company. It is also known as the combination of one or more companies as one entity. It is also a process of absorption, where one powerful company acquires the weaker entity. But it differs from a merger that neither of the two companies is considered as a legal entity but in amalgamation, the assets and liabilities of the two companies are combined and they are considered a legal entity.

Example of Amalgamation in India:

1. Maruti operating in India and Suzuki operating in Japan amalgamated to form a new company i.e. Maruti Suzuki Pvt.Ltd.
2. Satyam computers and Tech Mahindra Ltd.is an example of an Amalgamated company.

Advantages of Amalgamation:

• Competition between the two companies gets eliminated.
• Research and development are increased.
• Operating costs are reduced.
• Prices of goods are stable.

Disadvantages of Amalgamation:

• This may result in a reduction of employees.
• Reduction in competition.
• Goodwill and image of the company lost.

5. Demerger

As the name suggests, when a large company breaks into small pieces or one or more entity and form a new one. It is also a manner of forming the business through the court-driven process. Demerger allows a company to work in a systematic manner which increases efficiency and effectiveness. It also gives shareholders an opportunity to participate in the management, operation, decision-making process.

Demerger also happens when a shareholder decides to unlock its core business into one new entity.

Example of Demerger in India:

Wipro Ltd. the third largest IT industry in India demerged into 3 subunits, Wipro consumer care and lightning, Wipro product and services and lastly, Wipro infrastructure medical and engineering diagnosis all three companies together contributed to 14 percent of revenue.

The IT business contributes to 86 percent of revenue. In the financial year 2012, the company earned an operating profit of a total of 94 percent.

Global investment business USB said that shareholders have only one option to directly receive a share from the owner.

Barclay says that shareholders will get 12-15 per cent in terms of compensation from demerger etc.

Advantages of Demerger are as follows:

• Demerger results in smooth operation when one entity split into two or more companies.
• When the company is big there will be a lot of chaos and confusion in and each department will blame each other when it will split then the responsibility will be limited and fixed.
• When demerger happens then the efficiency of operation of companies increases due to the specialisation.

Disadvantages of Demerger are as follows:

• The companies lose their economies of scale when the company is big and there is a large economy of scale but after they split the economies of scale reduces.
• This also results in a clash of interests and egos because of the presence of more than one top management.
• This will also result in dissatisfaction of employees because they may be asked to move from one entity to another otherwise it may also result in loss of employees job due to the requirement of fewer employees after being split.

Difference between the structure of Merger and Acquisition

Manner of undertaking asset sale and slump sale

Asset sale and slump sale can be undertaken through a business transfer agreement. In Business Transfer Agreement the terms and conditions for sale of assets as well as consideration and liabilities attached are to be laid down.

Manner of undertaking share purchase

In a share purchase, the valuation of a share is done by a chartered accountant and deed which governs the share purchase is a share purchase agreement. In a share purchase agreement, the value of a share, terms and conditions and rights of acquirer and acquiree are governed and in case acquirer is a foreign entity then the policy of FDI are governed.

Manner of undertaking amalgamation and demerger

1. Conducting a board meeting for consideration of the proposal for amalgamation and demerger.
2. Submitting the application to the NCLT with relevant documents such as

• Notice of admission in form no NCLT-2.
• An affidavit in form No. NCLT-6.
• A copy of the scheme of amalgamation.

3. The scheme of amalgamation should contain all relevant information such as the current financial position of the company, audit reports, any proceeding of company pending in court if any.
4. It may also contain information regarding the reduction of share capital etc.
5. Any scheme of corporate debts, if any consented by not less than 70 per cent of the creditor.
6. On receiving such application tribunal may call the creditor for the meeting.
7. The copy of the scheme needs to be submitted to central government authorities, income tax authorities, etc.
8. For the approval of the scheme, the meeting is called in a manner as the tribunal may direct  and when 3/4th of creditors approve it the scheme becomes effective.
9. If any modification is necessary the tribunal makes arrangement or compromises are done as deemed to be fit by the tribunal.

Conclusion

A deal structure is step in merger and acquisition structure methods are asset sale, share sale etc. Each structure has its own advantages and limitations and structuring a proper deal structure can be complicated and challenging sometimes. Employing the right kind of financial, legal advice can convert it into less complicated. The two important documents required for good deal structure letter of intent and term sheet. The term sheet is not legally binding until and unless stated by every parties it states the terms and conditions of financial statement and letter of intent it is a document stating the intention of buyer and seller.

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 Types of Merger and Acquisition Structure Under Companies Act appeared first on iPleaders.

This article is written by Lucas Goodwin.

Facing criminal charges is scary, very scary. Once you are accused of a criminal offense, you need to be prepared for a long, complex and exhausting journey that will essentially require an experienced and reliable legal service to get you through.

This means the right Mississauga criminal lawyer will essentially be the difference between your freedom and getting convicted. Your legal criminal defense attorney will be the lone warrior who will stand by you and defend you to the best of his abilities in the courtroom. He will make arguments on your case, refute the prosecution, gives the legal opinion and walk you through the criminal justice system.

So, how to find the right Mississauga criminal lawyer?

Well, you got to ask some questions and below we have come up with some important considerations that you need to make while choosing a criminal defense attorney.

1. Know their specific experience

Yes, we are concerned about a specific experience. To put it in perspective, not all lawyers are specialized in criminal legal justice and thereby it’s important to choose a criminal lawyer who has specific experience as a criminal defense attorney. He should have the educational, training and practical experience in the criminal legal system to be able to aptly defend you.

Remember, we are talking about two types of specific experience, firstly, the person should have extensive knowledge about the criminal justice system and secondly, he should have the courtroom experience to defend clients indicted in criminal cases.

Here are some questions that you should ask from Mississauga criminal lawyer:

• Their law school.
• Their courtroom experience.
• The frequency of visiting the courtroom where your case is (this is really important because a criminal lawyer who frequently defends clients at that specific courtroom will have a good working relationship with judges, clerks and other staff that make up the court).
• Their success ratio for past cases of similar nature.
• Their experience in dealing with specific charges for which you are being prosecuted.
• Their affiliations to local bar councils and other concerned professional organizations.

Remember, knowing what you need to ask your potential criminal defense attorney is already half the battle.

2. Get to know the team

Ok, this is important because most of the time senior lawyers or big law firms tend to allocate cases to junior team members. While this won’t be the case if you choose a small firm where a solo lawyer will work with you right through.

Honestly, working with small firms or solo lawyers have many benefits and the best of all is the fact that you will actually be working with the person whose name is written on the door and that person will be available to all your concerns and queries from beginning to end.

Alternatively, lawyers from bigger law firms tend to work alongside numerous junior lawyers, paralegals or even assistants. They all work in close collaborations helping out the senior lawyer to prepare the case. Thereby, in such a scenario it is a good idea to know as many of them as possible to judge their experience and working system before making the final decision.

3. Check References

If you are to meet any experienced and qualified one thing they all have in common is a long list of satisfied past clients, who have shared their experiences generously online.

This means that when you are looking for the right criminal lawyer, check their online websites for the “testimonials”. You should also check out the reviews of individual clients on different third-party review sites to get an unbiased view of the professionalism and expertise of the lawyer.

4. Check out their confidence in practice

As we said above, your Criminal lawyer Mississauga will be the lone warrior responsible to get you through the complexities of the criminal legal system. And it’s no hidden that criminal laws are quite complex and intricate as compared to other legal laws. Thereby, you need a lawyer who has the confidence in his practice to defend you boldly and smartly in front of the court.

For the most part, the confidence of a criminal lawyer is directly associated with his experience in the legal system and his abilities to look at the case from different perspectives. He should be smart enough to understand the prosecutor’s tendencies for your case and make the necessary arrangements upfront. This is important because in various criminal cases, the outcome is a deal between the prosecutor and you and having an experienced lawyer who already understands the complexities will only help.

5. Assess them

Remember, your choice of lawyer will make all the difference between you getting prosecuted and getting freed and thereby, you don’t have to be shy of assessing the capabilities of your lawyer.

Here are some questions you should ask any potential criminal lawyer to assess their understanding of your case:

• Which part of my case will work in my favor?
• Which part of my case will go against me?
• What should I expect over the course of the legal battle?

All of this is important for you, not only to assess the experience of your lawyer but also to mentally prepare yourself for the long battle to come.

6. Know the price you need to pay

To be brutally honest, legal services are expensive (more expensive than you would think) and criminal legal services are even costlier.

Some factors that will influence the cost of the lawyer will include his experience, school of graduation, case nature and their way of charging (some lawyers charge by the hour rate, while others charge a flat fee).

In general, flat fee charges are the more common and preferred method in criminal cases. Nonetheless, you need to be aware of the precise amount you will have to pay for the entire legal battle.

8. Be prepared with the Right Documents

Up until now, you must have become aware of the fact that a courtroom case isn’t a solo affair and that you will need to have input from as many lawyers as possible to know your interests and choose the best Mississauga criminal lawyer.

Here are some important documents which you should have prepared in advance whenever meeting a criminal lawyer:

• Any courtroom document that lists the courtroom charges along with your appearance date.
• Bail papers.
• Any paper that has been provided by police after a search of your home or other property.
• All relevant information you may find to assist the lawyer with the case (emails, tickets, letters, etc).

Conclusion

Getting charged with a criminal offense can be life-changing and honestly, no one wants to be charged with a criminal offense. However, unfortunately, if you are to be prosecuted for a criminal charge, your best bet to defend your rights and regain your dignity and freedom is to hire the best Mississauga criminal lawyer, who can help you navigate through the complexities of the criminal legal system.

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

The post Choosing a Criminal Defense Attorney in Mississauga: what you need to know!  appeared first on iPleaders.

This article is written by Samyak Jain.

Abstract

Preventive detention imposed generally as an anticipatory measure and does not relate to an offence, while criminal proceedings are to punish a person for an offence committed by him. The main rationale behind the preventive detention is not to punish but to prevent the detainees from doing any criminal activity against the state. Preventive detention is something against the nature of the democratic state because of violation of the fundamental rights. Justice K.S. Puttaswamy (Retd.) V. Union of India case talks about the privacy, i.e., right to be alone. It talks about the increasing scope of personal liberty of individuals in terms of privacy. The major concern regarding preventive detention is that arresting person on mere suspicion is absolute violation of his inalienable right to liberty. There is a conflicting view regarding preventive detention between human right activists, who are in favor of liberty of the individual and exigencies of the state on the other side.  This balancing is of the utmost importance because there is a need to maintain momentum between human freedom on one hand and state’s obligations towards the national security. Just like other fundamental rights guaranteed by the Constitution, personal liberty is also not an absolute right. It can amount to certain reasonable restrictions which are imposed by state according to the law. But invasion of personal liberty by the state must follow certain basic requirements. Preventive detention is curbing liberty of an individual in an authoritarian way on the name of national security, and these types of laws need to be changed in order to secure fundamental rights of individuals. 

Introduction

Detention in its simplest sense means to curb the liberty of individual i.e. without the knowledge of that individual. This can be understood by a simple example, i.e., during a party, child causes nuisance due to which his father slapped him and locked him in a room to prevent from doing further disturbance. This is termed as preventive detention because, here, father detained his child in a locked room in view of preventing his child from further nuisance, as this is different from punitive detention, which awards to a person after commission of offence while the former will be awarded to prevent any person from committing act.  The basic difference between the two is that in case of preventive detention, it is anticipatory measure where the person did not commit any crime and detained only on mere suspicion for committing crime in future, while punitive detention is detaining a person for committing an offence. What thing here to ponder is contravention of fundamental rights in democratic state? The issue is that this act of detaining individuals on suspicion, likely to commit offense in future on the grounds of national security and sake of maintaining good foreign relations. This is a huge violation of fundamental rights as the state detained individuals for preventive measures, not for punitive measures. 

There are several legal instruments such as the Universal Declaration of Human Rights, 1948; European Convention on Human Rights, 1950 etc.is guiding principles in pre-trial detention, arrest and administrative detention. These conventions provide significant understanding of legal rules governing arrest and detention. 

Preventive detention laws in India

Parliament passed a legislation named Preventive Detention Act, 1950 which talks about the detention of a person on the grounds of defense, foreign affairs or the security of the state. The constitutionality of Preventive Detention Act, 1950 was challenged in the case of A.K. Gopalan V. State of Madras where a leader named A.K. Gopalan was detained in Madras jail from 1947. He was sentenced to various terms of imprisonment under ordinary law but every time sentence was set aside. In 1950, he served with a fresh notice that he was detained under Preventive Detention Act. He challenged the validity of the aforesaid act as this act of state of further detaining him is in violation of Articles 13, 19 and 21 and provisions of the act are not in accordance with Article 22 enshrined under the Constitution of India. The arguments by the defense counsel were that it curbs the liberty and also infringes fundamental rights guaranteed by the Constitution. The case was decided by 4:1 ratio, where majority does not recognize detention as an infringement of personal liberty under Article 21. Minority opinion was delivered by Justice Fazl Ali, which said that fundamental rights are not isolated and separate but protect a common thread of freedom and liberty. “Preventive detention, which is dealt with an Article 22, also amounts to deprivation of personal liberty which is referred to in Article 21, and is a violation of the right of freedom of movement dealt with in Article 19(1)(d)…” 

The Gopalan doctrine was again revisited in R.C. Cooper and Maneka Gandhi. Justice PN Bhagwati in Cooper affirms the dissenting opinion of Justice Subba Rao in Kharak Singh case and said that the term ‘personal liberty’ is a comprehensive one and the right to move freely is an attribute of personal liberty. There is no question of being carved out one fundamental right from another. Article 21 has many attributes and some of them found in Article 19(1)(d). In other words, Article 21 covers a wide range of rights, and some of them had protection under Article 19. 

The interrelationship between fundamental rights paved way for acknowledging privacy as a fundamental right in Justice K.S. Puttaswamy case by overruling MP Sharma and Kharak Singh case. 

Preventive detention laws in USA

Unlike the preventive detention laws as guaranteed by the Indian Constitution, US do not have any laws which prohibit preventive detention by the state i.e. not considered them illegally. The US congress has the power to detain individuals not convicted of crimes for preventive measures under the banner of national security.

Bail Reforms Act, 1984 talks about the procedure set for release or detain  individuals by the judicial officer if govt. by showing evidence that this has committed serious felonies or not. In the case of United States V. Salerno, constitutional validity of Bail Reforms Act, 1984 and 5th Amendment of Due Process was challenged when members of American mafia was arrested. By 6:3 ratio, Supreme Court held that the Act was constitutional because the government’ act of protecting community outweighs personal liberty of individuals only in cases when government able to prove that the arrestee posed significant threat to the community.

In Hamdi V. Rumsfeld, Yaser Hamdi, an American citizen, detained by the US military in Afghanistan and was accused of fighting for the Taliban against the United States government, declared as ‘enemy combatant’. Hamdi’s father filed a writ petition of Habeas Corpus, in an attempt to declare Hamdi’s detention as unconstitutional. The government countered that the Executive branch had the right against the ‘enemy combatants’ to restrict their access to the court. The questions arises whether the act of government by not providing access to an attorney, solely on an executive declaration that he was an enemy combatant, is a violation of Fifth Amendment right to Due Process by hold him indefinitely? And is it logical to agree with the government contention of ‘Separation of power’ doctrine? By 8:1 ratio, SC said that the Fifth Amendment right guarantees every citizen of the US as an enemy combatant had the right to contest the charge before a court. The SC rejected the notion of separation of powers theory because this prevents the judiciary from hearing Hamdi’s case. 

In Rumsfeld V. Padilla, an American citizen was arrested at Airport after returning from Pakistan in 2002. He was initially detained as a material witness against Al Qaeda terrorist network, but later declared as an enemy combatant by the Department of Defense under President’s constitutional powers as the commander in chief and the authorization provided by Congress for use of military force, meaning that he held in prison indefinitely without access to an attorney. 

