This article is written by Dhruti Lunker.

“No one truly knows a nation until one has been inside its jails. A nation should not be judged by how it treats its highest citizens but its lowest ones”.

–Nelson Mandela

Abstract

Man is a social animal; he needs a partner to share his joys and sorrows with. The controversy regarding providing conjugal rights to prisoners has been that the spouses of inmates are deprived of their right to lead a happy married life. There is a need for the same vis a vis the right to life guaranteed by the Constitution. Conjugal rights are rights of the prisoners to be able to visit their family and spouse. The society is torn between the boons and the banes of providing such rights to the prisoners. Some justify it to be complementary of right to life, while others point out the difficulties in conferring such a benefit. This debate resurged again before the Punjab and Haryana High Court wherein the Court emphasized on the need to provide for such rights for the rehabilitation of the prisoners. Different international jurisdictions have their own rationale with respect to conjugal rights to prisoners. The European Convention on Human Rights has recognized conjugal rights to be a significant human right. Sweden and France are two of the most liberal countries that have provided for such rights in its entirety; but the same is not the case in the United States where the state laws on punishment are considered more sacred than the institution of marriage. Weighing the pros and cons, it can be perceived that the benefits of such rights overpower the drawbacks and providing for such rights is the need of the hour as upheld by the judiciary in a recent case decided by the Madras High Court. 

Introduction

The Prison is the oldest penal institution known to mankind. The Penal Laws of every country offer to punish individuals for commission of any act classified as a crime in that country. Every human enjoys certain rights by the virtue of his being i.e. Human rights. In India, an extension of these human rights is provided to every citizen in the form of Fundamental Rights. These fundamental rights are provided to all the citizens (certain rights to even non-citizens) including the prisoners. Justice Krishna Aiyer in the case Charles Sobraj v. The Superintendent, Central Jail, Tihar has opined that “Imprisonment does not spell farewell to fundamental rights although, by a realistic re-appraisal, Courts will refuse to recognise the full panoply of Part III enjoyed by a free citizen”. Therefore, it is that the prisoners will only be denied rights ancillary to the punishment such as right to movement etc. and are free to enjoy all the other basic rights. In the subject matter of rights of prisoners, the ‘Right to Life and Personal Liberty’ holds a paramount position.

The Judiciary expanding the ambit of ‘life’ in the case of Francis Coralie v the Administrator, Delhi has stated that life is not just the mere animal existence, it includes all the bare necessities of life such as adequate nutrition, clothing, shelter and all that is conducive for a living. In the expanse, there is a question posed to the Judiciary, whether the right to life enjoyed by prisoners includes the right to procreate, conjugal visits and artificial insemination. In G. Bhargava, President M/s. Gareeb v. State of Andhra Pradesh, the Andhra Pradesh High Court denied the provision for any such right to the prisoners on the ground that such a provision was not provided in the AP Prison Rules, 1979 and conferring such a benefit to one prisoner will be unfavourable to the others. However, two years down the line the Punjab and Haryana High Court held that the ‘Right to Procreate’ falls within the purview of right to life and personal liberty enshrined in Article 21 of the Constitution and thereby recognised the ‘right to conjugal visit’ or ‘right to procreation’ as a fragment of the ‘Right to Life’ of Prisoners.

Understanding conjugal rights

Man is a social animal. He requires a family to share his joys and sorrows with. He needs a society to coexist in. He needs a partner who would give him physical and mental support. Though housing, clothing, food are considered as the basic necessities of life, there are certain biological desires of humans that have to be fulfilled. The society in which a man lives gives validation to man having a family. Conjugal rights means the marital rights of a man. Every man who is incarcerated has a right to meet his family and spouse. It is generally known as a family reunion time where the prisoner gets to spend time with his family casually. The concept of conjugal rights to prisoners emphasises on the marital relation between the prisoner and his/her spouse. A marriage is an agreement between a man and woman to live their lives as husband and wife. The institution of marriage requires a married couple to physically and emotionally share each other’s’ life. The idea behind the concept of conjugal rights is to not let anything obstruct or hinder the family life of an inmate. It is an accepted fact that spending time with family and partner helps an inmate to feel normal psychologically. He requires love, care and affection of his family.

Since India follows the reformative theory of penology, prisons being the most accepted and common form of punishments, it is believed that visits by family can help the prisoner reform and rehabilitate. Such visits can be used by the prison officials as a tool to obtain obedience from inmates. Such rights are not very popular in India because there is no legislation governing the same. But, the judiciary has taken the broader path and highlighted the importance of providing decent living conditions to the prisoners. In the cases of Jasvir Singh v State of Punjab and Meharaj v Secretary, State of Madras, it has changed the perspective of the society that the prisoners are wild beasts who do not deserve the basic amenities necessary for living a life with dignity. The Courts have reiterated the fact time and again that just because a man is punished for a wrong that he has done, it does not mean that he ceases to be a human being.

Conjugal Rights of prisoners: An evolution through cases 

In the case of Francis Coralie Mulin vs. the Administrator, Delhi, the Court held that prisoners are entitled to the enjoyment of all fundamental rights that are available to any free person, apart from those barred by the reason of incarceration. Whether the conjugal rights to prisoners is a right available to prisoners was an issue placed before the Court. The answer to this question has evolved through the years through a few cases.

G. Bhargava, president m/s. Gareeb guide (voluntary organisation) vs. State of Andhra Pradesh

In this case, there was a Public Interest litigation (PIL) filed by the petitioner before the Andhra Pradesh High Court seeking immediate action to permit conjugal visits to the spouses of prisoner in the jails throughout the State. However, the Court responded to the PIL in the negative holding that if such conjugal rights are allowed to certain prisoners, then it would be unfavourable to the other prisoners, to whom such right is not extended. The Court further stated that the issue relating to conferring conjugal rights is a policy decision within the domain of the State and not within the power of the Court to do so.

Jasvir Singh and anr v. State of Punjab and others

In this case, the petitioners were a couple, guilty of kidnapping and murdering a sixteen year old for ransom. The couple was awarded a death sentence by the Trial Court and their further appeal to the Supreme Court was dismissed. However, the Apex Court commuted the sentence of the wife to imprisonment for life. The petitioners prayed for the enforcement of their conjugal rights and their right to procreate during incarceration. They also petitioned that the Court should direct the jail authorities to permit to them to stay together for the sake of procreation. They also requested for artificial insemination as an alternative.

The principal issue involved in this case is whether ‘right to life’ available to prisoners includes ‘right to conjugal visits’ and ‘right to procreate’. The Punjab and Haryana High Court held that the right to procreation is available to prisoners as well. This right can be traced to fall under the ambit of Article 21 of the Constitution read with the UDHR. The Court stated that only the rights ancillary to incarceration will not be available to prisoners and since there is no nexus between conjugal rights and incarceration, the prisoners are entitled to the enjoyment of such rights, subject to reasonable restrictions. The Court finally established that Article 21 that is available to prisoners includes their right to conjugal visits or artificial insemination (alternative). Also the Court held that the exercise of these rights shall be in consonance with the procedure laid down by the State.

Meharaj v State of Tamil Nadu and others

In this case, the Petitioner (wife of the convict) has filed a petition before the Madras High Court seeking grant of leave for her husband who is a life convict. The leave is sought for the purpose of assisting the petitioner in the infertility treatment to be undergone by her. The Court in this case, emphasised on the significance of family bonds and relation with spouse in the reformation of a prisoner and opined that, just because a person is a prisoner he cannot be deprived of his right to dignity in a society. The Court stated that conjugal rights are a very important aspect of a man’s right to life. The court upheld that the right to conjugal visit is within the ambit of the right to life of prisoners and therefore prisoners are entitled to the same.

Conjugal Rights: Assessment of pros and cons

In the movie “Sanju”, there is a scene that depicts the living conditions of prisoners at the Yerwada Jail. That scene shows how untidy the loo in the jail was. The movie just highlighted the fact that provision of basic living conditions to the inmates is not the priority of prison authorities. Right to life includes right to lead a dignified life.A little effort to improve the living conditions is required and providing for marital rights to the prisoners might be one step towards it. Since ages, it is believed that the love and affection of family reforms the character of a person. It helps him rehabilitate himself to coexist in the society once he is out of the prison. This helps in mitigating the violent behaviour of the prisoners in the jails. Also, it can be contested that why should the spouses of inmates lead a non- conjugal life due to a wrongful act committed by the prisoner. Another advantage of permitting conjugal rights to prisoners is that it helps in reducing non-consensual homosexual intercourse. Being confined in a room for days incites the prisoner to engage in homosexual activities, out of frustration. The advocates of conjugal rights to prisoners use this a weapon to state that this results in homosexual rape which has increased to a great extent especially in the prisons.

In a study published by the American Journal of Criminal Justice, it was observed that the four states in America that provided for conjugal rights had lower rates of sexual assault among the inmates in comparison to the other states that did not permit conjugal visitation. The issue of engagement in homosexual activities by juveniles had come into light only in the case of Sunil Batra v Delhi Administration. In the case of G. Bhargava v Secretary, State of Andhra Pradesh, a petition was filed to seek for marital rights to the inmates on the ground that it might help in the reduction of homosexual activities which would in turn help in reducing HIV-AIDS. Recently, this issue has been in limelight and the courts have agreed that allowing for such a right would help the inmates relieve sexual frustration and reduce non-consensual homosexual activities. There are other factors like incentive for quick rehabilitation and right to procreation that stand strong and promote the need for provision of conjugal rights to prisoners.

The judiciary is slowly stepping into the forum and helping in improving the conditions of the prisoners. It is upholding the principles of Article 21 at every step of its job. It is argued that, though allowing for conjugal rights upholds the right to live with dignity of the prisoners, it is difficult to implement such rights in India where the prisons are always overcrowded and there are no basic amenities available to the inmates. In the case of Meharaj v State of Tamil Nadu and ors, the probation officer rejected the plea of the petitioner because the rule book governing the suspension of sentences did not explicitly mention about the marital rights of the inmates. An argument against the conjugal rights is that if such rights are permitted, then the cells might turn into prostitution centres. Also, sexual intercourse is a private act between married couples and engaging in sexual activities in the cells would be a breach of their privacy.

In Jasvir Singh’s case, the court ordered for a Reforms Committee to be formed so as to recommend the implementation of such rights and lay down a reasonable classification as to who should be granted the conjugal rights. The prison authorities are concerned about the safety of the inmates because there are high chances of escape attempts by the inmates. As a solution to this problem, the security supervising the inmates during conjugal visitation could be tightened as seen in Meharaj’s case. Thus, some justify it to be a part of right to life under Article 21, while the others evade it on the grounds of it being immoral and impractical. It is the job of the legislature to explicitly lay down the rights available to the prisoners and the judiciary has to ensure that the rights are properly implemented to deliver proper justice to the situation.

Conjugal Rights in other jurisdictions

(A) United States

There are only 4 states in the U.S. that permit conjugal rights to prisoners- California, Connecticut, New York, and Washington. The rights are not formally established by law but the practice has been accepted by all the prisons. The inmates get to meet their spouses twice in every week. Most of the times, a lot of inmates are placed in the same room and the visitation happens in overcrowded conditions. In New York, extended family visits are allowed only to those inmates who have been in their best behaviour and whose period of sentence is only one year. For conjugal visitations, an apartment is given for the couple to stay and spend time in. The rationale behind providing for conjugal rights to prisoners is that it helps them in rehabilitation and relieving stress and frustration. Here, the laws on punishment are valued more than the institution of marriage. 

(B) Canada

The concept of conjugal visitation started in the year 1980 as a pilot project and since then it has been adopted by the country as a regular practice since it has played a significant role in rehabilitating the prisoners. The results of conferring such a right has been positive and it is important to make this process successful as it is a welfare measure for the prisoners.

(C) Europe

In Europe, the conjugal rights are dependent on the European Convention on Human Rights that assures right to marriage and privacy. Most of the European countries consider the right to marry and have children to be a scared obligation. The conjugal rights in these countries are more liberal and promising. For instance, France allows for conjugal visitation twice every week and New Zealand allows spouses to visit their inmates for an hour every week. Sweden is considered to be the most liberal country providing for visitation rights to spouses on one Sunday every month without any supervision. It also allows for home leaves and private visits.

India has taken a lead from the laws of such countries where the rights of citizens are given the highest priority. Since India is an active signatory to most of the human rights treaties, it is desired that it will soon provide for such rights to the prisoners and thus uphold the basic constitutional principles.

Conclusion

In India, we have adopted a penal system, reformatory in nature wherein the system incorporates practices that are conducive to reformation and recognizes rights which purport a decent standard of living to the prisoners. Psychologists say that contact with family and spouse is an important aspect of a man’s life and helps him feel stress-relieved and happy. The institution of family is deeply rooted in the Indian sentiment. One of the most fundamental arguments raised by the exponents in support is that through providing for conjugal rights, the family ties do not fade away and remain strong. To uphold a fair system of incarceration, it is important that conjugal rights to prisoners are provided because it helps in reformation and rehabilitation of prisoners which is in tandem with the nature of India’s penal code.

The Judiciary has played an exemplary role in recognizing the conjugal rights of prisoners. The landmark judgment of Jasvir Singh v State of Punjab has introduced a new dimension of ‘right to procreate’ and ‘right to conjugal visits’ to the right to life. The judgment has taken a step forward towards recognizing the rights of prisoners. Taking a lead from the rights of prisoners in the international jurisdictions, the Indian Courts are gradually moving towards transforming the living conditions of the prisoners. 

The current legal framework governing the prisoners does not have any provision for conferring conjugal rights to prisoner and thus such a drawback needs to be immediately addressed. Assessing the boons and banes of vesting conjugal rights to prisoners, we conclude that such rights are a desideratum.

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 Conjugal Rights to prisoners: A desideratum appeared first on iPleaders.

This article is written by Venkata Saketh Roy Vydyula.

Abstract

People don’t need to go to the nearest retail store anymore, they can just order groceries online or through an App, they don’t need to wait in the lines in a popular fine dining restaurant, they can just order food home through an App, they don’t need to feel and touch the phone before buying, they can just place an order online. Things which used to require physical presence and work do not need such efforts anymore, they can be done “virtually”. Now, imagine the same concept imbedded into the system of cash transactions, trading and banking. Such realization of the concept into reality is what made the “Blockchain Technology” come to life. 