The pertinent question in this case was whether Congress’s ‘authorization for use of military force’ gives authority to the President to detain a US citizen in the US on the grounds of ‘enemy combatant’. Here, US SC does not decide the case as it was filed improperly. This case was rejected by the SC and did not answer the jurisprudential question relating to powers of US President.   

Preventive detention laws in other countries

Preventive detention is an imprisonment that is justified for non-punitive purposes. Australia authorizes the preventive detention laws. Canada detains anybody which is declared by court a dangerous offender for an indefinite period of time.  In Germany, preventive detention can be imposed as part of criminal sentencing and to prevent serious offenders which poses threat to society from committing grave offences. In Japan, pre-trial detention can be extended to 23 days without charge. Increasing the length of detention is at the discretion of the public prosecutor. Malaysia enacted the Internal Security Act, 1960 (ISA) for legalizing preventive detention laws under legally defined circumstances.  New Zealand gives preventive detention to offenders aged above 18 years or who convicted over sexual or violent crimes. 

Merits and demerits

Preventive detention is the act of detaining someone who has not committed any act but on mere suspicion that he/she is likely to commit crime in future. Preventive detention has also pros and cons of its own. Detaining a person on preventive measures is justified for people with diminished responsibility or judgment. In cases where people are suffering from acute diseases such as mental illness. For example, if any individual under the influence of drugs or alcohol, had dementia or have the capacity to commit suicide. Then in these cases temporary preventive detention would prevent harm to that person. These are termed as merits of Preventive detention.

Demerits are termed as when detaining an adult of sound mind for an indefinite period of detention. It is problematic because it would involve violation of the right of personal liberty. In general, preventive detention is good because it prevents individuals from committing crime, but bad because it infringes fundamental rights. Just like two faces of a coin, preventive detention also has its own merits and demerits. It is on the legislature and executive to use it according to the law. 

Conclusion

John Stuart Mill in his essay, ‘On Liberty’ said “The only part of the conduct of any one, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign”. While answering the question regarding the tussle between liberty and authority, Mill said that the authoritarian rule could be reined by the recognition of fundamental rights such as the right to privacy, free speech and expression, and right to assemble. 

John Locke in his book ‘Second Treatise of Government’ wrote that some inalienable rights are vested in an individual such as rights of life, liberty and property by the state of nature. The notion of alienable rights are also adopted by the constituent makers of United States and embodied such words in ‘American Declaration of Independence’ in the form of life, liberty and the pursuit of happiness. This notion is based on the principle that natural rights are inherent in nature and not made according to man-made law. 

Article 5(1) of European Convention on Human Rights, 1950 guarantees a person’s right to ‘liberty’ and ‘freedom’. Article 3 of the Universal Declaration of Human Rights guarantees “the right to life, liberty, and security of person”. According to the international conventions on Human rights, it is pertinent that their main focus is to preserve the personal liberty and also against the wrongful restraint of individuals. The above referred human rights conventions held that in all cases detention must be carried out in accordance with law, and not arbitrary. Arbitrariness is not equated with only ‘contrary to law’ but must be interpreted broadly in terms of inappropriateness, injustice, etc. In other words, detention must be according to the law, reasonable and also lawful. 

 Preventive measures

• For lawful detention according to Human Rights, it is necessary to be carried out according to the procedures by the rule of law and also free from arbitrariness.
• International human rights activists acknowledges that arrest and non-compliance with the lawful order of a court or in order to secure any fulfillment prescribed by the law does not amount to infringement of fundamental rights.
• Detention on mere suspicion is violation of fundamental rights and in general, personal liberty of individuals. 
• Detention is lawful in case of preventing flight i.e. in order to prevent a person from fleeing after committing crime.
• Deprivation of liberty or preventive detention is justified in cases of person suffering from mental illness in order to prevent him from harm. 
• Human Rights Committee prohibits detention of asylum seekers and for the purpose of extradition and deportation even in the case of illegal entry.
• Preventive detention is justified in order to maintain public order for reasons of public security. It is difficult to determine what exactly comes under the definition of public order. If preventive detention is ordered under the name of public order, it must be controlled by the law and according to the procedure established by the law and also not arbitrary in nature. 
• Detainees had the right to be informed of the reasons for arrest and detention under which they arrest and of the charges framed against that individual.
• Detainee had the right to present before the judicial magistrate under a reasonable time and also had the right to get the attorney or lawyer of his/her own choice.
• In the end, it is necessary to have an independent organ which is not in control of executive and known for giving impartial judgments, which is essential in determining fundamental rights.

Preventive detention Act, 1950 validates detention of individual in cases where exigencies of the state is concerned like in case of national security, maintaining peace and public order, foreign relations etc. Validity of the said act is challenged before the court in Gopalan case where it was evident that liberty of an individual does not count under Article 21. Preventive detention Act was repealed in 1969 and in 1974; Maintenance of Internal Security Act (MISA) came. Then National Security Act, 1980 came whose purpose is to provide preventive detention in certain cases. In 2002, Prevention of Terrorism Act (POTA) came, which provide discretionary powers to the investigating authorities for matters relating to terrorism. Later, in 2004 act was repealed due to its misuse nature and in view for protecting human rights. Justice Chandrachud in Justice Puttaswamy case gave three fold requirements in case of invasion of personal liberty of individuals- (I) legality, postulates the existence of law, (II) need, defined in terms of legitimate state aim (III) proportionality which ensures a nexus between the objects and the need to achieve them. So there should be a direct nexus between the object and invasion of personal liberty. 

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 Team LawSikho.

2017 was the year when the much debated Real Estate (Regulation and Development Act), 2016 came into existence with promises for weeding out irregularities in the real estate sector. A lot has been achieved since the establishment of the RERA authorities. The media has been talking about the pros and cons of the act and its implementation in depth since its inception.

The recent rulings regarding the registration of complaints with both NCDRC and RERA, citing their concurrent nature is another step that is increasing work for real estate lawyers. 

Interestingly, whether real estate industry is going through a boom or bust, real estate lawyers are always in high demand. In fact, as the real estate industry went through a down cycle since the last couple of years, the demand for lawyers in the industry has only increased. As the number of cases involving builders have steadily gone up, so has the demand for lawyers.

If you are interested in a career in real estate law, do check out our Certificate Course in Real Estate Law, which includes weekly live classes, hard copy study material, live doubt clearing and 24/7 access for practical skills training in the field of taxation law.

If you are a lawyer looking to diversify your practice in real estate matters or a young law student looking to make a mark in this area, consider that going through this list will give you a lot of ideas about the biggest names in the practice based in Mumbai, the biggest real estate market in India. You will also understand the gaps in your current level of knowledge and where you need to add new skills in your repertoire to succeed as a real estate lawyer or even get a well paid job in this area of work.

And as always, we are always available at LawSikho to help with your skill development journey.

There is no official ranking of the top 10 Real Estate lawyers based in Mumbai. A search via Google for the best real estate lawyers lists down compilations with contact details by various portals. However, there are lists of rankings published by reputed organizations such as London-based The Legal 500. We have tried to give a picture of the kind of work the real estate lawyers do by compiling profiles of a few prominent lawyers involved in the leading case laws of Maharashtra RERA in the last few years.

The numbering here does not reflect that one lawyer in better than another. 

#1 Tanuj Lodha

Tanuj Lodha is one of the top real estate lawyers in Mumbai and also a Chartered Accountant. He is a partner at the firm Lodha and Lodha and also holds an MBA degree from the Indian School of Business.

He has profound knowledge of real estate laws and specializes in RERA(Real Estate Regulatory Authority), Insolvency and Tax matters. He has obtained several landmark judgments in favor of homebuyers.

In addition to taking up cases in RERA, he also represents the interest of homebuyers in NCLT. The most noteworthy and recent case where Mr. Lodha represented the interest of Homebuyers in Maharashtra RERA, where the adjudicating authority had ordered the developer to refund 7.10 Cr along with interest to the homebuyers which is one of the highest payout order by the housing regulating authority.

#2 Harsh Parikh

Harsh Parikh is one of the finest minds in the legal profession all across India. He is a Partner at one of India’s leading law firm Khaitan and Co. 

Mr. Parikh specializes in property matters which includes title reports, due diligence. He also advises on various redevelopment projects such as Slum Rehabilitation, MHADA Layout redevelopment, and IT Parks.

#3 Sai Krishan Bharathan

Sai Krishan Bharathan is one of the top names when it comes to legal advisory matters in Real Estate. He is a Senior Partner of one of the top law firms in India, AZB Partners. He has advised on various infrastructure projects in India in the airport, power and road sectors and has been involved in the drafting and negotiation of project documents, both as the project counsel and lender’s counsel. 

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Sai Krishan holds a good name in the real estate legal market. He was also awarded as a notable practitioner by IFLR 1000 in real estate practice.

Sai has also been ranked among the top lawyers in the real estate sector in India by Chambers Asia-Pacific. He has been consistently rated as a leading lawyer for ‘Construction, Real Estate & Project Finance’ by Asialaw Leading Lawyers 2014 & 2015.

#4 Sarthak Shah

Sarthak Shah is also a renowned name in real estate litigation. He holds a good position in advisory and documentation of all kinds of property matters. He is a Senior Partner of a boutique firm Siddhartha Shah and Associates. He is one of the greatest legal minds who holds a good position in advising on different kinds of property matters and commercial litigation. He also specializes in structuring Private and Public trusts and family funds.

#5 Ameet Hariani

Ameet Hariani is among the top real estate advisors based in Mumbai. He is also the managing partner of the firm Hariani & Co. and holds immense experience in Real estate and infrastructure laws. He has also been recognized as one of the top advisors in real estate matters.

Mr. Hariani is a master in advising issues relating to RERA and other real estate legislation. He has acted for a range of clients, including real estate owners, developers, purchasers, housing finance companies, tenants, on a range of transactions.

#6 Shailesh Vaidya

Mr. Shailesh Vaidya is a practicing Advocate and Solicitor. He is a partner in Kanga & Company, a reputed firm of Advocates & Solicitors, founded 126 years ago in Mumbai, India. He specializes in Real Estate matters. He has been in legal practice for more than four decades now and he has been involved in several landmark property deals. His name and firm features in the “Guide to the World’s Leading Real Estate Lawyers” published by Legal Media Group, United Kingdom and also in “The Legal 500” and Chambers Asia Pacific Guide to Asia’s Commercial Law Firms as leading law firm for Real Estate in Mumbai.

#7 Chirag Kamdar

Chirag Kamdar is one of the big names in RERA cases who is also an NLSIU Graduate. Chirag Kamdar holds several RERA successful orders in his name. He deals with all sects of real estate litigation. Chirag Kamdar is a well-known figure among the Bar as well as the Bench of Bombay High Court. Chirag Kamdar has appeared for cases involving big names.

#8 Chetan Raithatha

Chetan Raithatha is one of the great lawyers who possess extensive knowledge of real estate matters. Raithatha is the first choice of most of the developers for the legal battle in court or tribunal. With a compelling legal acumen in understanding property legal issues, Raithatha holds the position of one of the top real estate lawyers.

#9 Vikram Trivedi

Vikram Trivedi is the Managing Partner of the firm Manilal Kher Ambalal and Co. and he is in the industry for almost four decades now. His clientele includes high net individuals, including many business leaders and celebrities. 

Vikram’s sharp skills have led him to successfully representing high profile in civil and criminal litigation including in the areas of real estate.

#10 Nimay Dave

Nimay Dave who is practicing more than a decade now holds a very good name when it comes to RERA Litigation. Nimay Dave specializes in Real estate litigation.

He regularly appears in Tribunals and High court for Real Estate matters. A well-established lawyer in the Bombay High Court, Dave holds the reputation of being a successful and prominent career in litigation.

We hope that the list shall help you in getting a better understanding of the real estate law scenario, and the nature of their work, particularly in Mumbai.

If you are still confused about how to go ahead with a career in real estate laws, download our free course material on it here or give us a call for a free career counselling session.

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This article is written by Nisha Modak, pursuing a Diploma in Intellectual Property, Media and Entertainment Laws from LawSikho.com. Here she discusses “Impact of the Commercial Courts Act and the Amendment to it upon claims of Trademark Infringement and Passing Off”.

Introduction

Our nation today is becoming a powerhouse of trade and commerce. There has been an exponential growth in our economy over the last decade, as more and more businesses and other avenues for economic development are coming up. Since a larger number of commercial activities were being undertaken, the number of legal disputes relating to such issues also began to increase. 

The legal system soon began to be overburdened with the plethora of commercial disputes that were brought to its doorstep. Another problem was that the legislature often fell short of having adequate rules and regulations in place to address commercial disputes, and found itself unequipped to tackle the rapid wave of disputes that kept flowing in. Thus, it sought to enact specific legislation which would streamline the adjudication of commercial and business related disputes and claims, and ensure speedy settlement of these disputes.

Commercial Courts Act, 2015

The Commercial Courts Act, 2015 (the ‘Act’) is regarded as landmark legislation towards making Indian judiciary more competent to deal with disputes of a commercial nature or those arising from contractual or monetary aspects of  commercial activity.

The provisions of the Act led to the establishment of a Commercial Court at the District level and a Commercial Division in the High Court, which has original civil jurisdiction to try commercial disputes as defined under the said Act. The Act also provides for the establishment of Commercial Appellate Divisions, at the level of the High Courts, which are empowered to adjudicate upon appeals from orders passed by the Commercial Court or Commercial Division. In an attempt to widen its jurisdiction, the Act has given a liberal interpretation to the term ‘commercial disputes’. It has an inclusive definition, under Section 2 of the said Act. Disputes relating to intellectual property rights, insurance, mercantile documents as well as those relating to transactions between bankers, financiers etc. are brought under the scope of the term ‘commercial dispute’. 

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One of the most significant impacts of the passing of this Act is that is has allowed for certain deviations to be made in the way the Code of Civil Procedure (the ‘Code’) is applied to suits relating to commercial disputes of a specified value. As per the provisions of Section 16 of the Act, it brings certain changes to the said Code to the extent it is applicable to commercial disputes within the scope of the new law. The reason behind such amendments is to help speed up litigation before the new dedicated Commercial Courts. Some of the variations that have been brought about in the applicability of the Code to commercial disputes are:

1. As per Order XI of the Act, parties are required to file a list of all documents in their power, possession, control and custody pertaining to the suit, and not just those documents relied upon in the plaint or the written statement. Such documents have to be submitted, irrespective of whether they are beneficial or detrimental to the case of the party submitting them.
2. As per Order XIII A of the Act, any party can apply for summary judgment, in respect to a claim (or part thereof) which can be decided by the Court without recording oral evidence. Summary judgment may be given when the Court is satisfied that the Plaintiff/ Defendant (as the case may be) has no prospect of succeeding in the claim, or when there is an absence of any reason to withhold deciding upon the claim.
3. Order XV A of the Act introduces the concept of Case Management Hearing, according to which the Court shall conduct the first hearing within four weeks from the date of filing of affidavits of admission or denial of documents by the parties. 
4. Order XV A also provides for the recording of evidence, including the conducting of cross examination, on a day to day basis. 
5. The Schedule of the Act provides for the imposition of costs for frivolous suits.
6. The Act, under Order XX, makes it mandatory for the Courts to pronounce judgments within a period of 3 months upon the completion of arguments. 

Trademark Infringement and Passing Off under the Commercial Courts Act

• The Commercial Courts Act, 2015 provides for the establishment of specialized courts which exclusively deal with commercial disputes. The exhaustive definition of the term ‘commercial disputes’, as interpreted by the Act, includes matters related to Intellectual Property Rights. Thus, after the passing of the Act, any dispute relating to matters of ownership, registration, licensing, assignment, infringement etc. of intellectual property is tried before the Commercial Courts. This is to ensure speedy adjudication without resolving to the traditional and cumbersome court procedure and also to set up a judicial body which would have more expertise in dealing with disputes of a commercial nature. 