In 2008, after the financial meltdown, Satoshi Nakamoto, an inventor and trader propounded the idea of a peer-to-peer channel for the transactions of “Bitcoins” in his paper publications. This idea took shape and structure and came to be known as one of the most efficient, secure and uncorruptible software designs found by mankind. It is a “Distributed ledger” software which means that any person or any device connected to the specific network can account for the transactions that take place. Initially this technology was thought to be used only for the trading of bitcoins and other virtual currency which rose to fame for a point. However, the recent applications of blockchain technology have been tremendously increasing. Nonetheless, there are a lot of limitations and hurdles to realize that dream. Therefore, this paper will highlight the different applications, the limitations of blockchain other than trading in virtual currency. This paper will aim to throw light on the working and the regulations in place and on how it is moulding itself to be in harmony with the banking services and law.

Introduction

“Blockchain is an attempt to rewrite the economic grid in the old order of things” – Don Tapscott.

The death of middle-aged man impacted his patients in the hospital, his wife and his children. Their present was being reshaped because he was the one who knew the problems of the patients and was the only bread earner who was running the family. The fall of the Government impacted the members, the economy and the people. Their future was in question because a nation without a ‘Centralised Administrative’ structure is directionless. In the same way, an economy without a central bank regulating the money would be an unhealthy and untrustworthy economy. But, what if the very foundations of such economies are shaken when the most trusted ‘third party’ banking systems of the world fail in protecting the money of the people and bring them to the streets on a cold winter morning? This hypothetical situation soon turned into reality when the 2008 financial meltdown occurred in the United States of America whose ripples travelled all over the world and affected millions of people and costed the country a whopping estimate of 12 trillion dollars. Maybe a lack of trust in the system urged a person named Satoshi Nakamoto whose identity is still unknown to publish a whitepaper titled ‘Bitcoin: A Peer-to-Peer Electronic Cash System’ through which the technology of blockchain made its entrance into the public platform. “While the system works well enough for most transactions, it still suffers from the inherent weaknesses of the trust-based model”.

It is a given fact that middlemen have started to play a major role in our lives as they handle the logistics that are required for a work to be done. However, they cannot be trusted. Overcharging in the name of commissions is an act detrimental to the purpose of transferring funds to the people in need. 

Blockchain came to light because of the menace the middlemen have created. It is needless to say that the history of the Blockchain technology cannot be traced without making references to Bitcoin. Bitcoin is one of the first and famous cryptocurrency that exists today. Satoshi Nakamoto applied this revolutionary technology to cash and payments systems so that it serves as an incentive to those on the blockchain network and that incentive was the transfer of Bitcoins to those who add blocks on the networks. Initially, Bitcoin and Blockchain technology were thought to be one and the same. However, it was understood that blockchain was just an underlying technology with the help of which the bitcoin and other cryptocurrencies are run and it is now established that blockchain and bitcoins are separate from each other. A blockchain can exist independently with its wide range of applications which will be discussed in the due course of this paper.

Blockchain and its functioning

“Blockchain is to Bitcoin, what the internet is to email. A big electronic system, on top of which you can build applications. Currency is just one,”– Sally Davies, FT Technology reporter.

What is Blockchain?

Blockchain is a globally distributed ledger system which decentralizes the process of recording and validating transactions. The current practice is as such where there exists a trusted third party or a centralized agency which authenticates or validates, records and preserves every transaction that takes place. It makes sure that every transaction that takes place is passed through this central agency so that the record can be maintained. Such an institution exists on the foundation of trust which is subjective in nature and can accede to an unavoidable breach of trust or occurrence of fraud. Therefore, to avoid such a problem, blockchain technology is based on peer-to-peer electronic payment platform which is further based on cryptographic proof instead of trust, which allows two or more parties to perform a transaction directly with each other without involving any third party or a centralized agency. 

Fig. 1.0 – Centralised Mechanism             Figure 1.1 – Distributed Ledger

Figure 1.0 is the representation of the traditional method where centre third party is used to manage the chain of the parties 1,2,3 & 4 at heavy charges or commissions in some cases. Whereas, Figure 1.1 depicts the distributed ledger system of a Peer-to-Peer network where all the parties to the transaction have access to the transaction and have an obligation to validate the transaction on a peer-to-peer basis which eliminates the need for a central third party to oversee the transaction at heavy costs.

Problem of Double Spending

The blockchain was invented to make the information it holds immutable, i.e. the entries in a blockchain cannot be altered or changed whereas they can only be added as a new entry which cancels off the old one. As the name suggests a blockchain is a chain of blocks that represent a transaction or hold information and are linked together in a chronological order permanently. Every time a block gets completed, a new block is generated and added to the chain and awaits verification from each ‘node’(participants or members of that network of blockchain) regarding the authenticity of that block, if verified by all the nodes, it will be stated that the nodes have come to a ‘consensus’. In a monetary blockchain for example in the Bitcoin Blockchain, every block of the chain contains information of the sender of the bitcoin, the information of the receiver and the amount received by him. It also contains past transactions right from the birth of the chain i.e. the Genesis Block to the recently created block. 

Security:  Hashing and Proof of work

There exists a concept of asymmetric cryptography which uses cryptographic keys in the blockchain which provide the miner or a node with a unique identity. A Private Key produces a digital signature which is essential to authorise actions that are performed by a miner or a node or are performed on behalf of a miner or a node. On the other hand, a Public Key is like a username through which the other member on the network identifies the miner or a node.  In general, a block contains the information which is to be stored/recorded, a hash of that block and a hash of the previous block. Hashing is a process where a computerized mathematical hashing algorithm is applied to an input data of bits finite or infinite to generate a finite output data of bits known as the hash which is a distinctive identification of a block. A hash is calculated based on the sequence of the contents of the block, this hash participates in the creation of the hash of the succeeding block along with its contents and this process goes on establishing a chain of blocks linked with the hash. A hash is like a digital fingerprint imprinted upon a block to secure it and verify its authenticity. A hash protects the block from any unintended modification of its contents by a node. Changing the contents of block leads to the change in the hash of the particular block which invalidates the succeeding blocks and their hashes. 

Figure 2.0

The figure 2.0 represents the blocks and the hashing System. The genesis Block A contains the hash “QWER2” and the second block B contains its own hash “TYUI3” and the hash of the Block A “QWER2” and so on. Now, if the contents of the block A such as the transaction details or any other information stored are modified, the hash of the block A changes which results in the change of the hash of block B which in turn affects block C and the chain reaction spreads like a wildfire invalidating all the blocks on the chain. To successfully modify/alter/hack/tamper with the contents of a block, the node will have to possess unfathomable computing power and will be required to hack all the blocks in a chain of the target network, regenerate the proof of work of all the blocks and take over 51% of the peer group of that network (Also known as the 51% attack) which highly unlikely and next to impossible. This is the reason why it is so secure and almost impossible to hack the data of the blockchain.

Proof of Work Protocol: A proof of work protocol is a method to establish to the server that a miner or a node has put in significant amount of time of computational work which is in general used to solve complex puzzles to validate itself. This mechanism is similar to the CAPTCHA protocol where humans have to solve a numeric or a word puzzle to prove that they are humans and not robots which are relatively easy. However, the underlying principle is the same, i.e. to identify hackers or bots that operate in the network. There is a certain time frame for each kind of chain which the miner should adhere to in establishing the proof of work after which he will be rewarded, for example, in the Bitcoin Blockchain it is 10 minutes for proving and after such proof he will be rewarded with Bitcoins. The proof is difficult to establish but is easily validated. However, in recent times, the proof of work protocol is being replaced by the proof of stake protocol due to the proof of work protocol’s demand for energy and high computing power only for solving complex puzzles. Proof of Stake protocol establishes that the higher the number of bitcoins a miner holds, higher is the mining power of that miner. This makes sure that the miners have a continuous stake in the blockchain. 

Smart contracts

A contract as we know it is a set of promises agreed upon, mutually, by the parties to such contracts. The concept of a contract was digitalized and then began the advent of “Smart Contracts”. Smart Contracts is a term coined by a cryptographer named Nick Szabo in the 1990s. The process of Digitalization of contracts involved recognising that a computer could run algorithms on the same principles and then converting such a contract into a code. A code will execute itself when the conditions of the contracts are met, step by step. Thus, arriving at the name of “Smart Contracts”.

However, the required technology for processing the data did not exist back then which led the idea of a smart contract to lay dormant for a long time until recently, when the functioning of smart contracts and their uses are being debated upon. Let’s put the working of a smart contract based on the blockchain technology into a practical scenario where Mr. Francis is unsure of receiving payment for his work from you as he has certain trust issues. What Mr. Francis would do is, he would have you pay the money to the smart contract on a blockchain on a condition that the payment would be released only after the work is completed by Mr. Francis. Therefore, as soon as it is confirmed by Mr. Francis that the work is done, the payment would be automatically released by the smart contract. This is beneficial to both the parties of the contract as they are given a guarantee of getting the work done and the guarantee of payment. A smart contract has innumerable uses viz. in the insurance agency, in the manufacturing industry to replace supply chain management, by the government to manage land records and other records of the population and by the Internet of Things. The use of smart contracts by internet of things is a little controversial as it raises concerns regarding the misuse of the smart contracts by the appliances connected to the internet, it is granting the power to think and act to an artificial entity. 

In the blockchain world, smart contracts are defined as “a computer protocol—an algorithm—that can self-execute, self-enforce, self-verify and self-constrain the performance of its instructions”. One of the main platforms for smart contracts is the Ethereum database. The bitcoin blockchain is form of a smart contract where the transfer for monetary assets takes place. However, Ethereum expands the scope of a smart contract by, allowing the contract to govern the changes that take place to the conditions of the contract over a period of time, giving them autonomous control over the execution of the contract without the need for monitoring by the parties to the contract.

The essentials of a contract include offer, acceptance, intention to enter into legal relations and considerations. These essentials are very well able to fit themselves in the domain of smart contracts. However, the question arises regarding the validity of the application of traditional contract laws to the smart contracts. Is it viable or not? 

When recourse to the global standards of application and regulation of smart contracts is made, it is observed that recently, in India, the State Bank of India launched the “BankChain” which was a platform made by the consortium of 25 banks (approx.) for the execution and sharing of “E- Know Your Client” (E-KYC) for smoother and leak proof transactions. 

In India, the Section 5 of the Information Technology Act permits the authentication of records by electronic signatures, however, the government, imposed restrictions on how that electronic signature is obtained by stating that only the government certified offices can obtain the signature and not anyone else. This move runs in contrast to the provisions of the Indian Evidence Act which establishes that an electronic agreement would only be valid if it is authenticated by a digital signature of the person. Furthermore, it also establishes that the court will not doubt the validity of the electronic record, but will, however doubt the sender of the record. Therefore, this means that only the government can obtain signatures and execute the smart contract. This restricts the freedom to carry on proceedings which involve parties other than the government. If the idea of legal fiction comes into play, the Ethereum data base can be used as an agent as in under the term “agent” in the contract act which allows an agent to make legally binding contracts on behalf of the principal. Legal fiction is essential to categorize a non-living, electronic database into the term agent under an act as the contract act only recognizes people as agents.

The concept of cryptocurrencies and their trade was negated by the Indian Finance Minister in one of his speeches, nevertheless, blockchain technology was advocated for and its future uses were debated upon. To add to this, the state of Andhra Pradesh in India is the first state to use and employ blockchain technology to maintain transport related and land related records to avoid tampering and loss of records which is a massive obstacle for any government.  

In the United States of America, the state of Arizona was the first one to legally recognize the technology of blockchain followed by the state of Tennessee which chose to amend its statute to comprise of the words “distributed ledger and “smart contracts” as follows:

“(1) “Distributed ledger technology” means any distributed ledger protocol and supporting infrastructure, including blockchain, that uses a distributed, decentralized, shared, and replicated ledger, whether it be public or private, permissioned or permission less, and which may include the use of electronic currencies or electronic tokens as a medium of electronic exchange; and

(2) “Smart contract” means an event-driven computer program, that executes on an electronic, distributed, decentralized, shared, and replicated ledger that is used to automate transactions, including, but not limited to, transactions that:

(A) Take custody over and instruct transfer of assets on that ledger;

(B) Create and distribute electronic assets;

(C) Synchronize information; or

(D) Manage identity and user access to software applications.”

Industries which can and are already contemplating the Use of Smart Contracts:

1.   Supply Chain Management
2.   Automobile
3.   Real-Estate
4.   Government: Healthcare

Blockchain, Reshaping the Banking Sector

“Blockchain – the shared ledger technology which allows any participant in a business network to see the system of record – will have a transformative impact on a number of industries, including financial services, in the future.” 

• By John McLean, CTO, VP Global Blockchain Team, IBM Systems

The banking industry at large and especially the Indian banking sector have been facing numerous issues in recent times. Time management, rising costs of operations, fraud, keeping of large amount of data, server crashes are few of the problems that probe the banking sector all over the world. The existing model of the banking sector is clearly not an answer to the problem as it does not bring in any positive change to the status quo. Therefore, the banking sector of the world is contemplating the deployment of blockchain into the banking arena. The integration of blockchain with banking is said to bring out revolutionary changes in the functioning of banking. “This replicated, shared ledger will provide consensus, provenance, immutability and finality around the transfer of assets within business networks– reducing costs, complexity and time, underpinning shared, trusted processes, enabling trusted recordkeeping and improving discoverability”.

A Spanish bank, Santander, concluded in its research that an estimated $20 billion a year will be saved by the banking industry if the blockchain technology is employed which will attract a lot more companies and start-ups to invest in the new banks owing to the reduced costs. The Linux Foundation proposed an open ledger project under an open governance model titled as “HyperLedger” which will develop an open source framework for the distributed ledger to allow the developers to focus on building an efficient platform and hardware system to support the transactions of the banking industry and the capital market. However, there exist opinions in contrast to such thoughts. Beth Shah, head of Business Development  at Digital Asset Holdings, a blockchain start-up, expressed his opinion in John Mclean’s Whitepaper published in association with IBM and stated that “much as the idea of an intermediary free financial market might appeal to purists, in reality it is likely that regulators – and customers – will prefer the idea of orderly markets managed by one or a group of trusted parties, at least for the foreseeable future.” To weigh over the negatives and the positives of the integration of blockchain and banking, it is required to take into consideration the potential uses of blockchain  for the banking sector which are as follows: 

1. Cost Reduction: Everyone talks about “reduction of costs” when they are asked how blockchain will benefit the banking sector but not many know what exactly the costs are.  When the blockchain is applied to real time transactions, it ensures that transaction settlement information is processed simultaneously with the payment which saves time and employment of extra resources as is the case in the traditional scenario. International payments known as cross border payments when integrated with blockchain technology help the consumers and the banking institutions take an advantage of the Forex volatility. As the transactions take place instantaneously, the consumers need not worry about being the victim to the volatile forex rates that keep on changing over the duration of a single payment.  Infrastructure expenditure such as databases maintenance and customer transaction records could go down a notch when the blockchain is applied which garners more participation through investments.

2. Customer loyalty programs: One of the integral parts of the banking sector is for the bank to take an action to retain its customers and in the process of doing so, the banks throw off schemes such as credit points, redeemable points based on transactions, privilege cards and other benefits at the customers to lure the new customers and retain the existing ones. These are a part of the customer loyalty programme. The average redemption rate by the customers stands at almost 80%. This shows us how effective the offers made by the banks are. The problem of inconvenience plagues these programmes. The lack of interoperability of the reward points by one consumer to another, lack of standardization of redemption of benefits, delayed gratification and the over-valuation of reward points are few of the major problems which the blockchain might address.

The inclusion of blockchain will allow the clients of a bank to transfer the reward points to one another when required which is not possible in the present. A client might get stuck with odd number of reward points with which he cannot avail any service. If there was an option of peer-to-peer transfer like how the blockchain would offer, family members or friends would help each other out through the transfers. This would further address the problem of over-valuation as the usage by the clients on the blockchain would determine the value of the reward points than having a centralised agency determine the value and feed off of the transactions of the clients. Blockchain can facilitate the involvement of multiple parties at a time which helps in crediting points faster which is preferred by the client. In the traditional system, the redemption of credit points take time which fades down the interest of the consumer. 

3. Trade Finance: is an area where third parties are introduced into the transactions to reduce the amount of risk through lending, issuance of letters of credit, bills of lading, export credit and insurance. Issuance of letters of credit is a painstaking process involving heavy documentation which takes up a lot of time, space and resources. Blockchain can ease the burden of the banks by automating the information so provided which is both beneficial for the banks and the corporates who would always prefer automation than physical paper work. Payment and repayment can be handled by the smart contracts over the blockchain which will rid the involvement of people in the equation.

4. Payments: the 2008 financial market crash is still fresh in the minds of those who were affected by it. After such a fall of the economy, a safer and a modern method of payments was demanded. Blockchain is believed to be that modern method which is said to revolutionize the mode of payments. The traditional system of banking involves the transfer of money to another person/entity through a centralized 3rd party such as a bank. Blockchain will remove the need for a 3rd party in the equation and reduce the need for hefty amounts spent on commissions and fees. This would ultimately allow the users to possess a faster and readily available service which can be accessed by the users at all times i.e. 24 hours a day, even when the banks are off duty. This adds a significant advantage to those who depend on cross border payments and international transactions. They will have no need to wait for several days for the transaction to process. All they will have to do is, be connected to the blockchain ledger network, much like the internet.  Ripple, a real-time gross settlement system, currency exchange and remittance network published a study which established that the use of their blockchain technology and services by the banking industry could reduce the operation costs for international transactions by a staggering 33%

5. Syndicated bank facilities: are those facilities where a group of financial institutions come together and form a syndicate to procure a huge amount of money and lend it to a single borrower. Multi-National companies and conglomerates require huge amounts of loans to finance their multi-faceted projects. This process is cumbersome for both the borrowers and the lenders. It is paper and labour intensive and the intermediaries are appointed at a high rate of fees and commissions. Since there is a participation of many institutions, there is a lack of trust between them and the borrowers as the background check of the borrower is done by one bank which initiates this syndicate. When blockchain is introduced in this scenario, it helps in a faster formation of a syndicate because smart contracts come to the rescue for the collection of information for the KYC and the sharing of details of KYC with the other banks of the syndicate. The process is almost instant in comparison with the manual work involved in doing a background check of the borrower. Doing so, establishes a trust between all the banks of the syndicate and between the syndicate and the borrower which will disable the requirement of an intermediary who is appointed at high rates of fees and commission. The process is made faster by the digitalization of all the documents involved which remove the requirement of a lot of paperwork. 

In an ideal society, these potential uses of blockchain are the best incentives the banking sector can get to increase the investment into this technology. However, like every coin, even this has another side. The application of this technology leads to few questions that are left unanswered. For example, the issue of privacy stands tall in front of the technology. This open ledger system might not be trusted by the users in fear of dilution of one’s privacy as the customer data is easily accessible. Furthermore, the regulation and laws of the blockchain technology is not uniform and standard. There are no central agencies that standardise the functioning of blockchain. This is an irony that a system such as blockchain which was invented to remove the need of a centralised agency is doubted upon for not having a regulatory central party. It is maybe because of force of habit that individuals and institutions are not able conceptualize a payment system without a regulatory body in contrast with the traditional banking system. However, it is clear that the blockchain technology can be put to use to carry forward important functions in the banking industry. Implementation of the technology would surely be a breakthrough in the banking industry.

Legal status and regulation of blockchain technologies

Implementing laws and regulatory methods onto the blockchain system is a hard process. Law needs to be dynamic and needs to move along the technological advancements that take place. It has to validate, invalidate, ban and vitiate certain actions which work as a limitation under which a technology can shape itself. However, when the actions are produced from something which is in a not so well-known domain, it gets hard for the law to place itself upon it. Such is the case with blockchain. People around the world know what it is and how it works but are unaware of its potential uses which discourages them to venture out into the legal arena hovering over the blockchain technology. However, in the world, there are countries that have banned the use of bitcoin and countries that propagate bitcoin to be a legal tender. If bitcoins are accepted, blockchain is what follows it and it does not need a special mention. Furthermore, any law or regulation made in regard with bitcoin or other cryptocurrencies and their status has a direct influence on the blockchain technology too. There are those countries that ban bitcoin but are looking into the underlying technology of cryptocurrencies which is blockchain.   

But the questions that arise when blockchain is applied to an existing form of work are viz. What is it which governs or regulates the functioning of a blockchain? What are the breaches that take place in this technology? Who is liable to whom when there is a breach?  A simple answer to these questions by a lot of governments are not laws but include the setting up of a regulatory body. A body that will keep in check the use of blockchain. Australia is one of those countries that successfully tackles the regulation process as the Australian governments grants a licence known as the Australian Financial Services Licence (AFSL) for a business entity to be trading. However, trying to grant this license for blockchain based communities and for the use of blockchain can be quite challenging as there are no finite uses of blockchain. When there are no limitations for the use of a commodity, applying the law to such a use gets difficult. Therefore, The Australian Securities and Investments Commission (AISC) has developed an assessment tool for a business seeking to employ blockchain. The assessment tools “are designed to help you (the entity applying for a license) and ASIC to assess whether the service meets appropriate technology and risk management standards”.

The six questions that are used by the assessment tool are as follows:

• How will the DLT be used?
• What DLT platform is being used?
• How is the DLT using data?
• How is the DLT run?
• How does the DLT work under the law? 

When the Blockchain Technology is used for operating on cross border transactions, certain legal issues are bound to arise. As per the AISC website, the main issues that might arise are in regard with location of participants, management and employment of staff, the existence of a legal entity and infrastructure and the location where the contracts have been made. 

• How does the DLT affect others?

These questions help in the formation of certain regulations for the services that use and employ the blockchain technology in Australia. Furthermore, the country of Singapore treats tokens from blockchain as a personal property rather than a currency accepted as legal tender. The tokens are also considered as shares, debentures or units if such tokens are given the power to represent a substantial part of the company. Personal property means that the tokens so purchased will be equated to apples, oranges, shoes or any such personal properties that can be owned and traded with. Essentially leading up to a barter system. The Securities and Futures Act regulates all the capital product markets that are categorized by the Monetary Authority of Singapore when the tokens from blockchain are bartered for any dividends, securities and future contracts or arrangement for having foreign trade.

An entity involving itself in the use and employment of blockchain shall obtain a Capital Market Services License under the Part IV of the Securities and Futures Act of Singapore. Therefore, all the laws that apply to regular currency apply to the tokens that are traded over the blockchain except for backing them by the value of a legal tender.

The line of questioning in Australia and the compartmentalization done by Singapore are just few of the regulatory mechanisms that are put in force by the respective authorities. There are many more regulatory norms introduced by countries like Japan which are so complex that it becomes a herculean task to understand them without prior knowledge of the administrative ideology towards cryptocurrency and blockchain. 

Conclusion

Blockchain is a vast ocean of limitless possibilities, this fact has been established. Its flexible usage and the amiability attract users to employ this technology to things the human minds are not yet aware of. It is practical to believe that no technology in the world is completely secure as such a belief is what makes the controllers of such technology work harder to keep making it secure from all the directions. Blockchain is the revolutionary tech that has clearly re-shaped the digital sphere. It has cemented the distributed ledger system and has paved way to the formation of smart contracts that are now a topic of discussion all over the world. There are even comments by executives that the aim of achieving a middleman-less transaction arena might be reached by the employment of blockchain and the first middleman that might be put out of job would be the lawyers. However, such a prediction is clearly farfetched as lawyers and any other labour that is thought to be replaced is initially, which is for a long time, required to induce the very nature of work they perform into the blockchain for it to completely takeover.

Blockchain has undoubtedly restructured the banking sector and has been an aid to its working by assisting trade finance and customer loyalty programmes and many such functions. The paper has briefly analysed the working of blockchain and the benefits of the introduction of blockchain technology into our daily lives, nevertheless, in the near future one can get up in the morning and read out a headline that the mobile networking agency has shifted its operational databases to blockchain technology. The conclusion lies in the reaction of the reader. Is the reader happy or is the reader terrified? If he is happy, his thought process is in plain sight, if he is terrified, he knows the possible loopholes. The thing with technology is that it is only “Secure” or “Unbreachable” until the event takes place, drawing the analogy of the unsinkable Titanic at this moment is quite apt, we just don’t know and cannot be sure about what we know. These are not accusations out of disbelief but are doubts based on experiences and these doubts are the motives for blockchain developers to secure the system even further.

Therefore, it is important to assert that, blockchain is, for now, the safest form of performing any kind of transactions. Will it continue to be so secure and not fall prey to the futuristic hackers? That will only be answered when it stands the test of time.

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 Block Chain Technology and its impact on matters of public interest  appeared first on iPleaders.

This article is written by Yavanika Shah, Team LawSikho.

“Hi Emma, it’s the year 2020. Are you still enjoying your nap?” 

This was in 2003 that the 6 protagonists of the sitcom F.R.I.E.N.D.S were shooting a video for baby Emma’s birthday in 2020. 

None of us (including the actors themselves) could have perceived that 2020 would come so soon, did we?

For the longest time, since the turn of the century to the 2000s, 2020 has been romanticized as the year of the global turn. 

A revolution. A game-changer. Gen Z owning up the world while the Baby boomers go incognito.

2020 is going to be a big year! There’s the Mars 2020 rover mission, Dubai Expo 2020, and internet users crossing 5 billion. The globalization is reaching to an extent where the west and east are not only going to be connected by mere technological advancements but also a high-speed rail that promises to connect Beijing to London!

Technology has already transformed the world. Even today’s India looks nothing like what we could imagine in the 90s, all thanks to technology.

Everything from entertainment to politics, what we eat to how we sleep or find love, everything is now being fundamentally altered by technology. Of course, it would appear that what has already happened will be dwarfed by the changes that are about to come.

What are the technologies that will change the world in the decade to come?

Blockchain? Nanotechnology? AI and machine learning? Industrial robots? Military robots? 3D printing? Drones? It is definitely hard to predict exactly what will be the most impactful technology and how that would shape the world going forward. 

However, good news for lawyers is that we know for certain that how technology goes on to shape the world is almost certainly going to be influenced and impacted by technology law.

Even ten years back, technology law was a small niche, and no Indian law firm had independent technology teams. At best, technology was bundled with telecom and media to form a TMT team. Since the Information Technology Act was passed in 2000, it was hardly a niche that a lawyer could make a career in. 

Since then, work around technology has exploded over the years. Technology contract, fintech regulation, cyber offences, data privacy, IP issues related to the internet has emerged as the most important areas of work for technology lawyers. 

Other areas like platform governance, content regulation, technology policy and online reputation management have shown a great deal of promise but are still only upcoming fields at best. 

However, the sheer volume of technology law work, as it stands and what it is about to become, is awe inspiring and hold great promise for young lawyers and law firms. 

A number of major-major evolutions are lined up for this decade. What legal changes are they going to bring with them? What opportunities for lawyers will arise? Have you take out some time to think about what is in store for technology law, because I dare say it is likely to turn out to be the legal opportunity of the decade.

If the decade that just went by was marked by the opportunities that came with startups and venture capital investment, the next decade probably represents the opportunities that will come with the emergence of world changing technologies. 

You can expect that technology lawyers will be an envied species by the time we are done with this decade. 

But what do they do?

E-commerce, online aggregators, digital payments, data privacy, cross-border money transfer or trade, cryptocurrency, algorithmic trading, the export of tech services, regulation of blockchain, drone regulations, regulations of automated vehicles and other robots, cybersecurity and legal issues arising out of many such key technological developments.

And many things we find hard to imagine today.

Agro tech, space tech, nanotechnology, electric vehicles and batteries – they all bring massive governance challenges with them.

For instance, how long will the batteries of EVs last? How will these extremely toxic batteries be disposed off? The batteries in use today alone can cause a global catastrophe, how much risk will be created when the entire world begins to use EVs instead of fossil fuel?

Who would write the rules, help clients to implement them and then help the government to enforce them? Technology lawyers? You bet. 

Tech law is not only very interesting, but it is also constantly evolving, keeping lawyers and businessmen on their toes. It is a very intellectually satisfying discipline to develop yourself in, and it frequently involves the amalgamation of other disciplines such as IP law, constitutional law, criminal law, securities law, and many other laws. 

As a technology lawyer, there are so many new avenues that will open up in these coming years. 

What could be new exciting areas of work that would keep technology lawyers busy? Do share your thoughts with us. But here are our best guesses:

#1 Laws to regulate weaponization of robots

Is the future really here? The most advanced robots are all made and deployed by defence forces! 