• In a landmark judgment, in the case of Guiness World Records v Sababbi Mangal, the Delhi High Court further expanded the scope of the Act to decide cases related to Intellectual Property. It deviated from the provisions of jurisdiction given under Sections 6 and 7 of the Act and ruled that matters relating to Intellectual Property Rights, filed under statutes such as the Patents Act, Copyright Act, Trademark Act etc. shall be adjudicated by Commercial Courts, irrespective of whether the suit value is above the minimum limit of 1 Crore rupees or not. Thus it allowed a greater number of aggrieved individuals to avail the benefits of a trial before the Commercial Courts. 

• Prior to the passing of the Act, cases related to Trademark Infringement and Passing Off were tried as per the traditional court system, and were decided strictly upon the provisions of the Code. Since the Act has prescribed certain changes in the way the Code is to be applied, it has revolutionized the manner in which trademark cases are conducted. The main advantage that the Act lends is speedy disposal of the case, which is crucial in cases of trademark infringement or passing off since the continued use of the trademark in dispute would be detrimental to the aggrieved party who seeks the remedy of the Court.

• In SanDisk LLC v. Memory World, the Delhi High Court passed a summary judgment under Order XIII of the Commercial Courts Act and granted a permanent injunction upon the use of the Plaintiff’s registered trademark. The Court applied the provision of the Act, which empowers a court to pass a summary judgment, without recording evidence, if it appears that the Defendant has no real prospect of defending the claim and there is no other reason to refrain from deciding upon the claim. In this particular case, the Defendant had not filed a written statement despite, entering an appearance, thus showing that he had no intention to defend the claim. The Court recognized the intention of the Defendant to profit from the goodwill of the Plaintiff and make sales by misrepresenting his products as manufactured by the reputed company of the Plaintiff. The Court held that it was a clear case of trademark infringement, which could be summarily decided. 

• In Ahuja Radios v. A Karim, the Delhi High Court once again exercised the power given under the Commercial Courts Act to grant summary judgment in a commercial dispute relating to passing off of a trademark. This case satisfied the requirement established under the Act, that the Defendant had no prospect of challenging the claims of the Plaintiff, nor did he have any chance of succeeding in his defense. Hence the Court passed a summary decree granting a permanent injunction against the Defendant. 

Amendment to the Act

Since the time it was implemented, the Commercial Courts Act has satisfied the main purpose for which it was enacted, which was to regulate, streamline and enhance the efficiency of the adjudication process for commercial disputes. However, there were still certain obstacles faced by the Courts, which could not be effectively addressed by the existing provisions in the Act. Thus the need was felt to bring about certain changes in the Act, which would eliminate the residual glitches in the adjudication process and truly achieve the goal envisaged by the legislation. 

In May 2018, the Government promulgated an Ordinance to amend the Commercial Courts Act, 2015. The prominent changes made by the Ordinance are:

1. As per the new amendment, the Commercial Courts are now empowered to try all commercial disputes which are above the value of 3 lakh rupees. Thus, it has widened the pecuniary jurisdiction conferred by the Act, by lowering the previously decided value of 1 crore rupees. A greater number of commercial and business disputes can now be effectively adjudicated in the appropriate Court. 
2. The Ordinance has sought to curb the number of cases that are brought to Courts and promote settlement of disputes by methods of Alternative Dispute Resolution. Thus it is mandatory for the parties to undergo mediation for a period of 3 months before they are eligible to file a suit before a Commercial Court. This provision does not apply to those disputes in which urgent interim relief is required to be given.
3. The amendment has lent greater autonomy to the State Governments, with respect to the appointment of judges to the Commercial Courts. The Government can unilaterally make the appointment, even without the concurrence of the Chief Justice of the High Courts. 

Effects of the Amendment

• The most significant impact of the Amendment has been the lowering of the minimum value for the dispute. The previous provision relating to pecuniary jurisdiction did not allow a lot of disputes to be presented before the Commercial Courts since they were lower in value than the decided limit. This defeated the very purpose for which the Act was implemented since these disputes were left to seek remedy with the traditional court system. 

• Secondly, the compulsory pre institution mediation has resulted in a lot of parties being able to mutually agree and decide upon an amicable settlement of their dispute. An example of this is the 2019 case of trademark infringement of GrabOn v. GrabOnRent. These startup companies were able to avoid the cumbersome process of litigation and were able to resolve their dispute by mediation. 

Conclusion

• Thus, the Commercial Courts Act, 2015, as well as the Amendment to it has changed the face of the way Intellectual Property disputes are handled. Due to the efficient Court process, the judges of the Commercial Courts who have specialized knowledge about business and commercial matters, and the speedy remedies are given, people have now regained their faith in our judiciary. 

Endnotes

1. http://legislative.gov.in/sites/default/files/A2016-4_1.pdf Definition as per the Act
2. CS (OS) No. 1180/2011
3. 2018 SCC OnLine Del 11243
4. CS(OS)  447/2013

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 S.Aditya an alumnus of KLE Society’s Law College, Bengaluru. This article envisages an understanding of company with respect to body corporate and illegal association. This article has been written to encompass various facets of the meaning and nature of a Company.

What is the Company?

Company is an artificial person created by Statute of legal sanctity, having “separate identity” and “perpetual succession”. Legal sanctity of a company is provided under the Company’s Act 2013 and previous legislations animate a company with a personality almost similar to that of a physical person. As per the provision 20 of the definition clause of the Act, a company simply means a company incorporated under the Act; or under any previous relevant law. These Companies incorporated under this enactment must operate under the boundaries defined by this Act. 

In the famous case of S.S. Dhanoa, the Supreme Court referred to the definition of Corporation as given by C. J. Marshall of U.S.A. in the celebrated case of Dartmouth College. A corporation has been addressed as a legal creature existing only in law and its characteristic properties are the ones conferred impliedly or expressly upon it by law. The aforementioned definition very much constitutes a very easy way to understand the explanation of a corporation and the same can be extended to understand the legal identity of a Company.

Key or Characteristic features of Companies

• Legal Authentication to Company: A Company can only be established according to the provisions of law of the land. In India, the enterprises are registered and established under the Companies Law, excluding the Insurance and Banking enterprises for which another definite law (Banking Act and Insurance Act) is furnished.
• Independent Legal Personality: A company has a defined independent legal entity which is different from constituting members. As an independent person in law, a company may possess and convey any kind of properties; it may be a party to a contract and even open a bank a/c in its own name.
• Capped Liability: The liability risks of the member shareholders of a company, unlike a conventional partnership firm, is restricted to their portion of the shares. Incorporating a Company is a preferable choice for fixed risks. 
• Never Ending Succession: The company is an inanimate person established by legal statute and continues to exist regardless of the member numbers or even existence. A company can only be dissolved by law. Even the circumstances of insanity/ death of any of the member shareholders of the company make no dent to the Company’s existence.
• Common Insignia: The company is an unreal person, and thus cannot sign its name like me and you. Hence, every company is mandated to have its own seal which works as an official signature of that company. Any document which does not carry the seal is not authenticated by the Company.
• Ease of Transfer of Shares: The shares of a Public Limited Company (PLC) are transferable. The authorisation of any member of the firm is not required for the conveyance of shares. The comfort of the transfer of shares garners the Company better trust amongst its shareholders.
• Court Ready: A company is a legal person, it can get into contracts. It can accuse and be accused in its name if there is a breach of contract by the other party or itself. The separate legal identity of the Company is meant to ease the litigation process involved.

Lifting Corporate Veil

As mentioned before, the company enjoys a separate legal entity and has a personality other than that of its individual members. But this characteristic feature of a company is sometimes used maliciously by the majority stakeholding members of that company. The director member, may at times, perpetrate illegal activities in the name of the company, aiming to shift the liability on the separate legal entity of Company;

Hence gaining personal benefits at the cost of various stakeholders. But the situation where a separate legal entity given to the company is used by the perpetrator as a veil between himself and course of justice of the Court or the Government pierces through such artificial veil. 

Such lifting of the Corporate veil can be carried out through the following:

1. Judicial Interpretation 
2. Statutory Interpretation

For instance: Germany was declared an alien enemy by Britain after World War-II and hence, if German citizens were to open a company in Britain and send all the profits back to Germany, the British government or court may choose to lift the corporate veil to make the promoter and other directors of such company liable.

Case Law: The celebrated case of Salomon v. Salomon & Co. Ltd. 

• Facts: Mr Salomon had incorporated his old family business of shoe manufacture into a limited company. He was holding 99.97% of the shares and the other 6 members of his family held one share each, making their share 0.029% of the total. The company went into loss after some time. The debentures in the company were held mainly by two individuals and Mr Salomon was one of the Debenture holders. When the company was liquidated, both the Debenture holders recovered the money, i.e. Mr Solomon also recovered the money. Therefore the minor, unsecured creditors got nothing from the liquidation.
• Issue: Should the amount that was paid to Mr Salomon, the major debenture holder, be distributed amongst the minor unsecured creditors?
• Held: The High Court and the Court of Appeal believed that the Highest shareholder must suffer and the unsecured creditors must be paid. But it was held by the House of Lords that, the Company is a different legal entity in itself, also observing that a majority shareholder does not own the Company. The Company will not lose its identity to the majority shareholder under any circumstances. 
• Ratio: The Company is a separate legal entity in itself. The creditors of a company cannot sue the company’s shareholders Majority or minority to pay the company’s debts.

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Advantages of Incorporation

Incorporation offers various benefits to a company as compared to other kinds of business organizations. They may be listed as:

1. Limited burden – Limitation of liability during liquidation is another major advantage of incorporation. The companies, being a separate entity, leading its own business life free from the identity of its members, the members are not liable for its debts. The liability of members is limited by shares owned by them paying the nominal value of the shares held.
2. Independent corporate existence/Legal identity – the commendable feature of a company is its independent corporate existence. By registration under the Companies Act, a company becomes vested with corporate personality by law, which is independent of, and distinct from its members. A company after incorporation under the act is a legal person.
3. Perpetual succession – An incorporated company never dies. Members may join or leave, but the company is perpetual. Even the bomb killing the members of a company couldn’t kill the Company (K/9 Meat Supplies (Guildford) Ltd., Re.

In the words of Alfred Lord Tennyson company’s life term may be stated as “….For men may come and men may go, But the company goes on forever.”.

1. Common Signia or seal – A company is only a juristic person and can only act through its agents and all such contracts entered into by such agents must be under the seal of the company. The common seal is like a signature of such company. 
2. Case filing ability – A Company can be sued and it can sue in its own name as it has a personality in the eyes of law. The names of managerial personnel need not be impleaded.
3. Proficiency in Management – A Company is capable of attracting professional managers. It is due to the fact that being attached to the management of the company gives them the status of the business or executive class.
4. Transferability of shares – Earlier when JS(joint-stock) companies were established, the object was that the shares should be capable of being easily transferred. Provision of statutes gives expression to this principle by providing that the shares or other interest of any member are transferable in the manner provided by the articles of the company. 
5. Separate vesting of property – The property of an incorporated company can be held and enjoyed in its own name. None of the members can claim ownership of any asset of the company’s assets until liquidation is initiated.

Disadvantages of Incorporation

1) After the lifting of the corporate veil for reasons of law, a Company is no more viewed as a different personality, but it becomes important to take a gander at the people behind the corporate veil trying to use its garb to perpetrate illegal actions, few examples of removal of such veils are: 

• Determination of the nationality of a company: The decision in Daimler Co. Ltd case, declared that even though the company was incorporated and registered in England, it would be treated as a non-national, since the real control of the company was with the nation which was declared as enemy, the need to remove the veil of the corporate entity was necessary to understand the nationality of the Company.
• For the curbing of tax evasion: When the different identity of an organization is purposely made for the avoidance of taxes which were imposed by the respective administrator.
• Illegal object: In a case, in an organisation, one of the major shareholders had been stopped from investing under a covenant; so to get around such restraint, he started a company.
• Under statutory law: The Act sometimes mandatorily looks into individual default behind the veil in certain occasions like, where agreement is made by faking the names of organizations, or when business is created to cheat people etc. 

2) Formality and cost of Incorporation are an over the top expense. It requires various legal and customary formalities.

3) The Supreme Court decided that a company is not a citizen in State Trading Corporation v. Commissioner Tax case. Supreme Court also decided that the citizen’s rights and recognition of citizenship cannot be granted to a company via its members. 

Company viz-a-viz Body Corporate

The Act of 2013 defines a Company under Section 2 (20) as a company incorporated under the aforesaid Act or under any previous company law. The term ‘body corporate’ is defined in Section 2(11) of the above Act. Body corporate means a corporate entity which has a legal presence. Which includes one person’s company, a private company, a public company, etc. Body corporate/ corporation also has in its ambit, a company incorporated outside India. However, body corporate does not include—

1. co-operative societies and
2. other body corporate announced by the Central Government;

The Companies registered under the Companies Act, 2013, can be called as a Company or as a Body Corporate for e.g.- Tata Consultancy Services Limited, Reliance Communications Ltd. etc. since they are registered in India. Whereas, the entities like Samsung Electronics, Apple Inc, etc incorporated outside India can only be termed as Body Corporate but not companies.

Is Company a Citizen?

Though a company is an artificial legal person, it is not a citizen under the citizenship legislation or constitution. A company cannot be treated as a citizen as the citizenship recognition is only available to natural biological persons and not to juristic persons. The Apex Court in State Trade Corporation India case essentially stated that a company is not treated as a citizen and hence a company cannot claim the protection of fundamental rights expressly guaranteed to citizens, but it certainly can claim the protection of such fundamental rights which are granted even to aliens.

In another case of TATA v. State of Bihar, it was further decided by the Supreme Court where it was reiterated that the identity of a company is different from that of its members and its share­holders, a Company cannot claim the protection of fundamental rights guaranteed to a citizen through its members. 

Illegal association

According to the provision of Law – Any company or association of persons or partnership where the number of members of the company is more than 100 and if it carries on business for the motive of earning a profit, is not registered under specified act then it will fall into the definition of an illegal association.

Illegal Association does not have any legal existence which means the following things:

• unlike a registered company, it cannot sue and be sued in a court of law.
• winding up or dissolution process cannot take place as there is nothing to wind up or dissolve.

The liability of the members is unlimited to the extent of the whole of the liabilities of illegal association. Every member of an illegal association is under the law, liable to pay a fine of Rs.1 lakh.

Under provisions of law, if any person is forming a part of such illegal association which uses the prefix or suffix in its name to defraud people, without any registration as a company in the register of companies then, on doing of such wrongful actions, a minimum fine of Rs. 500 and maximum up to Rs. 2000 will be levied for the period till such wrongful act of defrauding continues, plus unlimited burden shall be cast on all the people who comprise of such illegal association.

It is important under the provision of law to identify an unregistered company having more than 50 members and running for-profit as an unlawful association. If there is no profit motive then the association is not illegal, implying that charitable, literally, religious, and scientific association, clubs association are not illegal.

Also, the aforementioned provision of illegal association doesn’t apply to chit funds, joint Hindu families, and stock exchanges. Income tax is levied in the money of illegal association. Illegal nature of an illegal association remains wrong in law till it gets registered.

References

[1] S.S.Dhanoa v Municipal Corporation Delhi (1981) 3 SCC 431 

[2] Solomon v. Solomon & Co. Ltd.(1897) AC 22

[3] Alfred Lord Tennyson, “BROOK”

[4] Daimler Co. Ltd v Continental Tyre, UK :HL [1916] 2 AC 307

[5] Gilford Motor Co. Ltd. v Horne[1933] Ch 935 

[6]  The Companies Act, 2013

[7] State Trading Corporation v Commissioner Tax 1963 AIR 1811

[8] TATA Engineering and Locomotive v State of Bihar AIR 1965 SC 40.