There is a huge market for military robots to cater to the growing military expenditure on UAVs and UGVs being implemented by defence forces of various countries. The market is anticipated at a growth of more than 20% between the period of 2018-2023.

Armies are building the entire robot and drone divisions. Focus of defence spending in the last decade shifted in advanced military powers from weapons of mass destruction to weaponised automated systems – ranging from Unmanned Aerial Vehicles (UAVs), submarine and ground based reconnaissance vehicles. Increasingly, many of these machineries are being developed with inbuilt AI capacity so they can survive or continue mission in environments where remote control fails. 

This has made it imperative to create international understanding and laws and regulations that would put reasonable restrictions on such robot armies, especially given all the sci-fi doomsday movies that predict the end of mankind in the hands of invincible AI driven robot armies. 

Further, as manufacturing of robots become commonplace, it would be necessary to impose restriction on software developers and manufacturers that prevent weaponization of robots, even by private players, just as there are regulations on dangerous explosives and weapon grade or narcotics potential chemicals. 

#2 Governance of decentralised automated organizations (DAO) and cryptocurrency

A decentralized autonomous organization (DAO), a decentralized autonomous corporation (DAC), or decentralized autonomous nonprofit organization (DANO) is an organization represented by rules encoded as a computer program that is transparent, controlled by shareholders and not influenced by a central government. A DAO’s financial transaction record and program rules are maintained on a blockchain. 

A DAO removes the need for human intermediaries and all the uncertainties that come with the same. It is entirely possible to run stock exchanges, investment funds, escrow arrangements, share depositories, digital wallets and many other traditional organizations using sophisticated DAOs. 

A well-known example, intended for venture capital funding, was The DAO, which launched with $150 million in crowdfunding in June 2016, and was immediately hacked and drained of US$50 million in cryptocurrency. This hack could be reversed in the following weeks, and the money restored, via a hard fork of the Ethereum blockchain. 

Given the massive potential of DAOs, it is certain that it will be widely adopted in the decade to come, and governance rules have to be created by governments and regulators all around the world. Corporate governance is likely to be massively impacted by emergence of DAOs. 

Since DAOs function on Blockchain, it is inevitable that there will be cryptocurrencies or digital tokens have to be legalised and regulated as well, since these are the units which enable transactions on blockchain.

#3 Regulations for 3D Printing

3D Printing will impact many different branches of law, from IP law to criminal law. 3D printing may be used to violate copyright or patents, but it can also be used to create dangerous weapons and contraband items.

The access to 3D printer to private individuals has raised concerns about the printing of those products which may be illegal to produce, and may lead to a massive influx of counterfeit goods. 

What if someone carries a 3D printer into an aircraft and print a gun or a knife or some other rudimentary weapon from basic ingredients that didn’t appear threatening to start with?

3D printing is all set to change life the way we know it and law has to deal with the same.

There has to be regulations related to 3D printing for this very critical technology that is all set to completely disrupt manufacturing sector.

#4 Regulation of fake news and social media influence on democratic processes

Fake news and technological interventions like Cambridge Analytica has massively spooked populations around major democracies around the world. Technological manipulation of elections and popular opinion has been increasing and laws relating to these things look imminent, although many free speech advocates are resisting them. Closer to home in India social media has been used to virally spread false news, fake videos, incite riots and coordinated attacks on vulnerable groups. 

The US Congress and senate held very lengthy hearings of social media company executives and demand for effective regulation of tools that can be used for mass manipulation has been increasing in pitch and volume. 

It can be expected that in the coming decade this will emerge as a major area of work for lawyers and policy experts. 

#5 Laws governing synthetic food and meat

Lab-made meat is already available in the market, and while wide-spread commercialization is likely to take a few more years, there is massive demand for the same given the push towards ethical treatment of animals as well as meat consumption related greenhouse effect. After all, a lot more greenhouse gas is produced by cattle compared to cars all over the world!

Synthetic food is another major area of technology that is likely to see a boom. However, with new technology comes new concerns. Governments will have to enact new laws to regulate these industries and especially in order to ensure food safety as older laws for regulation of food would become ineffective in light of the emergence of new kind of synthetic food.

#6 Laws regulating and promoting vertical farming

Vertical farming has to replace traditional farming techniques due to the various advantages it has over traditional farming methods and because it takes far less space. To avoid deforestation in order to meet human food requirements as well as for effective management of water and other resources, vertical farming will become the order of the day.

Vertical farming is going to be a breakthrough in agriculture where vegetables, fruits and flowers can be grown in high rise towers that provide a temperature-controlled environment. In this mode of farming, particular floors can be used to grow a specific kind of vegetable or fruits, something which is not possible in traditional farming on a given land.

However, given that farmers are slow to adopt and this new food revolution may be led by agrotech companies, we can expect a whole new set of laws and rules have to be created for regulation of vertical farming as well as for incentivize its adoption just as clean energy had to be incentivized by governments.

Just in the way solar and wind electricity farms have increased work for projects, policy and tech lawyers, we can expect a lot of work from vertical farming in the not so distant future.

#7 Laws that promote technological preservation of water and natural resources

Preservation of water and other natural resources like soil, forests, wildlife and air are emerging as biggest concerns of humanity. Preservation is likely to become political as well as policy making priority in years to come. Already many countries are waking up to the reality given catastrophes like Cape Town running out of water and Australian bushfire that has engulfed the whole country forcing massive migration of human beings.

To avoid such catastrophes in the future, governments will be forced to create tough laws that mandate and incentive protection of natural resources, especially water.

For instance, leakage of water during distribution is a massive concern that can be solved using technology. Similarly, technology driven monitoring of air quality and wildlife protection is likely to see major investments by government as well as private parties. 

Regulations around these industries are imminent and could be very exciting and important areas to work in.

#8 Evolution of commercial drone regulations 

• Is there any kind of registration you need to acquire for flying drones?

• Which establishment do you seek approvals for flying drones?

• Do you need licenses to manufacture, import or export drones?

In the last few years, consumer and business interest has scaled with demand for aerial photography and a wide range of commercial applications in India’s B2B sector. 

Since 2018, the country’s first Civil Aviation Requirements (CAR) for drones has been in place by the standards set by the  Directorate General of Civil Aviation. Which means, there are laws relating to the application, eligibility & various requirements that need to be complied with if you want to fly your drone.

Click Above

Drone laws are, so to say, a niche field that not a lot of people even know exists! Which is all the reason for the existence of humongous opportunities and be an expert in it. A tech lawyer who knows the A-Zs of the drone laws and how to register these commercial drones can surely expect increasing volume of work in years to come.

However, commercial application of drones is at best at a nascent stage. There is likely to be massive implementation of drones in many sectors such as logistics, defence, oil & gas, and even transportation. Such wide application will require an entire new set of laws and regulations. And that is where much of the opportunity for tech lawyers will emerge from.

#9 Laws governing internet of things 

The Internet of Things is the concept of connecting a device to the Internet and to other connected devices. The IoT is a giant network of connected things and people – all of which collect and share data about the way they are used and about the environment around them.

Cisco predicts 50 billion devices to be wirelessly connected via a network of sensors to the internet by 2020.

Naturally, for interoperability and many legal issues that would arise from the same, a new set of regulations that do not exist today will have to be crafted.  

There are also concerns over how these large amounts of data can be used. Laws relating to the strengthening security of connected products, pre-testing of the security measures and data ownership laws, as well as laws related to new genre of crimes that would arise in light of IoT will have to be drafted. 

Massive interconnectivity also creates massive systemic risk, because a single act of sabotage could bring an entire smart city to its knees!

#10 Extensive laws regulating plastic and e-waste management

The e-waste volume in India has been growing astoundingly. 

Despite the E-waste Management Rules being in place since 2016 not much has been implemented in furtherance of these rules.

However, the concerns related to e-waste is becoming hard to ignore. Recycling has to be incentivized, but entire supply chains have to be put into place which is no easier than building a manufacturing supply chain which India has failed to build despite many decades of effort. 

An entire legal ecosystem is likely to come up in the years ahead, out of sheer necessity, to deal with e-waste and plastic waste. 

What are we missing out on?

What are some other unexplored fields in technology law that can be beneficial for lawyers with all these advancements coming up this decade?

Are you excited to study technology law and make a career in it? We could get you started.

Reply to this mail or call us for guidance by our career counselors.

You can download free material for our course on Diploma in Cyber Law, FinTech Regulations and Technology Contracts here. The last date for enrolment for this is 14th January.

Here are a few other courses that might interest you:

DIPLOMA

Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution

Diploma in Cyber Law, Fintech Regulations and Technology Contracts

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

Diploma in Intellectual Property, Media and Entertainment Laws

EXECUTIVE CERTIFICATE COURSES

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

Certificate Course in Prevention of Sexual Harassment at the Workplace

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

Certificate Course in Advanced Criminal Litigation & Trial Advocacy

Certificate Course in Real Estate Laws

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

Certificate Course in Legal Practice Development and Management

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

The post How a career as a technology lawyer the hottest thing that could happen in this decade? appeared first on iPleaders.

This article is written by M.Arjun, a 5th-year student studying in Government Law College, Thrissur. This article deals with the Essentials of a Video Game Licensing Agreement.

Introduction

Gone are the days where video games were used to be a youngster’s affair. The video game industry has boomed in the past few years, placing it neck to neck with pioneers of the entertainment industry such as the traditional film industry and the music industry. The gaming industry has attracted a lot of popularity and monetary value in the recent past. Popular titles such as PUBG, Fortnite, and PES need no introduction. Video games are a creation of the mind and are under the ambit of intellectual property laws.

Like any intellectual property, the creation of a video game meets its purpose when it is shared with its potential users or current users. A video game licensing agreement facilitates this purpose.

A video game licensing agreement involves parties such as the video game developers, publishers, and sports organizations as in the case of “FIFA”. Video games are normally developed and licensed by gaming corporations such as Electronic Arts, Ubisoft, Konami, and so on. They obtain suitable licenses from organizations such as FIFA, WWE and further license it to the end-users through an end-user licensing agreement. 

Need For A Video Game Licensing Agreement 

As mentioned above, a video licensing agreement may involve multiple parties. Hence, it is quite essential that each party is clear about their rights and obligations. Developers and publishers of video games want their work to reach a good level of acceptance, thereby driving more revenue towards them.

They also have to make sure that the end-users of their creation are imposed certain restrictions so that the merchantability and commerciality of the video game are preserved. Meanwhile, there are entities such as sports and media organizations whose licenses are required.

For instance, video games related to football are mandated to obtain a license from FIFA for using certain attributes such as the name of a team, player, character of the player, and other related trademarks. A lot of intellectual property is involved in the creation of a video game. The gaming industry at present is witnessing a proliferating growth so as the disputes, particularly over intellectual property. 

So it is essential that a well-crafted video game licensing agreement is in place for the publication of video games. Besides, a video licensing agreement plays a crucial role in the manufacturing, advertising, and marketing of video games. A video game cannot be effectively distributed by skimping on necessary licensing agreements.

Click Here

Essentials of A Video Game Licensing Agreement

Now let’s discuss some key clauses that make up a video game licensing agreement:

Representation

In the representation clause, the licensor represents and specifies all the rights available for him. For instance, Electronic Arts commonly known as EA sports obtains licenses from FIFA for using the FIFA branding and other related trademarks. As a result, EA sports can use the name and trademarks of FIFA in their game. 

Whereas PES, a rival football game having a lot of similarities with FIFA cannot use the name “FIFA”in their game. In addition, they could not obtain certain licenses from various football leagues and teams for using their trademarks in the video game.

The representation clause mentions all the licenses which the licensor has obtained in connection with the video game. Further, the representation clause specifies all the rights available to the licensee. 

License Grant

In this clause, the licensor specifies the nature of the license and how the licensee can use the rights provided by him. The parties have to agree whether the license is an exclusive license or a non-exclusive one. For eg, EA sports has licensed various football leagues and trophies exclusively for their FIFA versions so that the same is not available to PES or other football games.

The licensor should specify all the uses permitted under the license. The right of the licensee to sublicense the granted license should be described within this clause. If the licensee has the right to sublicense, the details of such sublicense along with the number of times the licensee is allowed to sublicense should also be added in the agreement.

Royalties and Payments

The parties should agree upon a royalty for the license granted. The nature of royalty should be specified. For instance, royalties can be paid at a fixed percentage of the total sales in a particular period of time or as a certain percentage of revenue generated by the sale of each licensed product. Besides, the mode of payment, currency of payment, as well as the time limit for paying the royalties should be laid down in the agreement. 

The provision of special royalty on sublicenses should be referred to within this clause. The licensor can also ask for minimum royalties which should be paid within a prescribed period irrespective of the sales of the product.

On non-adherence with the minimum royalty provision, the licensor can also force for the cancellation of the license and enter into a fresh license with a different party. All the conditions for any renegotiation or change in royalties payable can also be added to the agreement.

Giveaway Restriction 

The giveaway restriction clause restricts the licensee from using the license for purposes other than that is permitted under the license. For example, if EA sports obtain a license from FIFA for using its trademarks, then the same shall be used only for the marketing and sale of the licensed product. Every other use of the licensed product is restricted under this clause. 

The licensor can also prevent the license from being used in certain platforms or devices. For instance, certain features of “FIFA 19” is different for different devices such as mobile phones, PCs and PlayStations. Apart from this FIFA can exclusively provide a provision for restricting EA sports from publishing the game with certain platforms such as Sony’s PSP or Microsoft’s Xbox.

Territory

The territory clause specifies the territory in which the license is allowed to use. All the marketing, promotion and sale of the licensed product should be done in accordance with this clause. All the regions in which the license is not authorised should be mentioned in this clause.

For example certain games of “EA sports” are not available on countries such as Cuba, Iran and North Korea due to some issues with embargoes and sanctions If there are no restrictions in relation to any territory, the word “worldwide” should be added to the agreement, communicating that the license is applicable throughout the world.

Term and Termination

The licensor and licensee should agree to duration, start date and end date by which the license shall remain in force. If there are any provisions for renewal of a license, the parties should expressly provide the same. The notice period or time period by which renewal should be requested shall be mentioned under this clause.