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 Meaning, Features & Incorporation of a Company under Companies Act 2013 appeared first on iPleaders.

This article is written by Millia Dasgupta, a second-year student studying at Jindal Global Law School. This article covers the cultural and educational rights of minorities and discusses various landmark cases relating to the topic. 

Introduction 

We have all heard that living room uncle or gossiping aunt proclaiming reservations are ruining our nation and the majority are the ones who suffer when it comes to admission. But one must stop and think, does the government truly have an inclination towards ruling for minority communities and their educational and cultural rights? To answer that question, we must first explore what are the cultural and educational rights minority communities have and how the government and courts deal with judicial questions concerning them. This article will explore such aspects in detail.

Who is a minority?

Article 30  of the Constitution talks about two types of minority communities – Linguistic and Religious. But while it defines the categories of minority communities, there is no official definition of the word by the government.

One can derive certain pointers from the various articles in our Constitution and reports from the government. Article 29(1) that safeguards the rights of minority communities states that anyone with  “a distinct language, script or culture of its own” has the right to conserve it. 

From the language of the text, we may understand that communities with distinct language, script or culture fall under minority communities. But in later cases such as Bal Patil v. Union of India and the Islamic Academy of Education v. State of Karnataka, we see that courts rely on other factors such as economic welfare to decide whether a community is a minority or not.

In terms of religious minority communities, Section 2(c) of the Minorities Act recognizes 5 religions as minority communities namely Muslims, Sikhs, Christians, Buddhists, and Zoroastrians (NCMA).

S.P. Mittal v. Union of India, AIR 1983 SC 1

Facts

Sri Aurobindo was not only an excellent academist and administrator, but he was also engaged in political work. Later on, he gave it all up for a life of meditation and moved to Pondicherry, Tamil Nadu. It was there where he met Madam  M. Alfassa, who would, later on, be known as Mother, who became his disciple. Later on, his disciples and the Mother established The Sri Aurobindo Society to propagate and practice the ideals and beliefs of Sri Aurobindo. 

Through this society, the founding president, the Mother, set up a township called Auroville which was meant for people to come and engage in various pursuits. Later on, The United Nations Education, Scientific, and Cultural Organization (UNESCO) took it upon themselves to fund provisions to help with the development of Auroville. 

When the mother passed away, many problems such as mismanagement of the project and misuse of the funds cropped up which made it impossible for the townships functioning and growth. Thus, keeping in mind the international character of Auroville due to the agreement with UNESCO, the government of Tamil Nadu took management in their own hands and filed a presidential ordinance which later on became The Auroville (Emergency Provisions) Act, 1980.

Seeing that the government took control of a ‘religious’ enterprise, the Constitutional validity of the Act was challenged on 4 grounds. One of the grounds was that it was violative of Article 29 and 30. 

Issue Raised 

Does the Act violate Article 29 and 30?

Decision 

It was held by the bench that the forsaid Act does not violate Article 29 and 30. The court held that it, in no way curtailed their right or prevented any citizen from conserving its own language, script or culture and thus was not violative of Article 29. 

Also in this case, in order to seek protection under Article 30, one must prove that they are a linguistic or religious minority and the institution in question was established by them. Considering that Auroville was not religious and was founded on the ideology of Sri Aurobindo, they could not seek protection under these articles.

Rights of minorities

Certain rights are laid down to safeguard the right of minority communities. Article 29 ensures that anyone residing in India has the right to preserve a distinct language, script or culture and no State educational institute or any institute receiving aid from the state shall discriminate against anyone based on race, caste, creed, etc. Article 30 ensures the right of minority communities in educational institutions and prohibits discrimination against them. 

With regard to the reservation and special provisions for minority communities, many have brought up the argument that such provisions are ‘cushioning’. But in the case of The Ahmedabad St. Xaviers College vs State Of Gujarat & Anr, Khanna J. stated that such provisions are necessary so that “none might have the feeling that any section of the population consisted of first-class citizens and the other of second class citizens”. He also stated that a majority of the Fundamental Rights of the Constitution protect majority rights as it protects minority rights.

In the TMA Pai case, the judge considered the opinion of the Permanent Court of International Justice in the case of Minority Schools in Albania, advisory opinion was that there is a need for provisions that help minority groups preserve the uniqueness of their distinct culture and script and minority religions to uphold the uniqueness of their culture. Khana J. stated that “the object of protection is to enable minority communities to preserve the characteristics which distinguish themselves from the minority”.

In the Kerala Education Bill case, with regards to institutions handled by minority communities, Hidayatullah C.J stated that while Article 30 (1) might be general protection over distinct languages and scripts, it is also right to establish educational questions of choice. Thus this Act is not diminished if the institution’s primary function is not protecting minority culture, its also for institutions that are established and managed by minority communities and they accept other students as well.

The distinction between Article 29(2) and Article 15(1)

Article 29 (2) and Article 15 (1)  are very similar due to the fact they both prevent discrimination on the basis of caste, race sex, etc and are sometimes seen as mutually exclusive. However, there is a big difference. While Article 15 provides a broader ambit against discrimination on the basis of caste, race sex, etc, Article 29 provides specific restitution for those who have faced discrimination from state-run educational institutions at the time of entry or admission. 

Why did the fathers of the Constitution take an extra step to prevent discrimination by educational institutions? Education is important for a certain community to flourish and grow. When properly and efficiently educated, one becomes equipt to enter public services and search for jobs. Without the tools of education, the community shall be culturally but economically dominated. Thus, it is imperative that any minority community gets access to education and receives relief against discrimination. 

Right of Minorities to establish and manage Educational Institutions

Under Article 30, the Constitution provides provisions for minority communities to establish and manage educational institutions and protect themselves from discrimination of granting aid by the government. Article 29 (1) gives any citizen the right to conserve a distinct language, script or culture of its own. While Article 29(2) also protects them, it is more for every citizen and is not specially tailored for minority groups.

One of the biggest debates in judicial history has been whether minority communities have the right to have autonomy while managing these institutions. Such questions gave birth to the famous T.M.A. Pai Foundation v. State of Karnataka case which had a massive 11 Judge Bench. In present times, the common consensus is that governments are allowed to regulate such institutes so long as such regulation is in pursuit of ensuring academic excellence and it does not harm the character of the minority institute.  

The Constitutional (44th Amendment) Act, 1978

The Constitutional (44th Amendment) Act removed the right to property as a Fundamental Right under Article 19. However, it ensured that “the removal of property from the list of Fundamental rights would not affect the right of minority communities to establish and administer educational institutions of their choice”. 

Relationship between Articles 29(1) and 30(1)

Article 29(1) states protect the rights of members of communities who have distinct language, culture, and script. 

Article 30(1) protects minority rights with regard to establishing and managing educational institutions.

Thus both Acts facilitate minority rights to establish and manage their own educational institutions. The only difference is that  29(1) makes an attempt to define who minority communities are. Due to the articles being almost identical, many might believe that when seeking protection, you can only seek protection under one.  But in St. Xaviers College v. the State of Gujarat, it was stated that Article 29(1) and 30(1) were not mutually exclusive.

Power of Government to regulate minority-run Educational Institutions

St. Xaviers College v. the State of Gujarat, AIR 1974 SC 1389

Facts

St. Xaviers College,  a religious denomination affiliated under the Gujarat University Act, 1949, provided education to not only Christians but students of other religions and creeds. They had challenged sections 35-A, 40, 41, 51-A and 52-A of the Gujarat University Act, 1972 which dealt with the appointment of teachers and students of minority communities. They stated that the Act encroached on the autonomy of the universities. 

Contention of the Parties

• Article 29 (1) of the Constitution safeguards a citizen’s right to preserve his or her own language, script or culture, and Article 30 (1) states that minority communities have the right to establish and manage their own institutions. 
• Article 30(2)  also states that the government should not discriminate against any institution under minority management. 
• Under Article 32, they had a right to not only establish and administer institutes of their choice but they also had the right to affiliation( to operate independently, but also has a formal collaborative agreement with the state).

The opposition stated that Article 29 and 30 were mutually exclusive and protection under these Acts can not be brought up at the same time. They also stated that affiliation was not a Fundamental Right and that a minority institution must abide by the provision if they wished to be affiliated. Another argument was unless the law was an absolute violation of minority rights under Article 30(1), then there was no reason for the Act to be struck down.  They pleaded that the court wait until statutes and ordinances are issued in pursuit of the disputed sections. 

Issue Raised

• Are Article 29 and 30 mutually exclusive?

• Is affiliation a Fundamental Right?

• Does section 35-A, 40, 41, 51-A, and 52-A of the Act tamper with the institutes Fundamental Right?

Decision 

It was held that

• Article 29 and 30 were not mutually exclusive. 
• While affiliation is not a Fundamental Right, it is necessary for the meaningful management and establishment of such institutes
• Section 35-A, 40, 41, 51-A and 52-A of the Act would not apply to minority institutions as they tamper with their Fundamental Right to establish and manage educational institutions of their choice.

Ray C.J. and Palekar, J. stated that it would be wrong to limit their rights to only institutes that administer language, script, and culture. This would make the Act redundant. It is also wrong to believe that Article 29 and 30 are mutually exclusive because while Article 29 is for all citizens, Article 30 was placed to safeguard the rights of minority communities. Thus Article 30 must be treated as an extension of Article 29.

Jaganmohan Reddy, J.  stated that while affiliation is not a Fundamental Right, the state cannot use it as a tool to force an institution to abide by certain rules. The institution has the right to “establish their institutions, lay down their own syllabi, provide instructions in the subjects of their choice, conduct examinations and award degrees or diplomas, seek recognition to their degrees and diplomas and ask for aid where aid is given to other educational institutions”. The state can only discriminate on the basis of the excellence of the institution. 

With regard to the various disputed sections of the Act, the general consensus of the bench was that minority managed institutions had the right to function without government intrusion of such nature. 

Re Kerala Education Bill, AIR 1958 SC 956

Facts

The President under Article 143 of the Constitution approached the Supreme Court regarding the Kerala Education Act 1958. Out of many of his inquiries, the President questioned Sub-Clause (5) of Clause 3 which stated ‘any new school or any higher class opened in any private school that did not live up to the standards of government regulation would not be recognized by the Government’.

The President’s question was whether giving such power to the government would be violative of Art 30 as minority communities had the right to manage and establish their own institutions. 

Issues Raised

While minority communities had the right to administer, do they have the right to maladminister?

Decision 

It was held that minority groups did not have the right to maladminister. Das, C.J. stated, “Reasonable regulations may certainly be imposed by the state as a condition for aid or even for recognition”.

It also stated that while opening up educational institutes was essential for minority communities to exercise their right under Article 30, all educational institutes are subjected to Article 29(2) which states that all citizens in state or state-aided institutions must not be discriminated during the time of admission on the basis of race, sex, creed, etc. 

Importance

The court’s opinion on government regulation on educational institutes and Article 29(2) have been used as persuasive precedents for landmark cases. An example is T.M.A. Pai Foundation v. State of Karnataka.

Sidhrajbhai v. State of Gujarat, AIR 1963 SC 540

Facts

The petitioners (Sidhrajbhai) are members of a society that has established many educational institutions, including a training school for teachers.  The Bombay government issued an order that 80% of teaching seat in non- government training schools would be reserved for candidates chosen by the government. The government also ordered the principal of that training school to not admit private students more than 20% of the class’s strength without the permission of the Educational inspector.

The principal expressed his inability to comply with orders and the government threatened them with disciplinary action. The society moved to the Supreme Court stating that this order violated several of their Fundamental Rights, including Article 30.

Issue Raised

Did the government orders violate Article 30?

Decision 

The orders violated Article 30. Article 30 is an absolute right and unlike Article 19, it cannot be subjected to ‘reasonable restrictions’. It was stated that such a right is for the protection of minority communities and their right to manage their own educational institutions. If it is diminished in the name if reasonable restrictions then it shall merely be an illusion and shall have no impact. The Kerala Education Bill case was quoted as in that case it was held that the State can impose legislation on educational institutions only if such restrictions are not detrimental to the “character of the minority institution”. Thus, unless these legislative restrictions aid the institution towards educational excellence while helping them retain its minority character, the court shall not take them into consideration.

Right of recognition or affiliation, not a Fundamental Right 

When the right of minority communities to establish and manage educational institutions is a Fundamental Right, it makes you wonder if affiliation or recognition is a Fundamental Right as well? At the end of the day, in order for an institution to achieve sufficient excellence, it is imperative that they have some sort of recognition or affiliation from the state.

This exact query was brought up in Sidhraj Bhai v. State of Gujarat. While the court recognized the importance of affiliation, they denied that it was a Fundamental Right. In later on cases like T.M.A. Pai Foundation v. State of Karnataka and P.A. Inamdar v. State of Maharashtra, it was held that the government is allowed to set up rules and regulations that institutes must follow in order to get affiliation. These regulations must be in pursuit of educational excellence.

Admissions of students and qualification of teachers in unaided minority institutions

Through the cases of T.M.A. Pai Foundation v. the State of Karnataka and P.A. Inamdar v. the State of Maharashtra, the general consensus of courts is that while such institutes have autonomy over management, such institutes must make sure that during admission they adhere to Article 29(2)- majority community students and employers should be admitted as well. 

Admissions in aided minority institutions

The government has the right to regulate the management of such institutions including fee structure, admission of students and employment of teachers. They shall have fixed quotas depending on the local need.  

Right of non-minorities to run educational institutions

The two rights are Art 19(1)(g) which is right to the profession (subject to restrictions in Art 19(6)) and Article 26 which is the right of all religious denominations to maintain and establish educational institutions.  

T.M.A. Pai Foundation v. the State of Karnataka, AIR 2003 SC 355

Facts

The St Stephen’s College v University of Delhi case that was previously reviewed by a 5 Judge Bench, was transferred to a 6 Judge Bench and then a massive 11 Judge Bench to decide the status of minority rights.

Issue Raised

Kirpal, CJI framed 5 main questions, those that are relevant to the article have been stated below-

1. “Is there a Fundamental Right to set up educational institutions and if so, under which provision?”
2. To what extent can private universities be regulated?
3. “In order to determine the existence of a religious minority in relation to Article  30, what is to be the unit?”
4. “To what extent can the rights of aided private minority institutions be regulated?”

Decision

1. For non-minority groups,  the two rights are Article 19(1)(g) [ the right to a profession which is subjected to restrictions of Article 19(6)] and Article 26 which gives the right to  “all citizens and religious denominations to establish and maintain educational institutions”. For minority communities, Article 29(1) and Article 30(1) is provided by the Constitution. 

The right of minority communities with regards to setting up educational institutes also includes the right to decide the method by which the students and teachers are selected. It should be fair, transparent and most importantly, based on merit. The same goes for un-aided schools. 

But it is important for such authorities to abide by Article 29(2) during admission. They must not discriminate against students on the basis of sex, race, creed, etc at the time of admission, especially students from the majority community. 

2. Private institutions are divided into three categories to answer this question-

• Private Unaided Non-Minority Educational Institutions- While the government can lay down rules and regulations (based on academic excellence) for affiliation, but the management of the institute should be autonomous. 
• Private Unaided Professional Colleges- They have autonomy with regard to aspects such as fee structure and admission. But such colleges should not forgo the principle of merit and should reserve a few seats. These seats shall be reserved at the discretion of the management to those who have passed the entrance exam. The rest of the seats should go to people based on counseling by the state. For affiliation, the rules and regulations to achieve it should not be cohesive in nature. 
• Private Aided Professional Institutions (non-minority)- Since the government is giving aid, they can lay down certain rules and regulations for management. They may also put guidelines for fee structure, admission for students and appointment of teachers. 
• Other Aided Institutions- For such institutes, the government can lay down rules and regulations. 

3. Linguistic and religious minority communities are covered by the expression “minority” under Article 30 of the Constitution. With regards to both Central and State law, the state shall be taken as the unit to decide whether a certain community is a minority or not. What happens when a community that is a minority in the country,  is a majority in a certain state was left unanswered. 
4. Article 30(1) does not override the law or government regulations, keeping in mind such regulations does not destroy the character of minority educational institutions. Laws pertaining to subjects such as health and morality still apply to them. This is despite the nature of the wording of Article 30. Regulations that ensure academic excellence and are for the welfare of teachers and students still apply. 

When aid is given to such institutions, it must not come with certain conditions or regulations that harm the management and nature of the institution. But if such regulations are not detrimental to its management and character, then it is not violative of Article 30. 

Islamic Academy of Education v. the State of Karnataka, AIR 2003 SC 3724

Facts

Several queries from the TMA Pai case were addressed. The importance of this case is that shows the various loopholes in the TMA Pai Foundation case, especially with regards to reservation of seats and autonomy of institutions with regards to management. 

Decision 

• Educational institutes that are not given aid by the State are entitled to autonomy should not disregard the principle of merit.
• Management of unaided non-minority institutes could reserve a certain number of seats for students who had passed the entrance exam but the rest of the students should pass through counseling regulated by the state
• These unaided colleges should also provide provisions for the underprivileged.
• The percentage of the seat should be fixed according to the locality and the needs of such an area. Different percentages can be fixed for minority and non-minority groups.   
• The bench considered Article 19 as the right to manage educational institutions for non-minority communities and Article 30 (1) as the right to manage educational institutions for minority communities. 
• Appropriation of seats can not be held as a ‘reasonable regulation’ or a regulation in the interests of minority communities. 
• The bench also stated that they would set up committees to monitor the fee structure and admission process in private universities. 

P.A. Inamdar v. the State of Maharashtra: Reservation in Private Educational Institution violative of Articles 30 and 19(1)(g) 

Facts

Several more queries from the  T.M.A Pai verdict were addressed and the Islamic Educational Academy case was reviewed as well.  This verdict goes against the Islamic Academy of Education verdict and reverts back to Pai. 

Decision

• In correlation with the Kerala Education Bill case, Lohoti, C.J divides the amount of protection educational institutions (both minority and non-minority) can seek from Article 30 into three categories. 
  1. Unaided or unrecognized institutions that can enjoy protection under this Article to their “heart’s content”.
  2. Institutions asking for affiliation or recognition from the State must abide by the rules and regulations enforced by the government. This is only if the nature of such regulations is for the benefit of the institution.
  3. Institutions receiving state aid must abide by regulations with regards to the management of funds. Article 29(2) will also apply as they would be required to admit students from non-minority communities. 
• The bench also puts a stop on policies that require unaided private colleges to reserve seats for citizens from backward classes. They believe such policies will cause the ‘nationalizing’ of seats. They believe such policies violated Article 30 of minority communities to set up and manage educational institutes autonomously and violated 19(1)(g) of non-minority colleges to practice any trade or profession. Instead, they let the state control the quota of seat-sharing between management.
• Interestingly, they do allow for the reservation of seats for non-resident Indians or NRIs. The reason they give behind this is that the high fees charged from such students could help students belonging to weaker parts of society. 
• In regards to admission procedure in unaided education institutes, the Bench decided that merit for admission in various levels of education is crucial but its level of importance increases with the rising level of education. Merit might not have much of a role to play in kindergarten admission but had a crucial role to play in college admission. 
• The bench also decides that every institute is allowed to set up its own fee structure but it shall be subjected to regulations to prevent excessive profiteering.
• And the last, but the most controversial, the bench stated that the Islamic  Academy of Education case shall not exceed TMA Pai. Committees to monitor the fee structure and admission process of private universities shall not happen. 

The Jain Community is not a minority

In the case of Bal Patil v. Union of India, it was debated whether Jains could become a minority under section 2(c) of the Minorities Act. The court rejected this claim and said it had statutory duties. They also stated-

“Before the Central Government takes a decision on claims of Jains as a ‘minority’ under Section 2(c) of the Act, the identification has to be done on a state basis. The power of the Central Government has to be exercised not merely on the advice and recommendation of the Commission but on consideration of the social, cultural and religious conditions of the Jain community in each state. Statistical data produced to show that a community is numerically a minority cannot be the sole criterion.” 

Conclusion 

Through this article, not only have we tried to understand who the government considers as minorities, but what logic the government has used to fix current-day reservation policies for minority colleges. We have seen the tedious process through which essential questions such as ‘who can be considered a minority’ and ‘whether affiliation is a Fundamental Right’. While it is clear that our judiciary has done extensive work in the field of cultural and educational minority rights, it seems that we have miles to go. 

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 skills.

The post Cultural and Educational Rights: Articles 29-30 Under Indian Constitution appeared first on iPleaders.

This article is written by Pratiksha Sengar.

Introduction

In India women can be anything they wish. They can be fighter-pilots, commanders, paratroopers athletes and also Prime Minister. But they cannot enter the shrine because they will defile it. India has been a place of contradictory beliefs when it comes to religious practices. On the one hand women are worshipped and on the other hand they are considered as impure during menstruation period. India, the largest democracy in the world has not given equal status to its half of the population. Earlier during Vedic period women were given equal status as men but then women status started declining. In the Vedic period women were given equal status as men. Gradually women condition in the society got worsened. Women became subordinate to men and they were not allowed to work and get education. After the Independence there were several measures taken up by the social activist and the state to uplift the status of women in the society but the battle has not won yet. Women have been discriminated in the name of customary practices. Religion has become the tool to justify the discrimination with the women. Several ill religious practices are prevalent today that are violating their fundamental rights of women.

One such case of discrimination that came before Supreme Court was Sabarimala issue in which women of age group of 10 to 50 were denied entry into temple. The Supreme Court struck down the rules which banned the entry of women in the Sabrimala Temple. The five judges’ bench decided the case with 4:1 majority. The dissenting opinion came from the Justice Indu Malhotra on the bench. The majority was of the opinion that banning women of 10 to 50 years of age is a violation of their fundamental right to equality and right of freedom of religion. The court was of the opinion that it cannot give constitutional legitimacy to any practice that is in violation of constitution. Defining religion has always been a herculean task for the judiciary. There are many practices in the various religions that are in contradiction with the constitution. The question arises whether these customary practices should be held superior to constitution. The religion has been patriarchal in many ways. Many practices of the religion put man at an upper pedestal than women. The court also held that banning entry of women into the temple is also violation of right to freedom of religion; they have the right to practice religion of their own choice.

History and Background

Sabrimala is a Holy Hindu shrine of Lord Ayyappa situated in the state of Kerala. Ayyappa is believed to be the son of two other male deities, Shiva and Vishnu, and this communion was made when Vishnu took female form. Ayyappa is therefore also called Hariharaputra, “the son of Vishnu [Hari] and Shiva [Hara] to defeat the female demon. The Kerala Hindu places of public worship act (Authorization of entry rules), 1965 regulate all the temples of Kerala. In Sabrimala ban on entry of women aged between 10 to 50 years was a customary practice. 

In the year 1990, a petition was filed by S Mahendran that women climbing the Sabrimala Shrine and offering prayers is against the customs and usages of religion. The Kerala High Court gave the judgment in the year 1991 banning the entry of women in the Sabrimala shrine. The court mentioned that it is custom since time immemorial and it is enforceable under Section 3 (b) of Kerala Hindu places of worship act (Authorization of Entry Rules), 1965 which states that “Women who are not by custom and usage allowed to enter a place of public worship shall not be entitled to enter or offer worship in any place of public worship’’. 

The court stated that it is not violative of Article 15, 25 and 26 of the constitution. The Indian young Lawyers Association challenged the rule 3 (b) of Kerala Hindu places of public worship act (Authorization of Entry Rules), 1965 in the Supreme Court on the grounds that it violates fundamental rights of women. Finally in the year 2016 the case of Indian Young Lawyers Association v. State of Kerala was heard by three judge bench which referred the case to the constitutional bench. The five judge bench comprising of Dipak Mishra, A. M. Khanwilkar, R. F. Nariman, D.Y. Chandrachud and Indu Malhotra commenced hearings of this case in July 2018.

Dissenting opinion and essential religious practice test

Justice Indu Malhotra, the only woman on the bench gave the dissenting opinion. She was of the view that this petition should not be entertained as it was not the court’s job to determine the practices of the religion except in cases of social evils like ‘Sati’. She held that banning entry of women in the Shrine cannot be compared to the evil practice of sati. The court determination of practices of religion would curb the freedom of religion and to practice religion according to their beliefs and faiths. It is the prerogative of religious community and not the courts to decide the essential practices of religion. She was of the view that court cannot impose its rationality or morality in the form of worship of a deity. There has always been conflict between court’s interpretation of religion and religious community interpretation of religion. This gives birth to the concept of essential religious practice test. 

In the case of Durgah committee Ajmer v. Syyed Hussain Ali and Ors. it was held that “there are some practices that are considered as an integral part of religion, that might actually be superstitions and not an essential part of religion and therefore it will not be given protection of the constitution”. 

In the case of Indian Young Lawyers Association v. State of Kerala the cause of dispute was whether constitutional morality can be compromised under the veil of religion. Women has been segregated and discriminated on the basis of physiological and biological factors. The petitioners contended that Sabrimala temple’s practice of banning women of menstruating age from entering the temple was in violation of right to equality and was discriminatory in nature. It was also a violation of the right to freedom of religion. On the other hand it was contended by the Respondents that the custom forms the essential practice of religion and it is protected under Article 25 (1) which states that “every citizen has the right to freely profess, practice and propagate its own religion.’’ Also it is separate religious denomination under Article 26 of the constitution and under Article 26(b) “it has right to manage its own affairs in matters of religion.’’ It was also submitted on behalf of respondent that Lord Ayyappa is “Naisthik Brahmachari’’ and allowing the women would affect the celibacy and austerity of the idol. The ban on entry of women was an old custom practiced in the Sabrimala temple and the court interference would led to intrusion into the personal laws of people. The court has to decide the essential practices of the religion. There was outrage in the public regarding the judgment because it was against their religion practices.

At play, the case was of conflicting claims between the temple authorities’ right to decide for itself and the religious community who believes that it is an old practice of their religion and on the other hand women who believe that their fundamental rights which are inscribed in the Indian constitution had been violated.

Women’s right of equality and freedom of religion

The Supreme Court in the case of Indian Young lawyers Association v. Union of India consisting of the five judge bench of A.M. Khanwilkar, Chief Justice Dipak Mishra, R.F. Nariman, and D.Y. Chandrachud held that denying entry to women in the Sabrimala temple is violation of their right to equality and right to freedom of religion. Women have equal right to pray as man. Article 14 of the constitution held that “the state shall not deny to any person equality before the law or the equal protection of laws within the territory of India.’’ In the case of Indira Sawhney v. Union of India it was held that the right to equality is one of the basic features of the constitution. Restriction on the entry of women is the denial of the right to equality as women were discriminated on the basis of their biological factor. Article 14 prohibits discrimination and discriminatory state laws. 

Article 14 is a bulwark against state any discriminatory or arbitrary actions. In the case of Dr. Noorjehan Safia Niaz and Anr v. State Of Maharashtra And Ors. The Bombay High Court held that the exclusion of women from the inner sanctum of Haji Ali Durgah is not only violation of their fundamental right of religion but it also against right of equality and non-discrimination. The main opinion in the case of Sabrimala shared by Chief justice Dipak Mishra and Justice A.M. Khanwilkar was “one side we pray to goddesses, on the other hand women of a certain age are considered as impure. This dualistic approach only depicts the patriarchy prevalent in the religion. The ban exacts more purity from woman than man”.

Article 25 of the constitution states that “all persons all equally entitled to freedom of conscience and the right to freely profess, practice and propagate religion” Justice DY Chandrachud held that logic behind banning of women was that it will disturb the celibacy of the lord Ayyappa. In this way the burden is put on the woman and it is stigmatizing women and stereotyping them. The judges were of the opinion that segregating women on the basis of biological factor is discriminatory and are in contradiction of the fundamental right Article 15 (1). The chief justice also opines that every woman has the right to worship at the place of her own choice and men and women have the equal right to worship. The judgment also ruled that Article 25 is also given protection under Article 25 (2) (b) which states that “the state can make laws for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.’’ 

Justice R.F. Nariman was of the opinion that fundamental rights claimed by the worshippers should be consonance of the fundamental rights given in the constitution. In the case of Mohd. Ahmed Khan vs. Shah Bano Begum and Ors. The Supreme Court struck down the discriminatory customary practice of Muslim religion in which women were not entitled to maintenance. In the Sabrimala case Devaswom board defend the ban on the basis that it is not for promoting misogyny but it is because of the celibate nature of the god. The women due to menstruation cycle cannot practice the penance of 40 days that is why their entry is banned into the temple. There were also contentions regarding the essential practice of religion. The court held that the practice of banning women does not come under the essential practice of Hindu religion and therefore worshipper’s right to practice religion is not violated. Justice Indu Malhotra was of the opinion that essentiality of a religion has to be decided within the religion. It can’t be up to the interpretation of the judges. 

India is a diverse country and in a pluralistic society constitutional morality gave freedom to practice even irrational or illogical custom or usages. In the case of Sri Lakshmindra theertha Swamiar of Sri Shirur Mutt and Anr. Vs. the Commissioner, Hindu Religious Endowments, Madras and Ors. The Madras High Court held that regardless of the essentiality of the religion discrimination cannot be allowed in violation of the basic structure of the constitution Women were discriminated on the basis of their biological factors and they were segregated on the basis of their womanhood.

Interpretation of religious denomination

The respondents argued in this case that they are religious denomination and they have the right to manage their religious matters. Article 26(b) of the constitution states that every religious denomination or any section shall have the right to manage its own affairs in matters of religion. The board argued that Sabrimala temple is separate religious denomination as it is functioned under the Devaswom board and they are not funded by any government organization and they have different practices as compared to other Lord Ayyappa temples and the temple does not come under Hindu religion. The court held that Sabrimala temple does not qualify to be religious denomination under Article 26. The CJI Dipak Mishra held that Sabrimala cannot be held as separate religious denomination as it is a public place and there is no concept of private Mandirs as such. 

Once a temple is opened it is a public place and everyone can go to the temple. He also opined that Sabrimala temple has visitors from people of different religions and it drew funds from the consolidated fund of India, hence it is a public place and does not qualify to be a religious denomination. The court held that Sabrimala temple cannot given the status of religious denomination as three things were necessary for qualifying as a religious denomination as held in the case of S.P. Mittal v. Union of India and Ors. To qualify as religious denomination the persons practicing the religion should have common faith, common organization and they should be designated by a distinct name. 

It was not proven by the respondents that Tanthris and worshippers of Sabrimala are designated by a distinct name. The court also referred to the case of Durgah Committee, Ajmer v. Syed Hussain Ali in which it was held that persons of all religions visit Ali Dargah so it cannot be given the title of religious denomination. The clauses (c) and (d) in the Article 26 is not in favor of religious denomination but to protect the rights. Also there are so many ill practices into the religion that became the essential practice of the religion, so freedom of religion is also not sacrosanct, restrictions can be imposed. B.R. Ambedkar once said that public places like temples, public roads are meant for public access and the question of entry is the question of equality. The right to manage the religious affairs cannot override the women’s right of freedom of equality and freedom of religion. In the case of S.R. Bommai v. Union of India it was held that “secularism’’ acts as a bridge between for the country to move from tradition to modernity. 