Even after the license period, if the stocks of the licensed products are left unsold, the parties should agree upon conditions for the sale of such copies. The licensor can demand a separate payment for the sale of unsold copies after the license period. On the other hand, the licensor can direct the licensee to destroy the unsold copies or sell it to the licensor at a discounted price.

The parties should also agree upon the conditions according to which the licensor can terminate the agreement. In such cases, provisions for dealing with unsold copies of the products/games should be specifically provided to avoid uncertainties. The licensor can also add a provision which provides him with the right to terminate the agreement if the licensee could not launch the licensed product/game within the stipulated time.

Periodic Statements and Records 

The licensor can enforce the licensee to maintain certain books of records with regards to the sale of licensed products. The Licensor shall also provide a section for inspection and audit of these records. Besides, the licensor can also direct the licensee to submit periodic statements for a certain time period, describing the number of sales, the gross purchase price of the licensed product and so on. 

Appearance of Trademark

This is an important clause in a video game licensing agreement where the licensor can govern the licensee’s use of his trademarks. The licensor can direct where and how licensee’s logo and trademark are to be placed in the licensed product.

E.g. in FIFA games, FIFA can direct EA sports in placing their logos in the game copies. The licensor can also add a provision for preservation and protection of goodwill related to his trademarks.

Indemnification

The indemnification clause in a video game licensing agreement should be drafted with utmost importance. The licensee should indemnify the licensor for the use of his intellectual property specifying that the licensee will not infringe the intellectual property licensed to him.

Meanwhile, the licensor should also indemnify the licensee from all the damages caused due to third party claims concerning the intellectual property licensed to the licensee. Conditions for indemnification of both the parties should be set out in detail. Besides, the maximum amount of damages payable by each party on such indemnification can also be agreed upon within this clause. 

Non-Assignability 

The Non-assignability clause ensures that the license provided by the licensor is not transferred or assigned to any third party without his consent. The licensee can sublicense the license only as per the agreed conditions. The licensor can order the licensee to obtain his written approval before the license is sublicensed or assigned to any third party.

There may be chances where the licensee may get merged or acquired by any other parties or competitors. In such circumstances, the licensor can direct all such business activities which need the prior consent and approval of the licensor.

Governing Law and Dispute Resolution

Video game licensing agreements are mostly international. The likelihood of the parties i.e the licensor and licensee to be from different geographies are quite high. Hence, this clause is quite important for both parties. The law according to which the agreement shall be construed and interpreted should be expressly mentioned.

The courts, having jurisdiction on instances of disputes should be present under this clause. Besides, a dispute resolution mechanism such as arbitration should be agreed upon by the parties. The number of arbitrators, the place of arbitration, and other relevant factors should also be specified.

Intellectual Property In the Video Game Industry

The dynamic force driving this multi-billion dollar industry is intellectual property. A wide variety of intellectual property such as copyrights, trademarks, patents, designs, and trade secrets acts as the lifeblood for the video game industry. Intellectual property is heavily involved in contractual relationships between various entities, right from the creation phase to the distribution phase of a video game.

Copyright protects the game characters, source codes and the programming language in which the game is written. It protects all the creative works such as art and music involved in the gameplay of the videogame. The Indian Copyright Act 1957 does not mention specifically about video games.

But, section 2(ffc) of the Copyright Act includes computer codes and languages under the purview of copyright. Trademark protects the names and logos of the associated games. Generally, not a lot of trademarks are involved with each game. Trademark helps to communicate the identity of the gaming corporation with the general public. For instance, every game developed by EA sports has its trademark and logo written over it.

The competition between various gaming corporations is quite intense. So, these entities are always keen to avail extra protection for their creation. Obtaining patents for their work ensures this extra protection. But patents are normally overlooked by the video game industry considering the immense difficulty for obtaining them. Software codes are not granted patents until they lead to technological innovation.

Similarly, the heart of a video game, i.e the gameplay are also not normally patentable. The industrial designs protect the graphical interfaces, colours, lines, and shapes of the various attributes used in the videogame.  Amidst the intense competition, the video industry also involves other forms of IP such as trade secrets and confidential information. It prevents employees of one gaming company, from disclosing their secrets on migration to a competitor’s company, thereby safeguarding their competitive advantage. 

Disputes in the Gaming Industry 

The video game industry is also witnessing a battle royale of disputes between various titans of the industry. In 2018, “PlayerUnknown’s Battlegrounds” popularly known as PUBG, filed a lawsuit for copyright infringement against its arch-rival “Epic games”.

Epic games are the developers of Fortnite and the lawsuit was filed in Seoul, South Korea. PUBG claimed that Fortnite copied their concept of battle royale in their gameplay. Epic games replied that the concept of battle royale was not something developed by the PUBG Corporation.

In addition, it claimed that copyright is available for the expression of ideas and not the ideas themselves. Both of these games were extremely popular among the masses with PUBG enjoying twice the amount of total players throughout the world. Later, it was reported that PUBG dropped its lawsuit after a rumour of background settlement between the parties came into light. Some of the other most controversial video game lawsuits are listed here.

Conclusion

Despite witnessing tremendous growth, the developers and publishers from the video gaming industry are still complaining about the lack of protection available to their creative work.

Copyrights form the crux of IP involved in the development of a video game. Compared to other sectors of entertainment, the video game industry is not harmonized with sufficient laws for intellectual property protection.

Copyright protects the visual elements as well as the software codes. But the presence of multiple copyrighted works and diverse nature of IP laws throughout the world cause great difficulties for their development and distribution.

Video games are distributed to end-users through an end-user licensing agreement. Selling and distributing unauthorized copies of video games along with issues such as decompilation and modification of source code still continues to be a prevalent problem in the industry.

Reference

1. https://blog.ipleaders.in/intellectual-property-rights-video-games-industry/
2. https://www.wipo.int/wipo_magazine/en/2014/02/article_0002.html
3. https://blog.ipleaders.in/intellectual-property-videogame-industry/
4. http://www.mondaq.com/uk/x/709236/Copyright/The+Battle+Royale+Of+Gaming+Disputes
5. https://blog.jipel.law.nyu.edu/2018/04/video-games-a-growing-market-and-its-intellectual-property-needs/

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

The post Essentials of a Video Game Licencing Agreement appeared first on iPleaders.

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

Introduction

It is a strange thing to realize that contracts govern many aspects of our day-to-day lives. We engage ourselves in like dozen of activities governed by contract every day, usually without realizing the legal relationship we are entering into and engaged. Contract entered are either implied or expressed. 

Similarly, when we order food through the food delivery platforms such as Zomato, Swiggy etc, by simply clicking on “Place Order” option, we enter into a contract with the Food Delivery Platforms. Through this article, we will learn about the various terms and conditions that a Food Delivery Platform should include in its Agreement. 

Before discussing the topic further, it is important to understand the relevance of Food in legal world. 

As per the recent key amendment in the Consumer Protection Act, 2019(hereinafter referred to as “CPA, 2019”) definition of “goods” under section 2(20) of the CPA, 2019 has been amended to include “food” as defined in the Food Safety and Standards Act, 2006. The amended section for easy reference is produced herein below: 

(21) “goods“ means every kind of movable property and includes “food” as defined in clause (j) of sub-section(1) of section 3 of the Food Safety and Standards Act, 2006;”

By widening the scope of definition of Goods, the meteorically “Food Delivery Platforms” would come within the fold of CPA, 2019. The amendment would also make it important for the food business operators to be aware of the rights of consumers under the legislations and comply with its obligation accordingly.

What is Food Delivery Business?

Food delivery is a retail business whereby the “Goods” are sold to public through E-commerce in a relatively small quantity for consumption and from here the role of Food Aggregators or Food Delivery Platform begins. Food Aggregators or Food Delivery Platform are the companies which provide a platform for restaurants on their domain to reach out to the consumers online. These Food Aggregators provide or Food Delivery Platform its consumers mainly with the following services:

1. Allow for easy search of restaurant nearby or wherever ;
2. Allows for home-delivery
3. Allow for its subscribers/members to go eat food in the restaurant itself at an extremely discounted price (inclusive of food and drink) means buying or selling of goods or services including digital products over digital or electronic network

Apart from amendments relating to food, another substantial change introduced in the CPA, 2019 is the inclusion of E-commerce industry. E-commerce is defined under section 2(16) of the CPA, 2019 as “buying or selling of goods or services including digital products over digital or electronic network”. Section 2(17) of the CPA, 2019 subsequently defines Electronic Service Provider “a person who provides technologies or processes to enable a product seller to engage in advertising or selling goods or services to a consumer and includes any online market place or online auction site. The CPA, 2019 efforts to include all the bodies that are engaged in the process of selling goods or service online. It is also crucial to take note of the definition of “consumer” under section 2(7) of the CPA, 2019. It is also important to note that the definition of “consumer” under section 2(7) of the CPA, 2019 makes a clear reference to online transactions. Besides, the definition of “services” the definition of “services” has been widened under section 2(42) of the CPA, 2019 and enumerate “transport” as one of the services. Hence, the Food Aggregators or Food Delivery Platforms are involved in the transportation of food will be said to provide services under the CPA, 2019. The consumers will thus approach the consumer forums for settlement of consumers’ disputes with the service providers.  Since the services provided by the Food Aggregators or Food Delivery Platforms are consumer oriented, the said Food Delivery Platforms apart from the Food Safety and Standards Act, 2006 legislation comes under purview of Consumer Protection Act, 1986 as amended from time to time. As we are aware that consumer laws are for consumers’ protection of the interest and rights and same are imbibed in the CPA, 2019. The entry of e-commerce has expanded that scope of the CPA, 2019, enabling the consumers’ to hold Food Aggregators or Food Delivery Platforms liable for the violation of their rights. It is very evident that there is a shift from caveat emptor (buyer beware) to caveat venditor (seller beware).

In light of the aforenoted transition, any Food Delivery Platform (“hereinafter referred to as “FDP”) must bear in mind the following clauses, while drafting its terms and conditions for its food delivery business. 

Indeed the terms and conditions bind the FDP and Consumer legally but there also exists an intention to make aware the consumers of their legal right and responsibilities with respect to access and use of the Food Delivery Platform, inform of its website and related mobile or software applications.

As done in any general contract, few important words are required to be defined in the definition clause for the purpose of better understanding. At the outset, the important words such as Services, User, Content, Restaurants and Delivery Charges etc. must be defined.

Broadly, the below mentioned terms and conditions will follow the definition clause: 

• Eligibility: The User must undertake to adhere to the eligibility to enter into a contract in view of section 11 of The Indian Contract Act, 1872. The User shall agree to represent and warrant that the User is at the age of 18 or above and is fully able and competent to understand and agree the terms, conditions, obligations, affirmations, representation and warranties as set forth in this Agreement.

• Compliance of Law: Both the User and the FDP must be in compliance with all laws and regulations in the country in which they live while accessing and using the Service. The User must agree to use the Services only in compliance with terms & conditions, applicable law, and in a manner that does not violate legal rights or those of any third party/parties.

• Legal implications of online food ordering: The FDP shall state in its Agreement that it provides online food ordering services by entering into contractual arrangements with Restaurants on a principal to principal basis for the purpose of listing their food and beverages for online ordering by the Users on the FDP (“Restaurant Partners”). The Users can access the list of food and beverages of the Restaurant Partners listed on FDP and place orders against the Restaurant Partners through FDP which the Restaurant Partner may or may not accept at its absolute discretion. 

User’s request to order food and beverages from a Restaurant Partner by clicking on ‘Place Order’ tab on the Restaurant Partner page on the FDP shall constitute an unconditional and irrevocable authorization issued in favor of FDP to place online orders for food and beverages against the Restaurant Partners on User’s behalf. An order, when placed on behalf of User by the FDP and accepted by a Restaurant Partner constitutes a separate contract of sale of goods under the Sale of Goods Act,1930 and the Consumer Protection Act, 2019 or any successor legislation between the Restaurant Partner and the User, to which FDP is not a party. 

The FDP shall make it clear that it is not a manufacturer, seller or distributor of food or beverages and merely places an order against the Restaurant Partner on behalf of the User pursuant to the aforesaid contract and facilitate the sale and purchase of food and beverages between User and Restaurant Partners, under the contract for sale and purchase of food and beverages between the User and Restaurant Partners. 

The FDP shall not be liable for any actions or omissions by the Restaurant Partners including deficiency in service, wrong delivery or order, quality of food, time taken to prepare or deliver the order etc. 

The FDP must state that the liability of any violation of the Food Safety and Standards Act, 2006 and applicable rules and regulations made thereunder shall solely be of the seller/owners, vendors, Restaurant Partners, importer or manufacturers of the food products. 

The FDP must disclaim in respect of some of the food that may be suitable for certain ages only. It must be the responsibility of User to check the food they are ordering and read its description, if provided, before placing order on FDP. The FDP shall not be liable in the event food ordered buy User does not meet User’s dietary or any other requirements and/or restrictions. 

Click Above

The User must warrant that while placing order the details like contact number, delivery address etc. are accurate and correct. By providing these details, the User expresses his/her acceptance to FDP’s terms and conditions and privacy policies. 

The User shall not resell food purchased via FDP. 

The FDP must state that Delivery of an order placed by the User through FDP may either be undertaken directly by the Restaurant Partner against who the User has place the order, or facilitated by the FDP through third-party (“Restaurant Partners”) who may be available to provide delivery services to User (“Delivery Partner”). In both cases, the FDP is merely acting as an intermediary between the User and the Delivery Partners, or the User and the Restaurant Partners, as the case may be.

The acceptance by a Delivery Partner of undertaking delivery of User’s order shall constitute a contract of service under the Consumer Protection Act, 2019 or any successor legislations, between the User and the Delivery Partner, to which again FDP is not a party. 

FDP must clarify that FDP does not provide any delivery or logistics services and only enables the delivery of food and beverages ordered by the Users through FDP by connecting User with Delivery Partners or the Restaurant Partners, as the case may be.

The FDP shall not be liable for any acts or omissions on part of the Delivery Partner or Restaurant Partner including but not limited to deficiency in service, wrong delivery of order, delay in reaching order, order package tampering etc. 

The User may be charged a delivery fee for delivery of order by the Delivery Partner or Restaurant Partner as the Delivery Partner or Restaurant Partner may determine (“Delivery Charges”). The User must agree that FDP is authorized to collect, on behalf of the Delivery Partner or Restaurant Partner, as the case may be. The Delivery Charges may vary from, order to order, which may be determined on multiple factors such as order value, demand during peak hours etc. The FDP must state that it will use reasonable efforts to inform the User of the Delivery Charges that may apply to the User, provided the User will be responsible for Delivery Charges incurred for User’s order regardless of User’s awareness of such Delivery Charges.

• Intellectual & Proprietary Rights: The FDP must declare its ownership of FDP content and Proprietary Rights in detail and the User must agree to protect FDP’S IPR and proprietary rights.

• License: FDP shall grant User a personal, limited, non-exclusive, and non-transferrable license to access and use the Services only as expressly permitted as per the terms and conditions of the Agreement. The user must agree not to use the services for an illegal purpose or in any manner inconsistent with the terms and conditions of this Agreement.

• FDP shall reserves it’s right that at any time and without prior notice, the FDP can remove, block, or disable access to any Content, for any reason or no reason, considered to be objectionable, in violation of the terms and conditions of this Agreement or otherwise harmful to the Services.

• Review and Ratings: The review or ratings for restaurant by User do not reflect the opinion of FDP. FDP gets many reviews or ratings for Restaurant by User, which reviews or ratings for Restaurants by Users, which shows the views of the User. It is important to state that every review or ratings posted on FDP is the personal view of the User. 

• On-Time Delivery: The User may opt for on-time delivery services offered by the FDP, for an additional non-refundable cost, at selected Restaurants. The User shall however acknowledge that such services are offered by the FDP on a best effort basis, hence should the order fail to reach on or prior to the Promise Time, the User would be eligible to receive Coupon worth value or upto INR 200, whichever is lower. The Coupon is required to be claimed within 24 hours from the time such Order is delivered failing which the eligibility to receive Coupon expires. The User shall not be eligible to receive the coupon, if FDP fails to deliver such Order within Promise Time for unforeseen reasons beyond the control of FDP eg. Strikes, natural disaster etc.

• Price List: FDP take cares to keep all the prices listed are correct at the time of publication, and have been placed as received from the Restaurants. The final price charged to the User may change at the time of delivery. In the event of conflict between prices of the FDP and price charged by the Restaurant, the price charged by the Restaurant shall be deemed to be the correct price except Delivery Charge of FDP. The total price for food ordered, including the Delivery Charges and other charges, will be displayed on the FDP when you place your order, which shall be rounded up to the nearest rupee. User shall make full payment towards such food ordered via the FDP. Any amount that may be charged to the User by FDP over and above the order value shall be inclusive of applicable taxes. 

• Delivery periods/Pickup time quoted at the time of ordering are approximate only, and may vary. When the User opts for Pickup at the time of placing the Order, and FDP shall not be liable in any manner in this regard. 

• Personal Promo Code/offers/memberships can be used by the User subject to such terms and conditions set forth by FDP from time to time. The FDP can promote its new offers/membership plans etc. and the User will have to subscribe for the same. The subscribers will only be eligible for offers opted.

• Order cancellation: The User must acknowledge that any cancellation or attempted or purported cancellation of an Order shall amount to breach of User’s unconditional and irrevocable authorization in favor of the FDP to place that Order against the Restaurant Partners on User’s behalf (“Authorization Breach”). In the event the User commit an Authorization Breach, the User shall be liable to pay the liquidated damages of an amount equivalent to the Order Value. The User must undertake to authorize FDP to deduct or collect the amount payable as liquidate damages through such means as FDP may determine in its discretion, including without limitation, by deducting such amount from payment made towards User’s next order. The FDP shall not facilitate replacements/ refunds/ or any other resolution without Restaurant’s Partner permission. All refunds shall be processed in the same manner as they are received, unless refunds have been provided to the User in the form of credits, refund amount will reflect in User’s account based on respective bank policies.

• Statutory Compliances by Restaurant Partners: The User acknowledges that FDP bears no responsibility for the compliance with statutory rules, regulations and licenses by the Restaurant Partners. The User agrees that FDP shall not be liable in any manner if the User is unable to avail the offer(s) with a Restaurant Partners due to Restaurant Partner’s violation of any statutory rule, regulation and license. 

• Limitation of Liability: The FDP shall in no manner be liable in any way for any in-person interactions with representatives or staff of the Restaurant Partners or for the member’s experience at the Restaurant Partners. The FDP in no manner be liable to the member if any outlet of Restaurant Partners temporarily or permanently shuts down its operations. The FDP will only take care of claims/liabilities arising out of offers/membership plans advertised by FDP solely.

• Assignment: The FDP may assign of its right obligations under these terms and conditions to any of its affiliates or any third party at any time.

• Food hygiene audit of Restaurant Partners:  The FDP shall undertake to initiate food hygiene auditing of Restaurant Partners in partner with certified auditors. 

• Disclaimer of warranties, limitation of liability and indemnification: Disclaimer of warranties: the User must acknowledge and agree that the Services are provided “as is” and “as available” and that the use of the Services shall be at the risk of User. To the fullest extent permitted by applicable law, the FDP, its affiliates and their respective officers, directors, employees, agents, affiliates, branches, subsidiaries and licensor (“FDP Parties”) disclaims warranties, express or implied, in connection with the Services including mobile apps and User’s use of them. To the fullest extent permitted by applicable law, the FDP parties makes no warranties or representations that the Services have been or will be provided with due skill, care and diligence or about the accuracy or completeness of the Services content and assume no responsibility for any (i) errors, mistakes, or inaccuracies of Content, (ii) personal injury of property damage, of any nature, whatsoever, resulting from User’s access to and use of the services, (iii) any unauthorized access to or use of FDP’s server and/or any and all personal information stored therein, (iv) any interruption or cessation of transmission to or from the Services, (v) any bugs, viruses, Trojan Horses, or the like which may be transmitted to or through the Services, through the action of an third party,(v) any loss of User’s data or Content from the Services and/or, (vii) an errors or omissions in any content or for any loss or damage of any kind incurred as a result of the use of any content posted, emailed, transmitted or otherwise made available via the Services. 

Any material downloaded or otherwise obtained through the use of the Services is done at User’s own discretion and risk and the User will be solely responsible for any damages to User’s computer system or other device or loss of data that results from the download of any such materials. The FDP Parties will not be a party to or in any way be responsible for monitoring any transaction between the User and third party providers of products or services. 

• Advertising: The User must agree to the advertisements that may be placed by the FDP on the Service as some of the Services are supported by advertising revenue and may display advertisements and promotions. The FDP will not be responsible or liable for any errors or omission, inaccuracy in advertising material or any loss or damage of any sort incurred as a result of any such dealings or a result of the presence of such other advertiser(s) on the FDP platform and mobile application.

• Limitation of liability: To the fullest extent permitted by applicable law, in no event shall the FDP be liable to User for any damages resulting from aforementioned points no. (i) to (vii) including but not limited to liability arising out of the (i) disclosure of information pursuant to these terms or FDP’s Privacy Policy; (ii) if the User fails to keep his/her password or account details secure and confidential, and/or (iii) loss or damage which may be incurred by the User, including but not limited to loss or damage as a result of reliance placed by the User on the completeness, accuracy or existence of any advertising, or a result of any relationship or transaction between the User and any advertiser or sponsor whose advertising appears on the Services, and/or delay or failure in performance resulting from causes beyond FDP’s reasonable control. In no event shall the FDP Parties be liable to the User for indirect, incidental, special, punitive, exemplary or consequential damages whatsoever, however, caused and under any theory of liability, including but not limited to, any loss of profit (whether incurred directly or indirectly), any loss of goodwill or business reputation, any loss of data suffered, cost of procurement of substitute goods or services, or other intangible loss. 

• Indemnification: The User agree to indemnify, defend, and hold harmless the FDP Parties from and against any third party claims, damages (actual and/or consequential), actions, proceedings, demands, losses, liabilities, costs and expenses (including reasonable legal fees) suffered or reasonably incurred by us arising as a result of or in connection with (i) User’s Content (ii) User’s unauthorized use of the Services or products or services included or advertised in the Services (iii) User’s access to Service (iv) User’s violation of any rights of another (v) User’s breach of terms and conditions including but not limited to, any infringement by the User of the copyright or intellectual property rights of any third party. The FDP retain the exclusive right to settle, compromise and pay, without your prior consent, any and all claims or causes of action which are brought against the FDP. The FDP reserve the right, at User’s expense, to assume the exclusive defense and control of any matter for which User is required to indemnify FDP and the User agree to cooperate with FDP’s defense of these claims.FDP will use reasonable efforts to notify the User of any such claim, action or proceeding upon becoming aware of it. 

• Termination by User and FDP: The User can delete his/her account at any time contacting the FDP via contact us link at the bottom of every page. The FDP may terminate User’s use of the Services and deny access to the Services in FDP’s sole discretion for any reason or no reason, including User’s: (i) violation of terms and conditions of this Agreement (ii) lack of use of the Services. The User must agree that any termination of User’s access to the Services may be affected without prior notice and acknowledge and agree that FDP may immediately deactivate or delete account and all related information and/or bar any further access to User’s account or the Services. Further, User must agree that FDP shall not be liable to the User or any third party for the discontinuation or termination of User’s access to the Services. 

• Addendum: The Food Delivery Platform should be at the liberty vary or amend or change or update the terms and conditions, from time to time entirely at its own discretion. The User shall be responsible for checking the terms and conditions from time to time and ensure continued compliance with the said terms and conditions. User’s usage of Food Delivery Platform shall be deemed as express acceptance to such amended/changed terms and the User agrees to be bound by such changes/amended Terms and Conditions. The User may be required to install certain upgrades or updates to the software in order to continue access or use the Services, or portions thereof (including upgrades or updates designed to correct issues with the Services). Any updates or upgrade provided to you by us under the term and conditions shall be considered part of the Services.

• The general important clauses such as Interpretation, Waiver, Entire Agreement, Severability, Partnership Agency etc. Governing law, Jurisdiction, Dispute Resolution etc. shall form part of this Agreement.

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

The post How will you draft the terms and conditions of a food delivery app? appeared first on iPleaders.

 This article is written by Jessica Kaur, a first-year student currently pursuing B.A. LL.B. (Hons.) at Rajiv Gandhi National University of Law, Punjab. Here, she discusses the Constitutional provisions dealing with the creation, operation, and functions of Panchayats, Municipalities and Co-operative societies.

Introduction 

What did Abramah Lincoln say about democracy? That, it is a government “of the people, by the people, and for the people”. Each citizen in a democracy, from the educated professionals living in the urban areas, to the illiterate farmers in the rural areas, should be included in this system. Each one should have the right to vote for choosing his or her own representatives from that area, who would manage the affairs with their expertise.

The Central government cannot oversee the minute workings of all the smallest units in the country. Therefore, one of the salient features of a good representative government is the percolation of the self-rule mechanism to the grassroots level, leading to more effective decision-making and greater accountability. Keeping this in mind, our Constitution has provided for the creation of panchayats, municipalities and cooperative societies to manage the affairs of the villages and urban localities in India.

In this article, we shall explore the meaning of these three terms as well as the provisions related to their creation, operation, powers and responsibilities given in the Constitution of India, 1950.

Part- IX- Panchayats

The first Panchayati system (called “Panchayati Raj”) came up in Nagaur city of Rajasthan in 1959 as per the recommendations of the Balwant Rai Committee. This Committee did far-reaching work in the area of rural democracy, which brought Balwant Rai the title of “Father of Panchayati Raj.” Gradually, this system was adopted by other states like Andhra Pradesh and Maharashtra.

However, the Constitution did not lay an obligation upon governments to constitute panchayats. Article 40 only provided a Directive Principle of State Policy that said the State should organise village panchayats and give them the necessary powers and authority to function, but this was not mandatory.

Over time, the Panchayati systems that had cropped up started going lax. A need was felt for a more well-established decentralized administration. The L.M. Singhvi Committee was appointed in 1986 to study the problems faced by panchayats. It gave several recommendations, including that panchayats should be constitutionally recognised, promoted and preserved. Thus, Article 40 was finally solidified in Part IX by the Constitution (Seventy-Third Amendment) Act, 1992.

Let’s take a look at Articles 243 and 243A- 243O under this Part, which talks about rural local self-government.

Click Here

Gram Sabha 

The very basic unit of the Panchayati system is the Gram Sabha. It has been defined by Article 243(b) of the Constitution as the body of all the persons registered on the electoral rolls of a village.

The first question that comes to mind is, what does the Gram Sabha do? 

This permanent body is the body of the electorate. This means that all other institutions – Gram Panchayat, Zilla Parishad, etc. (which we will be talking about later) – are elected by the Gram Sabha. Moreover, the Gram Sabha acts as a forum where people can discuss matters of governance and development.

Therefore, Gram Sabha is the primary and fundamental component of the local self-government system. However, the extent of its powers depends upon the policy of the state in which the village is located, as mentioned in Article 243A. 

The membership of a Gram Sabha is restricted to persons above the age of 18 living in that village. This is done so that the best decisions, which are in line with the interests of the village, can be made.

We now move on to the self-government body that is elected by the Gram Sabha – the Panchayat.

Constitution of Panchayats

Under Article 243(d) of the Indian Constitution, ‘panchayat’ has been defined as an institution of self-government in rural areas. 

Article 243B provides for the establishment of a three-tier Panchayati system:

1. At the village level i.e. Gram Panchayat
2. At the intermediate level i.e. Panchayat Samiti
3. At the district level i.e. Zila Parishad

Intermediate-level panchayats, however, only exist in states where the population exceeds twenty lakhs. 

Gram Panchayat

Gram Panchayat is the lowest level in the panchayat pyramid system. 

Each village is divided into even smaller units called wards, each of which selects a representative of its own. They are called Ward members or the Panch. The Gram Sabha also elects the head of the Gram Panchayat, called the Sarpanch. Therefore, the Sarpanch and the Panch together make up the Gram Panchayat.

The main work of the Gram Panchayat is to take care of social issues, construct and maintain schools, roads and drainage facilities, etc., and to levy and collect local taxes.

The Gram Panchayat is accountable to the general body of voters in the village, i.e. the Gram Sabha, as well as to the two levels of authority above it in the hierarchy.

Panchayat Samiti

The Panchayat Samiti is the next level in the hierarchy. It oversees the working of the Gram Panchayats of all the villages located in the block under its jurisdiction.