The judgment also noted that Section 3 of the Kerala Hindu Places of Public Worship (Authorization of Entry) Act, 1965 declared that every place of public worship of Hindus is open to all sections and classes of Hindus. The Section 3 of the Kerala Act is also protected under Article 25 (2) (b) of the constitution of India. The court also examined the validity of the Section 3 (b) of the Kerala Hindu Places of Public Worship (Authorization of Entry) Act, 1965. The ban on the entry of women of a particular age on the basis of custom and usage is in contradiction with Section 3 of the parent act and it is also in violation of Article 25(1) and Article 15 (1) of The Constitution.

Conclusion

B.R. Ambedkar was once asked why he is so much interested in public access for the deprived section of the society, he said that it is not just a mere question of public access it is a question of equality. When women are not allowed entry into the temple because of their biological factor it is assertion of the society status quo that they are not equal to men. Women rights are always sacrificed in the name of religion. The question arises whether constitutional morality can be compromised for public morality. Women have faced the brunt of discriminatory practices of patriarchal society. When Justice Malhotra argued that courts should not delve into the rationality of religious practices it has be understood that the rationality of any religion or a particular custom is mostly determined and propagated by the male leaders in the group. In order to perpetuate their domination and to retain power they tend to devise customs, often by the irresponsible interpretation of traditional texts, which results in the subordination of women. When the Tirumala Tirupati Devasthanam board decided to employ women barbers, there was strong opposition by the people. It was contended that women are impure during menstruation and devotees will be defiled by them. It was not possible to determine the menstrual cycle so the women were debarred from being employed as barbers. 

The Sabrimala temple also banned the entry of women of menstruating age into the temple on the same grounds. These were just the few incidents where women were discriminated on the basis of biological factor violating their fundamental rights. To introduce the concept of purity and impurity while deciding rights of women is against the constitutional right of untouchability i.e. Article 17. Women are discriminated not only on the basis of biological factor but it is because of orthodox ill practices of the Hindu religion in which women impure the upper class environment during menstrual cycle and after child birth. 

The constitution of India is based on the principle of non-discrimination. Judicial activism played an important role in protecting the rights of weaker sections of the society. The reforms that have been introduced into the religious matters are always burdened on the judiciary. The legislative need to make sure that religious practices that are in contradiction of the fundamental rights should be abrogated and religious reforms should be taken up by the legislature.

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 Siddhant Srivastava.

Since 1947 India and Pakistan have been in a state of war and conflict over the northernmost geographical region of Indian subcontinent i.e. Kashmir. This beautiful and full of mountain territory which is now claimed by both India and Pakistan was once a princely State of India.

History

The independent India came into existence on 15th August, 1947 and eventually Pakistan was also formed as a separate sovereign nation. Amidst all this the main issue was that how the territories were to be divided between India and Pakistan who were now two independent nations. Which parts of British India would fall in the territory of India and Pakistan respectively was a vague subject which needed an immediate solution. This solution was provided by “The Mountbatten Plan of 1947”. This specific plan had two objectives. Firstly, to divide British India into two dominions namely India and Pakistan and secondly, to decide over the fate of princely States that of which of the two nations they would become a part of or they would declare themselves as independent States. Following this scenario it was decided that all those areas which were homes to majority of Muslim population would become the part of Pakistan.

To enact The Mountbatten Plan of 1947, British Parliament passed the “Indian Independence Act, 1947”. The execution of the plan faced certain obstacles due to provinces of Punjab and Bengal since their demographics said that they had almost equal population Hindus and Muslims. For the purpose of creation of boundaries, two boundary commissions were set up for Punjab and Bengal respectively whose mandate was to keep intact as much as possible the Hindus in India and the Muslims in Pakistan. These commissions were chaired by Sir Cyril Radcliffe.

Though two separate nations were existing but the boundary which was vital to demarcate the territories of these nations was absent. Finally after 2 days of India’s independence i.e. 17th August, 1947 Radcliffe line was drawn between India and Pakistan. All these incidents gave rise to religious riots which led to a lot of bloodshed leaving thousands of people dead in the name of religion.

After the Radcliffe line was drawn the question regarding princely States kept knocking the door of British and Indian leaders. These princely States had an option to either secede and declare themselves as independent States or join any of the two new independent nations. This big task of integrating these princely States was taken up by Sardar Vallabhbhai Patel and V.P Menon who were known for their meticulous administration and sheer eye crossing hard work. All tactics were utilized to stitch the geography of India by convincing the Princes or Maharajas of the princely States who were known for being unscrupulous and for the varying ego they used to carry which was a test of patience for everyone involved in this gigantic task of integration of princely States which dotted the map of India. 

Summarizing these tactics it can be said that India adopted the Carrot & Stick approach for the fulfilment of the aforesaid purpose. Granting of Privy Purse as an incentive for the maintenance and expenditure of the States to the Princes and Maharajas proved to be the Carrot in this case. All the States which were towards India from the Radcliffe line had to face the stick and were warned of India’s military action against them if they refused to join the Indian territory and hence Indian leaders with aplomb moved a step ahead in their journey of deciding the geography of Indian nation.

Destiny of 565 princely States was yet to be decided then out of the blue another stumbling block came in front of the Indian leaders. Out of 565 States, 13 decided to join the territory of Pakistan and other 549 States became a signatory to Instrument of Accession with India and hence decided to adopt the Indian Constitution with full and immediate effect. 3 princely States that were refraining to join the Indian territory for their own reasons were Junagadh, Hyderabad and Jammu and Kashmir.

Even after the consistent efforts by the Indian leaders the Nawab of Junagadh decided to join Pakistan rather India by stating that though Junagadh was surrounded by Indian subcontinent from 3 sides but it could join Pakistan by sea and hence he signed Instrument of Accession with Pakistan to which India retaliated by shutting down the borders to Junagadh which led to ceasing of shipment of any good. Seeing the vagary of India, Pakistan initiated peace talks to protect the Muslim population of Junagadh and their interests as well and handed over the administration of the State to Indian government. All this led to the taking place of a plebiscite or a referendum in 1948 in which the dominant Hindu population of Junagadh decided to become a part of Indian territory.

The State of Hyderabad was also in the limelight of Indian government. Being the richest and prosperous State its annexation was vital for India. The Nizam of Hyderabad had his own staunch stand of becoming an independent State. In fact on 15th August, 1947 he declared Hyderabad as an independent nation. In the aftermath of Hyderabad’s declaration as an independent State it even initiated the process of arming itself for which there were rumours that it was getting necessary aid from Pakistan and the Portuguese in Goa. This plunge of the Nizam of Hyderabad was condemned by Sardar Vallabhbhai Patel and he said- “Independent Hyderabad is an ulcer in the heart of India which needed to be removed surgically.” Following this, “Operation Polo” was launched by the Indian government with the aim to wage a war against Hyderabad and attach it to India which was successfully achieved after a 5 day war.

The princely State of Jammu and Kashmir was eminently known for having its own legislations for protection of its citizens and their rights; an objective which the Indian government was trying to achieve by framing the Constitution was already to an extent achieved by Jammu and Kashmir long back. Out of the multiple rights which were given to the citizens of Jammu and Kashmir one of them was “Right to Property”. When the talks of annexation of different princely States was catching heat, one question was waiting for an answer that after integrating with India and adopting the Indian Constitution by the State of Jammu and Kashmir, whether the Right to property would be exclusively applicable for the citizens of Jammu and Kashmir or would it be applied to the entire territory of India. Parallel to this question it was observed that the circumstances in Jammu and Kashmir were quite similar to that of Junagadh and Hyderabad. At that point of time the Maharaja of Kashmir was Hari Singh who was a Hindu. Since the majority of population of Kashmir was Muslim, a conjecture was formed that Kashmir will become the part of India. But, Maharaja Hari Singh signed a standstill agreement with both India and Pakistan and declared his intention of establishing Jammu and Kashmir as an independent State.

In October 1947, Pakistan slowly through its armed tribesmen started infiltrating Jammu and Kashmir to occupy the area and establish their territory by dethroning Maharaja Hari Singh. The State was in turmoil and then Maharaja Hari Singh asked the Indian Government for its assistance. The stand of Indian government was that they could not provide any aid to Kashmir since it was not a part of Indian territory which made the Maharaja of Kashmir sign an Instrument of Accession (IoA) with the government of India on 26th October, 1947 following which the matters of defence, foreign affairs etc. was handed over to the Indian government. As soon as the IoA was signed, Indian troops came to Kashmir and the situation was put to a bit control. 

In January 1948, due to forceful encroachment by Pakistan to some of the territories of Kashmir, India took the issue to the United Nations who in turn suggested a plebiscite but it could not take place since both the nations could not arrive at an agreement on how they will withdraw their respective troops from Kashmir. The nebulous stage of Kashmir and both the nations’ inability to come to an agreement for referendum made way for a Ceasefire Agreement also known as the “Karachi Agreement” being signed by India and Pakistan on 1st January, 1949 which was mediated by United nations and resulted in the formation of Line Of Control (LOC) and it was decided that both the nations would be in control of that precise part of Kashmir of which they were currently in control of by stationing their respective troops. Therefore 70 years India has control over two third territory of Kashmir whereas Pakistan has its authority over one third part of Kashmir which is now known as Pakistan occupied Kashmir (PoK). After the Maharaja of Kashmir signed the Instrument of Accession, at that point of time Sheikh Abdullah was emerging as a fresh new face of Kashmir as its leader as he was always on the forefront to represent the problems of the Kashmiris. On one hand there was an option of plebiscite as suggested by the United Nations, whereas on the other hand, Sheikh Abdullah was gaining popularity and support of the people of Kashmir and was turning out to be a hero for them.

Amidst all this chaos, a thought crossed Pt. Jawaharlal Nehru’s mind which was to bring up something for the people of Kashmir so that even if the plebiscite takes place then they vote in favour of India. He wanted to make the people of Kashmir feel India as their safe and secure home. This thought of Pt. Jawaharlal Nehru sowed the seed of Article 370. In order to achieve what was thought a meeting was held between Sheikh Abdullah and the Indian government which is popularly known as the “Delhi Agreement” in which the discussion took place on the conditions of the Instrument of Accession and to incorporate this Instrument of Accession into the Indian Constitution Article 370 was introduced.

Article 370

In 1949, the Constitution of India was still in the making but since the Instrument of Accession was signed, special status had to be given to the State of Jammu and Kashmir. On 17th October, 1949 in order to give special status to the State of Jammu and Kashmir Article 370 was incorporated in the Constitution. 

Article 370 falls in the XXI part of Indian Constitution, which provides temporary, transitional and special provisions to 12 different States of India and Jammu & Kashmir is one of those 12 States. Parliament has the power to make laws for the subjects which falls in the Union list and the Concurrent list for all the States of India but due to Article 370, the law making power of the Parliament is restricted. As far as Kashmir is concerned, Parliament can make laws only on those subjects of union and concurrent list which were agreed upon in the Instrument of Accession which were Defence, Communication and External Affairs. These three areas fall under the ambit of total 31 subjects of union and concurrent list. Apart from these 31 subjects if the Parliament wishes to make laws on any other subject for Jammu & Kashmir then firstly they would need to take permission from the State government of Jammu and Kashmir. Generally, whenever Parliament makes any law for the nation it gets enacted with immediate effect in entire India but in the case of Jammu & Kashmir different road is taken for the enactment. The law passed by the Parliament would go to the State assembly of Jammu & Kashmir for its ratification. If it gets ratified then that law becomes applicable in the State.

The complexity of Article 370 does not come to an end here. Regarding the applicability of other Articles of the Indian Constitution it says that apart from Article 01 and Article 370, all those provisions would be applicable in the State of Jammu & Kashmir which was specified by the President in his 1954 order which is time to time modified as per the need of the Constitution.

The special status provided through Article 370 says that special laws would be made specifically for Jammu and Kashmir and unless contrary to it is mentioned, other laws would not be applicable in the State. Further, Article 370 went on to say that the special status given to the State of Jammu and Kashmir is a temporary provision. Article 370 even spoke for the process of its removal. It could be removed by the President of India through a Public Notification provided the President will require the permission of the Constituent Assembly of Jammu and Kashmir. After the completion of this procedure, Article 370 would cease to exist.

Keeping this information and analysing the present scenario it can be inferred that even though the Article itself mentions about the process of its removal, it could not be done till now because the Constituent Assembly which spoke about Article 370 got dissolved in 1957.

On 26th January 1950, the Constitution of India came into existence which had two important Articles regarding Jammu and Kashmir which were Article 01 which declared Jammu and Kashmir as a State of India and the other one being Article 370 which talked about the temporary special status given to the State of Jammu and Kashmir.

Article 35A

On 14th May 1954, a Presidential order was passed by Dr. Rajendra Prasad who was at the time the President of India named “The Constitution: Application to Jammu and Kashmir order, 1954” by virtue of which Article 35A was incorporated in the Constitution of India. Though this specific Article is not found in the Constitution of India, it can be found in the Constitution of Jammu and Kashmir. 

Like Article 370 demarcated a line between Jammu and Kashmir and other States of India, same was the purpose of Article 35A which in turn created discrimination amongst the people residing in its territory. Article 35A said that the laws which are followed in entire India would not be necessarily followed in Jammu and Kashmir. President along with the State assembly was authorized to decide which laws would be applicable in the territory of Jammu & Kashmir. It further mentioned the conditions which would make a person a permanent citizen of Jammu and Kashmir. Permanent residents of Jammu and Kashmir were entitled with special rights and privileges whereas non-permanent residents had to face certain limitations. Through Article 35A and relevant provisions of the Constitution of Jammu and Kashmir it could be decided that who can be a permanent resident of the State. Only those people who, since 14th May,1954 were the State subjects of Jammu and Kashmir or have been residing in it for the past 10 years or who have lawfully acquired immovable property in the State could be granted the status of permanent resident of Jammu and Kashmir.

Discrimination among the permanent resident and non-permanent resident of Jammu and Kashmir for past many years sparked a discussion in the Parliament but the discussion never came to a thoughtful conclusion. Basic right of Right to Vote was only given to the permanent resident of the State and non-permanent residents were kept away from exercising this right because they were not even entitled to the same. Some other examples of discrimination were like that if a Kashmiri woman gets married to an outsider or in other words a non-Kashmiri, then this would result in the forfeiture of her permanent resident status and all her property rights. The Hon’ble Supreme Court in the case of the State of Jammu and Kashmir v. Dr. Susheela Sawhney, held that a Kashmiri woman on marrying a non-Kashmiri would not forfeit its permanent resident status as well as her property rights. Her rights would remain intact but she would not be able to transfer such property to her children.

This discrimination eventually proved to be an obstacle in the desired development of Jammu and Kashmir. From land to government jobs, everything in the State could be held only by the permanent resident of the State. None of it can be availed by the non-permanent resident of Jammu & Kashmir. Due to this qualified doctors, teachers, researchers or experts of any field always refrained from going to Jammu & Kashmir.

On 17th November, 1956 Constitution of Jammu and Kashmir came into force which also declared it as an integral part of India. Pakistan has always been strongly opposing to recognize that Jammu & Kashmir is a part of India and in such belief they had continuously fought for the Kashmir territory either through their army or by deploying their troops impersonated as Kashmiri citizens. Displaying strong defence India kept taking back control of the Pakistan affected territories of India occupied Kashmir.

Indo-Pakistan War of 1965

The Kashmir issue including several other events instigated the Indo-Pakistan War of 1965 in which Pakistan resorted to covert operations and launched “Operation Gibraltar” with the goal of promoting infiltration into the State of Jammu and Kashmir and give a boost to a rebellion against India. Since the operation was meant to be covert Pakistani troops entered the State disguised as Kashmiri locals who were very determinant to cause insurgency in the Indian nation. This move was followed by a full military attack by India in West Pakistan. The war which lasted for 17-22 days had involvement of armies, air forces and navies of both the nations which eventually made them bear huge loss of life, money and property. Though both the nations claim being the victor of the Indo-Pakistan war of 1965 but analysing the status of both the nations post war it can be easily inferred that Pakistan made the entire world visible its inadequacy in war affairs and it even failed to garner support from any of the foreign nations.

Seeing the turmoil in India and Pakistan, the United Nations came into the picture and initiated peace talks between two nations or “rival nations”. During this decade India and Pakistan developed their political relations and made stronger ties with Soviet Union and China respectively. Further, as a truce both the nations signed the “Tashkent Declaration” which was a peace treaty and agreed to return the border status of Kashmir to exactly as it was in 1949.

Indo-Pakistan War of 1971

However this truce could not last even a decade and within 6 years i.e. in 1971 another war sparked off between the two rival nations but for a change, this time it was not related to the Kashmir issue. The nation of Pakistan was divided into two sub nations which were West Pakistan and East Pakistan, which was initially East Bengal. These two sub nations could not be integrated as a whole because they were separated by the huge territory of India. Since the West Pakistan held the dominant political power, East Pakistan used to feel discriminated and exploited by West Pakistan. In simple words, West Pakistan miserably failed to give certain recognition to the language, culture and values of residents of East Pakistan which was a residence to thousands of Bengalis. This failure of Pakistan gave rise to the Bangladeshi nationalism which Pakistan could not bear and wanted to suppress. On the night of 25th March, 1971 ruthless “Operation Searchlight” was launched by the forces of Pakistan to end this retaliation once and for all and Pakistan was ready to brutally slaughter who would not submit to their cause and in fact Pakistan did so by adopting the measure of genocide and ensuring devastating violence and slaughter. There is no exact figure of the number of deaths that night but the figure ranges from 10,000- 22, 000. Due to such atrocious act, thousands of Bengalis took refuge in India and on the anticipation of India’s intervention in this scenario, Pakistan launched airstrikes on multiple bases on the western border of the country which marked the starting of war between the rival nations. Response of India for this led to a 13 days long war on the Eastern front resulting in a humiliating defeat for the forces of Pakistan and the nation had to sign “Instrument of Surrender” in December 1971 which in turn gave birth to a new  sovereign country : People’s Republic Of Bangladesh.

On the 5th of July, 1990, in order to grapple with the rising instances of armed militancy in the Kashmir valley it was declared as a disturbed area under Section 03 of The Armed Forces Special Powers Act which gave the armed forces the authority to prohibit a gathering a five or more than five persons if they have a suspicion that they might do something in contravention of law. They were even empowered with the authority to arrest on suspicion someone without a warrant and search premises without a warrant. Armed forces were given such authorities and powers in order to maintain public order in the disturbed areas. Through a suitable notification in the official gazette the Central government or the Governor of the State or the Union territory can declare the whole State or a part of it as disturbed.

Kargil War of 1999

The Indo-Pakistan war of 1999, also known as the Kargil war began in May. Pakistani troops managed to infiltrate the Line of Control and got control of several key posts in the State of Jammu and Kashmir. Trying to play diplomatically, Pakistan straightforwardly denied even a bit of involvement in this event and contended that the troops were not of Pakistan. By launching a strong military operation India showed its retaliation and neutralized the troops and recovered the lost territory. Sticking to its false Statement, in the early days of the war, Pakistan even refused to recognize the corpses of its dead soldiers. Later on because of immense international pressure, Pakistan acknowledged its role in the Kargil War due to which it faced a lot of criticism worldwide and its economy which was already on the back foot suffered a lot because of the decrease in international trade.

Now, even after 3 wars with India, Pakistan still continues to promote the idea of ceasefire violation, infiltration, militancy and as the intelligence agency of India claims, supporting the terrorist organizations who have their bases in the Pakistan occupied Kashmir and have only one aim of creating unrest in India.

Present scenario and Removal of Article 35A and 370

In 2015, Bhartiya Janta Party (BJP) formed a coalition government with People’s Democratic Party (PDP) and Mehbooba Mufti was made the Chief Minister of Jammu and Kashmir. After 3 years i.e. in December 2018, BJP broke its alliance with PDP and President’s Rule was imposed on Jammu and Kashmir. In the following year of 2019 BJP emerged as a winner of Parliamentary elections.

After this win, BJP was keen to comply with their election manifesto which clearly spoke out loud about their aim to remove Article 370 and 35A. Through the Presidential Order of 1954 which was given by Dr. Rajendra Prasad, Article 35A and Constitution of Jammu and Kashmir came into existence. On 5th August, 2019 by using his powers mentioned in Article 370(1), President Ram Nath Kovind issued a Presidential order named “The Constitution(Application to Jammu and Kashmir) Order 2019” which said this order would supersede or replace the Presidential Order of 1954. As soon as the Presidential Order of 2019 was passed, existence of Presidential Order of 1954 ceased to exist and with it Article 35A as well as Constitution of Kashmir was abolished.

Following this historic Presidential Order, Home Minister Amit Shah proposed two resolutions. Firstly, since Article 370 is leading to lot of discrimination therefore some changes should be brought in this Article in order to make it inoperative and secondly, he proposed Jammu and Kashmir Reorganisation Bill and said that due to Article 370, complete democracy could not be established in Jammu and Kashmir and State’s development was hindered. Regarding this Statement he stated an example that, AYUSHMAN Bharat scheme is applicable in Jammu and Kashmir but there are not any qualified doctors in the State because of multiple restrictions on non-permanent residents.

The Presidential Order of 2019 removed the deadlock of the requirement of the permission of the Constituent Assembly for removal of Article 370 and added clause (4) to Article 367. Article 367 which is an interpretation clause of Article 370 now said that the word “Constituent Assembly” used in Article 370(3) from now on would mean “Legislative Assembly”.

The second resolution which was Jammu and Kashmir Reorganisation Bill, section 03 of it Stated that a new Union Territory would be formed comprising of Ladakh, Kargil and Leh which would not be having a legislature and its section 04 Stated that another Union territory would be formed which would be called Jammu and Kashmir and would have a legislature as well.

Aftermath: Positives and Criticism

This bold proposed resolution of the Indian government regarding the conflict surrounded region of Jammu and Kashmir created a wave of protests in Rajya Sabha. These resounding protests were highly displayed by some human rights activists and certain portion of the general public as well. The aftermath of this historic decision left the entire world spell bounded and in anticipation as to what the future holds for the newly created two union territories in the northernmost part of Indian subcontinent. As clearly Stated in the election manifesto of BJP this resolution aimed to redraw the map and future of Jammu and Kashmir.

Commendable impacts took place after the removal of 35A and changes brought in Article 370. Enlisting some of them, the government showed the positive side of implementing such resolution. The permanent citizens of Jammu and Kashmir had dual citizenship. One citizenship of being a resident of India and other citizenship of being a permanent resident of the State of Jammu and Kashmir through which they were entitled to certain special rights and privileges which were not available to non-permanent residents of the State. By virtue of removal of 35A all the residents of the State of Jammu and Kashmir were brought to the same status regarding rights and privileges.

Earlier Article 356 and Article 360 of State Emergency and Financial Emergency respectively were not applicable to the State of Jammu and Kashmir but after abrogation of Article 35A and 370 they are made to be applicable in Jammu and Kashmir territory. The State of Jammu and Kashmir had its own State flag which also got removed and like every other State it would be represented by the flag of India.

A lot of discrimination was faced by Kashmiri women and the minorities of the State of Jammu and Kashmir who had almost negligible rights. In fact the Constitution of Jammu and Kashmir did not even mention of minorities in its text. Muslim women were deprived off their right of inheritance and the citizenship of Jammu and Kashmir in case they got married to a man who was not a permanent resident of Jammu and Kashmir. Further the sectors which were discriminated against the non-permanent citizens of Jammu and Kashmir were: Education sector, Employment sector and in addition to it they were not allowed to buy any immovable property of the State.

Many media houses including some international ones between the nebulous circumstances of the conflict ridden State and warning against the escalation of violent activities tried to shift the radar to the ulterior motive of proliferating Hinduism. International media houses were also on different sides as a critic of this decision.

Israel’s “The Jerusalem Post” in their analysis talked about what was the Kashmir conflict and how it had widespread effects on multiple countries such as Afghanistan, Pakistan and the United States of America. The Article titled “Why Kashmir Matters” the author wrote, “This comes as the US wants Pakistan to refrain from stoking tensions where the US is seeking a deal with the Taliban. It also comes as India wants to assert itself and is concerned over another round, like happened in February when its jet was shot down. India which has close relations with Israel, has been trying to modernise its army. The Kashmir tension, therefore have much wider regional and global links.”

Al Jazeera, the Qatar based television news channel displayed the news of abrogation of Article 370 as the highlight of their website with the title of “Darkest day: Uproar as India strips Kashmir special status” which mentioned of an opinion segment titled “There is reason to fear for the safety of every Kashmiri in India”. It said that the decision of the government to snatch the special status of Kashmir from it was “deceitful and illegal”. Further author said that “The revoking of Article 370 is just the latest step in BJP’s grand plan to transform India into a Hindu only nation”.

Saudi Arabia’s Saudi Gazette also Stated the decision of the Indian government as a dangerous blunder claiming that nothing good could come out of the decision plus it published that “The violence has been met with even more violence by the beleaguered Indian security forces ever since the dissolution of State’s assembly in 2018.”

Some news stations mentioned about Pakistan’s reaction about the muscle power decision of the Narendra Modi led BJP government. News Middle East in its report titled “Pakistan anger as India ends special status for Kashmir” which astutely published Pakistan’s exasperation in their Statements when it condemned this decision of India and claimed it as an illegal activity. 

One of the most famous publications of the world, US’s The Washington Post published a report titled “India revokes Kashmir’s special status: Raising Fears of Unrest” in which they quoted Iltija Javed, daughter of former Chief Minister Mehbooba Mufti who was put under house arrest as saying that “They feel as if an atmosphere of death is looming over us”. 

History of issue regarding Kashmir and the association of India and Pakistan with it has been a ride full of bumps but since 1947 the temptation of India and Pakistan to align Kashmir with their respective territory resulted in decades of conflict and a long period of insurgency which still continues to breathe in both the nations.

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 Devansh Sharma, 1st year Student, at Law School, Banaras Hindu University. This article deals with the detailed explanation of Article 15.

Introduction

The stories of women being beaten up for drawing water from well, people being harassed if their shadow falls on other men, devotees being stopped from entering into the temple and beaten up for touching idols of gods has become a common affair of newspapers headlines whenever I go through one. It seemed to me like a nightmare which has compelled me to look into the provisions in force that prohibit such differentiation.

Article 15 of the Indian constitution talks about the prohibition of discrimination  (unreasonable differentiation). But questions that arose in the mind was, what does discrimination signify?

Scope of the word ‘Discrimination’:

Discrimination occurs when you are distinguished or treated in a less favourable manner than another person under similar circumstances or if you are disadvantaged by being placed on equal footing another under different circumstances, for example, you being disabled or pregnant. This action cannot be reasonably and objectively justified.

Article 15 restricts discrimination on the ground of:

• Religion – It means that no person should be discriminated on the basis of religion from accessing any public place or policy by the state or any group.
• Race – Ethnic origin should not form a basis of discrimination. For example, a citizen of Afghan origin should not be discriminated from those of an Indian origin.
• Caste – Discrimination on the basis of caste is also prohibited to prevent atrocities on the lower castes by the upper caste.
• Sex – Gender of an individual shall not be a valid ground for discrimination in any matter. For example, discriminating transgenders, females, etc.
• Place of birth – A place where an individual is born should not become a reason for discriminating among other members of the country.

Often the word ‘Discrimination’ is perceived to be contrary to the principles of equality. Individuals tend to confuse discrimination with breach of equality. Can something that is disadvantageous and against the general classification of the individual be taken as discrimination? The answer remains ‘NO’. The Supreme Court in the following cases has observed that every classification does not constitute discrimination in the first place. 

In the case of Kathi Raning Rawat v. State of Saurashtra, the state of Saurashtra set up special courts under Saurashtra State Public Safety Measures Ordinance 1949, to adjudicate on the matters of section 302, section 307 and section 392 read with section 34 of the Indian Penal Code, 1860. The contention brought before the court was that these provisions are discriminatory for the residents depending upon the territory.

The court stated that all kinds of legislative differentiation are not discriminatory. The legislation did not refer to certain individual cases but to offences of certain kinds committed in certain areas and hence it is not discrimination.

In another significant case of John Vallamattom v. Union of India, AIR 2003 SC 2902, the Indian Succession Act 1925 prevented the petitioners from bequeathing property for religious and charitable purposes. The petitioner contented it to be discriminatory against the testamentary dispositions by a Christian.

The court stated that the Act was to prevent people from making injudicious death-bed bequest under religious influence, but had a great impact on a person desiring to dispose of his property upon his death. Hence, the legislation is clearly discriminatory as the properties of any Hindu, Muhammadan, Buddhist, Sikh, Jain or Parsi were excluded from the provisions of the Act. Further, no acceptable reasoning was provided to show why the provision regulates religious and charitable bequests of Christians alone.

When the concept that a reasonable classification can never amount to discrimination is clear, we suddenly get stuck by the idea of reservation. Is it not discriminatory to differentiate between two candidates who are appearing for the same post or exam with the same qualifications? What allows provisions for such differentiation to be made?

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Reservation

On research, we find that Article 15 Clause (3), (4) and (5) itself stands as an exception to Article 15 Clause (1) and (2). Article 15 Clause (3), (4)and (5) states that the legislature is free to formulate special provisions:

• For women and children,
• For the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes,
• Make provision relating to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions.

Though being the exception to the legislation that forbids discrimination on grounds of sex and caste, this does not come under discrimination. Rather, the term ‘PROTECTIVE DISCRIMINATION’ (also known as Positive Discrimination) is used by the legislators to justify reservation and is defined as the policy of providing an equal platform to the underprivileged and the suppressed classes and to lift their status in the society. This system of reservation works on the principles of intelligible differentia (difference capable of being understood). 

You might think, though this theory helps resolve problems of social inequality, what about the sensitive jobs requiring a greater skill set (the medical field, army, etc)? Should the reservation be allowed in those sectors? Isn’t it wise to keep such fields outside the scope of reservation?

• Reservation In Medical Colleges

The thought of not allowing reservations in certain sensitive areas of practice would cause the sector to be monopolized by the privileged classes. Reasoning doesn’t stand on the factor of skills, it stands upon the factor of circumstances.

Let us take an example, imagine Ramu to be a boy of the underprivileged class whose ancestors and parents have been deprived of education due to discrimination from the upper classes. Ramu has no one in the family to guide him but even then he appeared in medical exams; whereas another boy Vicky, belonging to the upper class, has parents who are well qualified and have been in elite professions. Vicky was constantly guided and mentored by his parents and he also appeared in the exam. Even in such a hypothetical story, our conscious explains that there must be some provisions to place Ramu on equal footing with Vicky to allow him to compete fairly. 

In Ajay Kumar v. State of Bihar, the issue was raised regarding the permissibility of providing reservation under Article 15(4) in postgraduate medical courses. The contentions raised by the appellant were that Article 15(4) neither speaks nor permits reservation in educational institutions. While certain preferences and concessions can be given, reservation of seats is beyond the limits of clause (4) of Article 15 of the constitution of India. The appeal was rejected by the court as special provisions also include reservation provisions and not just preferences and concessions.

• On the Basis of Domicile

After we comprehend the above provisions, the concept of reservation might seem fairer but reservation on the basis of domicile still remains as a pricking concept. What allows the state to formulate laws that differentiate individuals on the basis of domicile and what needful purpose does this kind of reservation serve?