The Panchayat Samiti is headed by the Pradhan. He or she is elected by a group consisting of all the members of the Panchayat Samiti as well as all the Panchs of the Gram Panchayats coming under it.

Zila Parishad

Also known as District Panchayat, this is the highest level of panchayat in the hierarchy of rural self-government. It oversees the working of the Panchayat Samitis of all the blocks in the district of its jurisdiction, as well as all the Gram Panchayats under them. Moreover, it controls the distribution of funds among all the Gram Panchayats. It is responsible for making developmental plans at the district level. 

The Zila Parishad is headed by the Chairman. It also has a Chief Executive Officer as a member, who is elected by the State government.

Composition of Panchayats 

All the members of the three levels in the panchayat hierarchy are elected by the eligible voters living in the area. However, the state can also make provisions for the representation of Members of Legislative Assembly (MLAs) or other officials in the panchayat. As for the rules regarding the composition of the panchayats, they have been taken care of by the Drafters under Article 243C of the Constitution.

A large number of panchayats are constituted in a single state. It is preferable that the ratio between the population and territory under one panchayat and the number of seats in it be the same throughout the state.

Each area having a single panchayat is divided into constituencies for the purpose of conducting elections. It is also desirable that the ratio between the population of each constituency and the number of seats allotted to it be the same throughout the panchayat area.

Disqualifications for Membership

A person can be disqualified from the membership of the panchayat in certain situations. As per Article 243F of the Constitution, this can happen when the person has been disqualified from membership of the Legislature of the Union or the State because of any reason, or if he has been specifically disqualified from membership of the panchayat by any law.

If a question arises regarding the disqualification of membership of any person, then it will be solved by the authority and by the process which the Legislature decides.

Bhanumati Etc. v. State of U.P. (2010)

Facts: 

In this case, a no-confidence motion was passed against the Chairman of a Zila Parishad under the U.P. Panchayat Laws (Amendment) Act, 2007. She challenged it on the grounds that a provision for no-confidence motion could not be made under the statute as it was not mentioned in the Constitution.

Judgement

The court dismissed the appeal, saying that the Constitution grants the State the power to fixate specific rules regarding election and membership. Therefore, the no-confidence motion was sustained.

Thus, this case is an example of the membership of a person to a Zila Parishad being under threat of disqualification under existing State law, and how the court upheld that motion.

Reservation of seats in Panchayats

The Drafters of our Constitution were aware of the reality of the rampant discrimination in India at the time of independence – which, unfortunately, has not completely died down even today. Keeping that in mind, they made special provisions for the representation of marginalised communities in the local self-government too. This was done to ensure that women, members of the downtrodden castes, etc. in the rural areas also get the opportunity to have their voices heard.

Article 243D of the Indian Constitution gives the provisions for reservation of seats in the panchayats for certain communities. They have been briefly described below.

1. Seats should be reserved for members of Scheduled Castes and Scheduled Tribes in the panchayat, in the same proportion which their population bears to the total population of the village.
2. At least one-third of the above-mentioned seats should be reserved for women belonging to Scheduled Castes and Scheduled Tribes.
3. At least one-third of the total seats in the panchayat should be reserved for women (including the seats reserved under Clause 2).

Duration of Panchayats 

The Constitution has specified the exact duration of operation of a panchayat in Article 243E. It states that every panchayat shall continue to be in force for a period of 5 years unless it is dissolved earlier by any law.

It also says that election to a panchayat should be completed before its expiry or 6 months before its dissolution.

Powers, Authority and Responsibility of Panchayats 

Panchayats have the power to prepare the plans and schemes for economic development and promotion of social justice in the village. They are responsible for preparing practical and well-thought-out plans which will enable the furtherance of the interests of the villagers. As per Article 243G, it is the State which determines the specific scope and extent of the powers of the panchayat in the above matters.

Some major functions of a panchayat are as follows:

1. Providing necessary facilities like sanitation and medical assistance, schools, irrigation, roads, drinking water, etc.
2. Making annual developmental plans for the area and preparing schemes for more scientific agriculture, employment generation, etc.
3. Making the annual budget and managing the finances of the area.
4. Implementing and coordinating schemes launched by the Central and State governments, like the Public Distribution System.

Powers to impose Taxes and Funds of Panchayats

Clearly, there are a lot of functions that a panchayat has to perform. And as we know, nothing in this world is free; to do anything, we need monetary resources. Where, then, do the monetary resources of the panchayats come from?

All of us pay taxes to the government on our incomes and expenditures. This acts as a source of revenue for the government. Some of these funds are appropriated to the panchayats. Also, in the same way as the government, panchayats too collect their own taxes, tolls, and fees from the people to keep their gears running smoothly.

Article 243H mentions that the State can take decisions to:

1. Grant the requisite power to the panchayat to levy taxes, tolls, and fees. 
2. Assign to the panchayat some of the money collected by it in similar ways.
3. Make grants to the panchayat, or create funds for it.

Finance Commission

To make the above-discussed process of mobilisation of funds for the panchayats easier, the Constitution has provided for the creation of a Finance Commission by the Governor under Article 243I. Enumerated below are the main provisions of this Article.

1. The Finance Commission appointed by the Governor would review the financial position of the panchayat and make recommendations in two matters: how to distribute the money between the state and the panchayat, and how to improve the financial position of the latter.
2. The Legislature would decide the composition of the Commission, the qualification of its membership, as well as the powers it would hold.
3. The Governor shall communicate all the recommendations made by the Commission to the state as well as the measures it should take to implement them.

Audit of Accounts of Panchayats 

As per the Constitution of India (Article 243J), State governments have the power to determine who will audit the accounts of panchayats and what procedure will be followed in their own states.

Election to the Panchayats 

The provision for an election to panchayats has been enshrined in Article 243K of the Indian Constitution. It says that the Panchayat elections are to be conducted and overseen by the State Election Commissions. Therefore, the election rules can vary from state-to-state.

Application of this Part to Union Territories 

The Constitution states that the provisions related to panchayats shall apply to Union Territories in the same way as in the case of the states, but the President may, by public notification, make any modifications in this provision.

Part IX does not apply to certain areas

There are certain areas in India that stand as exceptions to Part IX of the Constitution. This means that the state cannot establish panchayats in those areas. The areas which are provided as exceptions by Article 243M are mentioned below:

1. The Scheduled Areas and tribal areas in the states of Assam, Meghalaya, Tripura, and Mizoram
2. The states of Nagaland, Meghalaya, and Mizoram
3. The hilly areas in the state of Manipur and the district of Darjeeling.

However, the Legislature can decide to extend Part IX to some of the above exceptions. The Constitution says that the Parliament may extend the provisions of Part IX to Scheduled Areas mentioned in (1) above. Also, the Legislatures of Nagaland, Meghalaya, and Mizoram may extend Part IX to their states (except the Scheduled and tribal areas). 

Scheduled Areas have been excluded from Part IX because these predominantly tribal areas often had their own customs of governance, or else had been provided with other specific systems for their benefit. However, the tribes started becoming increasingly vulnerable and lost many of their forests, minerals, rivers, etc. to developmental projects. Thus, an established system of self-governance was required for them.

The Provisions of the Panchayats (Extension to Scheduled Areas) Act, 1996 or PESA was the law that brought about a relaxation in exclusion of Scheduled Areas from the 73rd Amendment. The self-governance system was introduced in ten out of fifteen states having Scheduled Areas. 

The case of Union of India v. Rakesh Kumar saw certain challenges to PESA.

Union of India v. Rakesh Kumar (2010)

Facts

Section 4(g) of PESA provided for the reservation of seats in a panchayat for members of Scheduled Tribes. Also, it said that in panchayats in Schedules Areas, only a member of Scheduled Tribes would be elected as Chairman. In Jharkhand, the reservations in panchayats in Scheduled Areas were supposed to be proportionate to the rest of the population and could go up to 80%.

These provisions were challenged in this case. The argument was that the reservations were excessive as they went against the cap of 50% reservations held in Indira Sawhney v. Union of India (1992) and M.R. Balaji v. State of Mysore (1963), and that they violated Article 14.

Judgement

The court held that these reservations were required to assist Scheduled tribes. In Jharkhand, the government had obligations to Scheduled tribes beyond the 50% cap as reservations were supposed to be proportional. However, 80% reservation was just the upper limit and it was not necessary to fill all those seats.

Continuance of existing laws and Panchayats: Article 243-N

Even before the enactment of the 73rd Amendment in 1992, there existed certain laws and provisions relating to Panchayats in various states. Article 243N, therefore, provides that any such laws and provisions would continue to be in force even if they were inconsistent with Part IX of the Constitution unless they were specifically repealed or amended by a competent Legislature or any other competent authority.

Usha Bharati v. State of U.P. (2014)

Facts

In this case, the appellant was the Adhyaksh of the Zila Parishad of Sitapur, Uttar Pradesh. Almost 2 years after her election, a motion of no-confidence was passed against her by the villagers, signed by 37 members, to initiate her removal. This was done in accordance with Section 28 of the U.P. Kshetra Panchayat & Zila Panchayat Act, 1961. The appellant challenged this, saying that no provision had been made in the Constitution for a no-confidence motion in panchayat elections, and thus it was illegal and invalid.

Judgement

The court said that as per Article 243N, any existing laws of the State related to panchayats would continue to be in force unless repealed or amended. Since the provision for a no-confidence motion in the U.P. Act had not been repealed and instead, rather had been confirmed in other judgments since then, it did not go against Part IX of the Constitution.

It also said that the Constitution empowered the state to make laws for the election of Chairperson of panchayat and therefore, the no-confidence motion in the state was also supported by it.

Courts to not interfere in electoral matters 

Article 243O of the Constitution bars courts from interfering in the matters of panchayats, like delimitation or allotment of seats. Courts have no jurisdiction in electoral matters of a panchayat. This means that if there are any disputes in an election process, the court cannot step in to resolve them. A panchayat’s elections can be questioned only by an election petition presented before the authority that the State government has prescribed.

PART lX-A: The Municipalities

Just like Panchayati Raj in rural areas, a system of self-governance at the smallest units has been established in urban areas too. It was added to the Constitution by the Constitution (Seventy-Fourth Amendment) Act, 1992, which was also known as the “Nagarpalika Act”. This allowed the members of a particular urban locality to come together and work towards solving the issues in their area and implementing plans for its development. These self-government bodies are known as Municipalities.

The advantage of the municipal system is that after people have elected their representatives, they have someone to approach for expressing their grievances, and someone they can hold accountable for the management of the locality. 

The Municipal system is not much different from the Panchayati system, having only a few changed aspects that help to cater to the different environment. Now that we have an understanding of panchayats, we can have a quick look at municipalities given in the provisions of Part IX-A of the Constitution (Article 243P to Article 243ZG).

Definition

The municipality has been defined in Article 243P as simply an institution of self-government in an urban area, constituted under Article 243Q. 

It has also defined district as a district in a state; and a metropolitan area as an area having a population of ten lakhs or more, comprising of multiple districts and consisting of multiple municipalities or panchayats.

Constitution of Municipalities 

The Constitution, in Article 243Q, provides for the rules regarding the constitution of municipalities. According to it, three types of municipalities are to be created:

1. Nagar Panchayats, for transitioning areas (areas turning from rural to urban)
2. Municipal Councils, for smaller urban areas
3. Municipal Corporations, for larger urban areas

Most of the members of municipalities are elected, while there may be some who are nominated by virtue of their special knowledge and expertise. The state may also provide for representation of members of the Legislative Assembly and Legislative Council in the municipality. 

Nagar Panchayats

Also called Notified Area Committee, it is set up in an area that does not qualify completely as an urban area but which the government considers important. It is set up in areas having more than 11,000 but less than 25,000 people living. 

The members of a Nagar Panchayat are called ward members. They are headed by a Chairman.

Municipal Councils

Also called Nagar Palikas, they are established in areas having more than 1,00,000 but less than 10,00,000 people living. 

Its members are also called ward members, and they elect a President to head them. Apart from that, the State appoints a Chief Officer and other officers like health officer, education officer, etc. to manage the affairs of the municipal council.

Fun fact: Uttar Pradesh has the largest number of municipal councils.

Municipal Corporations

A Municipal Corporation is also called a Nagar Nigam or a Mahanagar Palika. It is the top tier municipality and enjoys the highest degree of autonomy. Municipal Corporations are established in urban areas having a population of more than 1 million.

The biggest Municipal Corporations are found in the major metropolitan cities of India like Delhi, Mumbai, Chennai, Kolkata, etc.

Wards Committees 

For the purpose of conducting elections to the municipality, the area under its jurisdiction is divided into Wards. These Wards also have their own Committees, consisting of one or more wards within the area of all municipalities having a population of 3 lakh or more.

Reservation of seats in Municipalities 

Special provisions have been made for the representation of marginalised communities in the urban local self-governments. This has been done to ensure that women, members of the downtrodden castes, etc. also get the opportunity to have their voices heard.

Article 243T of the Indian Constitution gives the provisions for reservation of seats in the municipalities for certain communities. They have been briefly described below.

1. Seats should be reserved for members of Scheduled Castes and Scheduled Tribes in the municipality, in the same proportion which their population bears to the total population of the locality.
2. At least one-third of the above-mentioned seats should be reserved for women belonging to Scheduled Castes and Scheduled Tribes.
3. At least one-third of the total seats in the municipality should be reserved for women (including the seats reserved under Clause 2).
4. The offices of the Chairpersons shall be reserved for Scheduled Castes, Scheduled Tribes and women as the Legislature decides.

An interesting case in the matter of reservation of seats is Saraswati Devi v. Smt. Shanti Devi and Ors. (1997).

Saraswati Devi v. Smt. Shanti Devi and Ors. (1997)

Facts

In this case, the appellant and respondent were both women of Scheduled Castes elected to the Municipal Committee in Loharu, Haryana. The appellant occupied the seat reserved for Scheduled Castes while the respondent was elected in an unreserved seat. The office of the President was to be, as per the State, filled by a Scheduled Caste person. Both the women wanted to contest for this post but while the appellant was allowed to, the respondent was not, as she did not occupy a reserved seat. 

Judgement

The court held that as the respondent was elected as a member not on a reserved seat but a seat for General category of women, she could not be included in the eligible Scheduled caste candidates for Presidentship.