As we find out that in India the preferential policy is of two types: 

• The first to impart special benefits to the socially and educationally backward classes, scheduled classes and scheduled tribes.
• The second to provide special benefits to the local ethical groups of the state against the migrant from the other states.

This provision does not count as discrimination under the purview of Article 15 as reservation on the basis of domicile is not one of the grounds of article 15. Article 15 defines “place of birth” as a ground of discrimination but reservation based on domicile generally comes under “place of residence” which is outside the bounds of “place of birth”. The place of birth and place of residence can be different for a single individual.

Special provision for Women and Children 

Once we know that reservation arises due to the presence of clause (3), (4) and(5). Let us now try to examine the clauses one by one.

Clause (3) of Article 15 of the Indian constitution speaks about special provisions for women and children in order to protect them from the clutches of formal equality.

Thought of this legislation to be carte blanche (complete freedom to act as one wishes) to impose differential benefits and ostensibly to the advantage of women at the cost of burdening men may ponder in your mind. But it is justified as it compensates for early injustice met by women and children at the hands of a male-dominated society. Right to free and compulsory education for children under the age of 14 years, section 56 of CPC, the Maternity Benefit (Amendment) Act 2017, etc. are some of the best examples of such provisions.

In the case of Rajesh Kumar Gupta v. State of Uttar Pradesh, AIR 2005 SC 2540, U.P. govt made provision providing reservation BTC training programme as follows:

• 50% of the candidates to be selected shall be from Science stream,
• 50% from the Arts stream,
• further 50% would be female candidates,
• And the other 50% would be male candidates.

The contentions raised were that the reservation format formulated was arbitrary and violative of Articles 15. The court held that the reservation format introduced was not warranted by the provisions of the Indian constitution, being over and above the constitutional reservations in favour of backward classes.

Whereas In Union of India v. K.P. Prabhakaran, (1997), the railway administration took the decision to appoint Enquiry cum reservation clerks in four metropolitan cities i.e. Mumbai, Delhi, Kolkata, and Chennai. The decision stated that the post would be held by women only. The court rejected the contention of the government urging that this provision is protected under Article 15(3). It said that Article 15(3) cannot be read as the provision or as an exception to what is guaranteed under Article 16 (1)(2).

These cases clearly explain the applicability of the phrase ‘Special provisions for women and children’ in matters of the reservation to education and employability. But what if there are laws which differentiate or prefer women over men, can it be called discrimination.  

In cases of Girdhar v. State, AIR 1953 MB 147 the petitioner was convicted under Section 342 and 354 of the Indian Penal Code. The petitioner claimed that as there are no provisions relating to assault against men with the intention to outrage his modesty, hence providing such laws for women is discriminatory. Section 354 is contrary to Article 15(1). The petition was dismissed stating the law to be in consonance with Article 15(3). 

In Choki v. the State of Rajasthan, AIR 1957 Raj 10, Mt. Choki and her husband conspired and murdered their child, the application of bail was presented on the plea that she is an imprisoned woman, with no one to look after her young son. The judge rejected the application saying that there were no extenuating circumstances and the Constitution has no provisions under which leniency could be shown to women on account of her sex. The same was challenged before the Supreme Court.

It was held that Article 15(3) talks about special provisions for women and children. And under the light of this provision, Mt. Choki was granted bail as she was a woman and there is a young child dependent on her, thus it becomes necessary for the state to protect the rights of the child.

• Women and Sexual Harassment

Clause 3 of Article 15 also allows the government to frame special laws regarding the protection of women and abolition of sexual harassment. Sexual harassment is a clear violation of the fundamental rights of equality guaranteed under Article 14(2) and Article 15(3). The sexual harassment of women that had become a frequent story of everyday newspapers was dealt with by the supreme court in the famous Vishaka case. This case led to the formulation of the Vishaka guidelines.

• Reservation within Reservation

The concept of reservation within the reservation is a condition where reservation is provided to a particular class which is already under a reservation category. For example, A man is belonging to a particular community of Schedule castes is entitled to reservation for SCs but what if the community that he dwells from is more underprivileged as compared to the other communities of the SCs category.

Is it justified to make them stand at par with others? Thus the concept of reservation within reservation emerged to uplift those underprivileged communities of the reserved categories. Current examples of such reservations are Maratha reservation in Maharashtra who already fall under the OBC reservation in Maharashtra, the Jat reservation demands in Haryana, and the 7% reservation of Madiga community under SCs reservation.

Area-wise reservation: Article 371

There are also some special provisions for specific states. There are certain articles in the Constitution of India which provide for special state provisions and allow for the formulation of the area-wise reservation to provide opportunity and facilities for the local people of the state in the matters of public employment and education, and different provisions might be for different parts of the state.

Following table mentions about articles with special provisions for different states are:

Special Provision for the advancement of Backward class: Article 15(4)

Coming onto the next clause, i.e. Clause (4) of Article 15 of the Indian constitution. It allows the state to enact laws and provisions relating to the advancement of socially and educationally backward classes and the scheduled castes and scheduled tribes.

• Socially and educationally backward classes

The phrase “socially and educationally backward classes” under Article 15(4) refers to underprivileged classes of people who have faced discrimination and prejudice from the privileged class. This category includes the class of people who belong to backward classes in society but are not covered under SCs or STs. OBCs have been included under this phrase of socially and educationally backward classes as a category for reservation.

• The limit of reservation

The Supreme Court of India has put up a ceiling limit to the total percentage of reservations that can be provided by the government.

In Indira Sawhney v. Union of India, AIR 1993 SC 477, 27% reservation for the ‘Other Backward Classes’ was introduced. Supreme Court of India put up a limit of 50% as the total percentage of reservation as it was reasoned that allowing the limit to exceed will deprive others of their right to equality. Supreme Court also provided for the guidelines to exceed the limit of reservation under extraordinary situations.

• Reservation more than fifty per cent 

There is an upper limit of 50% on the total reservation, but as it was allowed to exceed under extraordinary circumstances. There are 4 states which have breached that limit of 50%:

• Tamil Nadu has 69% reservation with 50% reservation for OBCs;
• Maharashtra has 52%;
• Telangana has 62%;
• Haryana has 67%;

It is done under the extraordinary need for upliftment of certain backward classes.

Relationship to Article 14

Article 15 is the weapon that breaks the wall of discrimination between the upper caste and the lower caste. Article 15 is an extension of Article 14 which talks about equality among individuals and equality before the law. It means that equals should be treated equally and unequal to be treated unequally, the same has been reiterated in the Indira Sawhney v. Union of India, AIR 1993 SC 477. Article 15 derives its entire power from article 14.

• To maintain equality, it forbid the practice of discrimination under clause(1).
• To provide equality, it allows for special provisions relating to women, children, SCs, STs, and socially and educationally backward classes.

Hence, it is Article 14 whose aims Article 15 tries to achieve.

Conclusion

Article 15 has always hurdled its way out to reach to the one really in need. The condition of the downtrodden has highly improved since its inception in 1949. It provides a base to each and everything that legislature needs to formulate provisions to promote harmony in the society. There is an extreme decline in the number of cases of atrocities against the underprivileged classes.

Article 15 truly is the guardian of downtrodden and a shield against discrimination, it has helped the Indian society to stand tall and proud despite such a huge diversity and all kinds of sexism, racism and rigid caste system and will continue to contribute to India’s unity and equality, forever.

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 Vanshika Agarwal.

Abstract 

The present article looks into the unrepresentative character of the existing first-past- the-posť (FPTP) system in India and suggests an alternative model so that our democracy can be made more representative and meaningful. The FPTP system of election results in the victory of a candidate with a minority (less than 50% of votes polled) of votes which enables the candidate who gets the most votes (need not be a majority of total votes polled) to win an election in a multi-cornered contest. This implies that only a minority of voters who have voted for the victorious candidate get any representation at all. Thus, this paper seeks to examine other alternatives that best suit the needs of our country.

Electoral system

Electoral system can be described as the translation of votes casted by people in elections into seats won by parties and candidates. Different electoral systems yield different results and different forms of representation. The form of electoral system used in India for General Assembly Elections is First-past-the-post-system. In this system, each voter has a single vote. If a person in a constituency gets the highest number of votes, he/she wins. Here, the highest votes are in terms of “relative majority”, i.e., a person should score more than the best of opposition. Voting takes place in single member constituencies in India and on a categorical ballot. Categorical ballot is the one in which a person has to decide the candidate he prefers over all the other candidates.

Thus, it can be said that Indian Electoral System is first-past-the-post-system that takes place in single member constituencies on categorical ballot.

Merits and demerits of First past the post system

Merits

• Simplicity: First past the post system is quite simple as it allows people to choose between parties as well as candidates. This gives the voter an option to choose a candidate of his choice as opposed to choosing from a list of candidates presented by the party.
• Stability: This system is considered to be stable. The Supreme Court in RC Poudyal v. Union of India had categorised the FPTP system as possessing ‘the merit of preponderance of decisiveness over representativeness’. It presents the opportunity to form majority government which is quick and decisive. This ensures stability of power and quick implementation of policies.
• Strong Opposition: This system is responsible for giving rise to strong oppositions by virtue of Opposition getting enough seats to perform a critical checking role. This happens because both the winning and opposition party receive more seats in comparison to the share of their votes.
• More inclusive: This system allows for candidates who do not belong to any party to run for elections as independent candidates. Moreover, this system encourages parties to be diverse in their composition in order to appease to different societal groups, so that they can cater to different demands and aspirations of people living in different regions and conditions.
• Geographic accountability: This system is responsible for Parliament of geographic representatives. Since, people are elected from specific constituencies, they feel obligated to work for the welfare of the people as their re-election depends on these people only.

Demerits

• Disproportionality: In first-past-the-post-system, there is disproportionality between number of votes won by parties and share of seats won by them. The party winning the seats does not necessarily have to be the one with the most number of votes, it just has to get more votes than the strongest opposition. Thus, the desires of the most of the population are not represented by this system. In this way, the votes are wasted. 

In Indian history, never has the share of seats won by political parties matched the percentage of votes won by them. This disproportionality has been reflected in pretty much all the elections, where the Congress bagged 75% seats in Lok Sabha with 45%, 48% and 45% votes respectively in the years 1952, 1957 and 1962. Such is the condition of Indian Parliaments, where parties win due to inherent flaws present in the electoral system.

• Majority governments: This system tends to produce majority governments by over-rewarding major parties and under-rewarding smaller parties. As is evident from earlier example, majority governments emerge on minority votes. It can be said that majority governments are formed only against fragmented oppositions and there was a reverse in trend in 1977 when oppositions united into a composite entity. Thus, the same system that brought about stability was the reason behind instability and uncertainty. 
• Excludes women and minorities from fair elections: This system tends to exclude women and minorities from fair elections. This happens because parties tend to put out the most acceptable and popular person as a candidate from a particular constituency. And because of societal problems and structures, these candidates seldom end up being women or minorities. It has serious implications because the composition of the Parliament suffers from serious problem of lack of representation of about 50% of the population of the country. This in turn has much more serious consequences because the laws that end up being made are devoid of the voices and experiences of these people and thus, biased and majoritarian in nature.
• Susceptible to manipulation: The candidates often indulge in vote-bank politics and sectoral politics to win elections or get re-elected. This leads to diversion from talking about issues of importance. The candidates only talk about issues that would rile up the public and thus, try to secure votes by appealing to their emotions and beliefs. This also ends up making people who hold minority views feel unsafe and dissatisfied. Growing intolerance can also be attributed to sectoral politics.

Thus, it is safe to say that the first-past-the-post electoral system, which is a remnant of Colonization, is problematic on various levels. Not only does it lead to disproportionality and exclusion of minorities and plurality of voices, but also its own advantages are countered by it. The elections after 1977, when coalition governments came into picture and the era was marked by presence of governments which could not even complete their terms, show that this system led to instability and insecurity. Thus, we need to find an alternative to this electoral system as its supposed merits are countered by it and it has many demerits which are uncharacteristic of a true democracy.

Proportional Representation

This system works behind the principle that representative government has to be truly, in essence, representative. It is practised in various forms in various countries but the principle remains the same. In this system, electors cast one vote for party or party lists, if it is a multi-member constituency and then, number of seats are allocated proportionally to parties based on their share of party votes. Under this system, a voter exercises two votes. He/she has to choose both the party and candidate on two separate ballot papers. 

Even the law commission of India in its 170th and 255th Report suggested adoption of list system, which is a variant of proportional representation. The rationale given behind this suggestion was that it would lead to broad proportionality, stable government, extension of voter choice and maintenance of link between MP’s and geographical constituencies. 

The main objections that are provided against this system are that: 

1) it tends to encourage casteist and communal voting patterns, which in turn leads to the spread of religion and caste based communal parties;

2) the link between MP/MLA’s and their constituency is not present. Both of these contentions are ill-founded as: 

• Section 158(4) of Representation of People’s Act, 1951, which talks about forfeiture of security deposit of party which fails to garner one-sixth of the total votes polled, will go a long way in curbing the menace of spread of caste and religion based political parties. This will happen because small parties which rely on communal votes would not be able to qualify to get seats in the Parliament due to lack of adequate votes by the niche population they cater to; 
• the link between MP/MLA’s and constituency will not be missing as there will be two votes. One in favour of candidate from territorial constituency and one in favour of list put forward by political parties. The winner from territorial constituency will be given primacy provided the party he belongs to is able to qualify other considerations. 

It is also pertinent to note that list systems would encourage the parties to put forward skilled and intelligent leaders, who will then be able to campaign throughout the State as opposed to one particular constituency. This would help in having good leaders in a particular party as no party would like to lose due to presence of criminal people in the party list. Moreover, it cannot be argued that Rajya Sabha or Legislative Councils serve the purpose of list system as the people electing these people are themselves voted on minority votes. Hence, they reflect their own biases and thus, Rajya Sabha ends up being a reflection of Lok Sabha itself.

Proportional representation, tries its best to be truly proportional, by curbing the inconsistency between the share of votes and seats. It ensures that smaller parties get representation and also, helps in bringing more women and minorities to contest for political power.

Case for Proportional Representation in India

Electoral Systems are embedded in country’s deeper political traditions and institutions and it is not easy to transform them, but when they fail to cater to the needs of the people, they should be changed as they go against the essence of the principles of democracy.

To make sure that there is political stability with equitable representation, there must be attempts to change the current electoral system as it leads to disharmony and inequality. 

In India, switching to proportional representation as on the model of Germany, where mixed proportional system is practised with 50% seats allocated to MP’s from Constituencies and 50% seats allocated to MP’s from party lists (provided they are able to gain 5% of party votes), would help in solving the problems that currently grapples the country.

This would pave the way for wider electoral reforms like funding of elections by the State, which in turn would lead to decline in malpractices adopted by Political Parties to gain votes. The present system is the one “where the winner takes all”. It promotes communalism, use of muscle power and corruption. All of these are problems that we need to do away with. 

A questions arises as to what will be the implications of adoption of German Electoral System in India. This system would help in making sure that majoritarian governments are not formed, as happened in the elections of 2014. This would also help in ensuring adequate representation as now people’s votes would actually be reflected in the results. Moreover, rules can be made to put women candidates in winnable positions in lists. The party lists can be formed to provide tickets to different sections and communities as well. This would help in doing away with the problem of minority representation. And if people feel represented enough, or feel that their voices are being heard and that they are able to identify with the people in power, they would turn up to vote more.

Thus, it is suffice to say that PR system tends to be more democratic and effective with fewer complains and greater voter turnout. “The rule of proportional representation has the three advantages of enabling Parliament to be “the mirror of the national mind”, of consolidating the state by ensuring that “minorities will not have grievances about their representation”, and ensuring that opposition in the House be based on large national issues”, and these precisely are the reasons as to why we need to adopt this system.

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

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