While she did belong to the Scheduled Caste category, she and the appellant were not in the same category for the purpose of elections. Including her would mean that all the elected members belonging to Scheduled Castes were in one category and thus, could contest for the post of President, which would distort the reservation scheme given in Article 243T of the Constitution of India.

Reservation of seats for Backward class of citizens

The Article also says that nothing in Part IX-A shall prevent the Legislature of a State from making provisions for reservation of seats in a Municipality for citizens belonging to backward classes. This means that the Legislature has the opportunity to take the existing reservation provisions forward and extend them to backward classes if it feels the need to do so.

Duration of Municipalities

The Constitution has specified the exact duration of operation of a municipality in Article 243U. It states that every municipality shall continue to be in force for a period of 5 years unless it is dissolved earlier by any law.

It also says that election to a municipality should be completed before its expiry or 6 months before its dissolution.

Kishan Singh Tomar v. Municipal Corporation of the City of Ahmedabad (2007)

Facts

In this case, the appellant was the Chairman of the Standing Committee of the Ahmedabad Municipal Corporation. He filed a writ petition for the Municipal Corporation of Ahmedabad, the government of Gujarat and the State Election Commission to take necessary steps for holding timely elections to the Municipal Corporation, before its approaching expiry.

The State Election Commission replied saying that since the number of wards in Ahmedabad had been increased, which required revisal of voters’ list in consultation with political parties, it would take 6 months to complete the election process, and could only be done after the State’s notification. An appeal was filed against this.

Judgement

The court acknowledged that Article 243U’s provision in this matter was given so as to prevent mischief or delay in the election process. The State Election Commission needed to work independently and with authority, and complete the elections before the expiration of the duration of the current municipal corporation in Ahmedabad.

Disqualifications for Membership

A person can be disqualified from the membership of the municipality in certain situations. As per Article 243V of the Constitution, this can happen when the person has been disqualified from membership of the Legislature of the Union or the State because of any reason, or if he has been specifically disqualified from membership of the municipality by any law.

If the question arises regarding the disqualification of membership of any person, then it will be solved by the authority and by the process which the Legislature decides.

Powers, authority and responsibilities of Municipalities

Municipalities play a very important role in regulating the affairs of the localities – ensuring access to civic amenities and formulating plans for development. 

As per Article 243W of the Constitution, the Legislature of the State endows its municipalities with the authority to formulate plans for economic development and social justice in the locality and to perform the functions entrusted to them which are necessary for the management of the area.

The main functions of a municipality include:

1. Construction of buildings and regulation of land use
2. Managing the water supply
3. Protecting natural resources and regulating their use
4. Ensuring public health and proper sanitation
5. Construction of schools in the locality

Power to impose taxes and funds of the Municipalities 

A municipality needs funds and resources to perform its wide range of functions. There are certain methods laid-out in Article 243X of the Constitution through which municipalities mobilise funds. The process is very similar to the one followed by panchayats, so let’s have a quick look at the provisions of this Article. 

The Constitution provides that the State can take decisions to:

1. Grant the requisite power to the municipality to levy taxes, tolls, and fees. 
2. Assign to the municipality some of the money collected by it in similar ways.
3. Make grants to the municipality, or create funds for it.

Finance Commission

Just like in the case of panchayats, the Constitution has provided for the creation of a Finance Commission for municipalities by the Governor under Article 243Y. Enumerated below are the main provisions of this Article.

1. The Finance Commission appointed by the Governor shall review the financial position of the municipality and make recommendations in two matters: how to distribute the money between the state and the municipality, and how to improve the financial position of the latter.
2. The Legislature would decide the composition of the Commission, the qualification of its membership, as well as the powers it would hold.
3. The Governor shall communicate all the recommendations made by the Commission to the state as well as the measures it should take to implement them.

Audit of Accounts of the Municipalities

As per the Constitution of India (Article 243Z), State governments have the power to determine who will audit the accounts of municipalities and what procedure will be followed in their own states.

Election to the Municipalities

Elections to municipalities are conducted under the guidance and control of the State Election Commission, as given in Article 243ZA. This means that election rules in a particular municipality depend on the policy of the government of the State in which it lies.

Application to Union Territories 

The Constitution states that the provisions related to municipalities shall apply to Union Territories in the same way as in the case of the states, but the President may, by public notification, make any modifications in this provision.

Part IX-A does not apply to certain areas 

There are certain areas in India that stand as exceptions to Part IX of the Constitution. This means that the state cannot establish municipalities in those areas. The areas which are provided as exceptions by Article 243ZC are mentioned below:

1. The Scheduled Areas and tribal areas in the states of Assam, Meghalaya, Tripura, and Mizoram 
2. The Darjeeling Gorkha Hill Council.

However, the Constitution also says that the Parliament can choose to extend the provisions of Part IX to the Scheduled Areas mentioned above, subject to certain exceptions and modifications specified by law.

Committee for District Planning

The Constitution has provided for the creation of a District Planning Committee in every district. What does this District Planning Committee do?

According to Article 243ZD, a Committee for District Planning is set up to consolidate the plans made by panchayats and municipalities in a district. It is also responsible for preparing development plans for the district, keeping in mind the interests of both the rural and urban areas within it and the resources available with the district. These plans are communicated by the Chairperson of the Committee to the State government.

This article also provides that the State Legislature decide the composition of the Committee and how the Chairperson will be chosen, as well as the exact functions it will perform.

Committee for Metropolitan Planning

The concept of the Metropolitan Planning Committee is very similar to that of the District Planning Committee discussed above. Article 243ZE provides for the creation of a Committee for Metropolitan Planning in every Metropolitan area in a state, which shall make plans for development keeping in mind the needs of the rural and urban areas within it (with respect to water and other natural resources, infrastructure, etc.), implement the plans made by the Union or the State and make investments in the metropolitan area.

This article also provides that the State Legislature decide the composition of the Committee and how the Chairperson will be chosen, as well as the exact functions it will perform.

Continuance of existing laws and Municipalities

Even before the enactment of the 74th Amendment in 1992, there existed certain laws and provisions relating to Municipalities in various states. Article 243ZF, therefore, provides that any such laws and provisions would continue to be in force even if they were inconsistent with Part IX of the Constitution unless they were specifically repealed or amended by a competent Legislature or any other competent authority.

It also states that municipalities existing before the enactment of the new law shall continue to be in force until their expiration unless specifically dissolved by the Legislative Assembly (and also the Legislative Council, if it exists in the state).

Courts to not interfere in electoral matters 

Article 243ZG of the Constitution bars courts from interfering in the matters of municipalities, like delimitation or allotment of seats. Courts have no jurisdiction in electoral matters of a municipality.

This means that if there are any disputes in an election process, the court cannot step in to resolve them. A municipality’s elections can be questioned only by an election petition presented before the authority that the State government has prescribed.

Amendment of Article 280 

A major step was taken regarding self-government bodies in tribal areas in 2019 with the 125th Amendment to the Constitution, which sought to change Article 280 and the Sixth Schedule. This amendment provided for significant improvement in the financial resources and powers of the autonomous District councils in the predominantly-tribal states of Assam, Meghalaya, Mizoram, and Tripura.

It also provided for elected and more empowered village councils who could prepare plans for economic development and social justice in the area – dealing with important matters like agriculture and irrigation, forests, etc. 

PART IX-B: The Co-operative Societies 

Panchayats and municipalities are government organisations that are established by the State governments, and which manage all the affairs of the area in which they are located. However, sometimes, a group of people with certain shared characteristics (for eg. the same occupation) may come together to manage the affairs of their community. This is called a co-operative society, and it is the third type of organisation we shall be discussing.

A co-operative society refers to an organisation of like-minded people who voluntarily come together to promote their economic, social or cultural interests. They invest their time, efforts and personal resources for this purpose.

Co-operatives may be of different types, like a co-operative housing society, a co-operative business society (which sells goods produced by its members), etc. One of the best examples of a co-operative society in India is Amul, which started as a small society of few dairy farmers in Gujarat and today runs as one of the main suppliers of dairy products in the country.

The Constitution (Ninety-Seventh Amendment) Act was passed in 2011 to make states facilitate the creation and working of co-operative societies in their territory. Let’s examine the provisions regarding co-operative societies, given in Article 243ZH to Article 243ZT under Part IX-B.

Definitions 

Article 243ZH defines a co-operative society as a society registered or deemed to be registered under any law relating to co-operative societies.

It also defines certain terms related to co-operative societies. The Board refers to the Board of Directors who govern, direct and control the management of the society. The members elected by this board as the President, Chairman, Treasurer, etc. are called the office bearers.

Further, a multi-state co-operative society has been defined as one which works not in one single state, but multiple states.

Incorporation of co-operative societies

Just like any other institution or organisation, co-operative societies to need a prescribed procedure for their incorporation. If we want to create a co-operative society today, what are the rules we must follow?

Well, these rules vary from state-to-state. Article 243ZI mentions that a State Legislature can decide the process of incorporation, regulation and winding up of co-operative societies in its territory, keeping in mind the major co-operative principles – democratic set-up, member participation, and autonomy.

Number and term of members of the board and its office bearers

The Constitution, under Article 243ZJ, has given the provisions related to the membership of the co-operative society. They have been briefly described below.

1. It states that the maximum number of directors on the board of a co-operative society can be 21. The exact number within this limit can be decided by the State.

Another thing that it says is that amongst these directors, one seat should be reserved for a person of Scheduled Castes or Scheduled Tribes and two seats should be reserved for women.

1. Further, the Article states that the term of board members and office members of the society shall be 5 years.
2. Lastly, provisions may be made by the State Legislature for appointing at most 2 persons to the society who have expertise in that particular field. However, these 2 members shall not vote or contest in elections.

Removal by a no-confidence motion 

In case a member of the co-operative society is found to be using unfair or corrupt practices, or is working against the general interest of the body, or occupies a managerial position whose functions he or she is not able to perform, the other members can pass a no-confidence motion against him or her to remove the said member. 

Since all states have their separate co-operative society laws, the circumstances in which a no-confidence motion can be passed as well as its rules and procedure vary from state-to-state.

Election of members of the board 

One of the fundamental principles of a co-operative society is a democratic set-up and member participation, which ensures that all members play a role in furthering the common interests of the entire body of members. Therefore, it is essential to conduct proper and timely elections in every co-operative society.

Article 243ZK says the State Legislature can decide the rules and procedure of co-operative society elections. The elections shall be conducted and supervised by the authority which the state government prescribes. However, it must be made sure that the elections to the board are conducted before the expiry of the term of the existing board, so that the new board is ready to take over after the expiry of the previous one and there is no gap between the two.

Supersession and suspension of board and interim management 

Sometimes, the board of directors of the co-operative society may be superseded or suspended by the Government in unfavourable circumstances. This can only be done when the Government has some shareholding in or has given as loan or financial assistance to the society. The circumstances in which the board may be superseded or suspended, as per Article 243ZL are:

1. When the board has persistently been defaulting
2. When it has neglected its duties
3. When it has committed any act against the interests of the co-operative society or its members
4. When there is a stalemate in the constitution of the board or its functions
5. When the authority or body prescribed by the State Legislature has failed to conduct elections in accordance with the provisions of the State Act.

In case the board is superseded, the administrator appointed by the state to look over the affairs of the co-operative society should take the necessary steps to conduct elections for the board.

Audit of accounts of co-operative societies

Audit of accounts of co-operative societies is necessary to ensure that they are being managed professionally and are not suffering from inexpertise, neglect or corruption. The Indian Constitution has provided the rules for audit of accounts of co-operative societies. Upon reading Article 243ZM, the main rules can be understood as follows:

1. The State Legislature may make provisions for regular maintenance of accounts by co-operative societies and their audit at least once a financial year.
2. It may also decide the minimum qualifications for the auditors.
3. The audit of the accounts of every co-operative society should be completed within 6 months of the end of each financial year.
4. These audit reports should be produced before the State Legislature in the manner prescribed by it.

Convening of general body meeting 

Article 243ZN of the Constitution gives freedom to the State Legislature to make provisions for co-operative societies to convene their general body meetings within 6 months of the end of every financial year.

Right of a member to get information 

The Constitution has made certain provisions for the Right to Information of a member of a co-operative society. Article 243ZO says that the State Legislature may:

1. Provide for access by a co-operative society member to its books, accounts, etc. 
2. Provide for participation of members in the management of the society by ensuring a minimum attendance by members.
3. Provide for co-operative education and training for the members.

Filing of Returns

Co-operative societies possess a great degree of autonomy to manage and control their affairs. However, they are still subject to State scrutiny, in order to check that they are functioning smoothly and no corrupt practices are being undertaken.

Every co-operative society is required to file returns to the authority prescribed by the State government. Certain matters that these returns must include are given in Article 243ZP, explained below:

1. An annual report of its activities
2. An audited statement of accounts
3. A plan for using surplus as approved by consensus of the members of the society
4. A list of amendments to the bye-laws of the co-operative society (if any)
5. A declaration as to the date of its general body meeting as well as elections
6. Any other information required by the State.

Offences and penalties 

Due to their autonomous nature, there is a chance of unscrupulous activities by some co-operative societies or their members. Article 243ZQ says that the State Legislature may decide what constitutes as an offence with reference to a co-operative society, and how those offences are to be punished.

It has also given certain situations which must be included in the offences, which are as follows:

1. A society or its member intentionally filing false returns, giving false information, or not furnishing information at all to a State-authorised person.
2. A person intentionally or without reasonable justification ignoring summons or orders issued by the state.
3. An employer not paying the money to the co-operative society which has been deducted by him from his employee, within 14 days.
4. A custodian of records, documents, cash, etc. of a co-operative society failing to hand them over to an authorised person.
5. Any person adopting a corrupt practice before, during or after the election of board members or office bearers.

Application to multi-State co-operative societies

Article 243ZR states that all the provisions of Part IX-B apply in the same way to multi-state co-operative societies as to the single state ones. The only difference is that in the case of the former, the words ‘Legislature’, ‘State Act’ and ‘State government’ would be replaced by ‘Parliament’, ‘Central Act’ or ‘Central government’.

Application to Union territories 

The Constitution states that the provisions related to co-operative societies shall apply to Union Territories in the same way as in the case of the states, but the President may, by public notification, make any modifications in this provision.

Continuance of existing laws

Even before the enactment of the 97th Amendment in 2011, there may have existed certain laws and provisions relating to co-operative societies in various states. Article 243ZT, therefore, provides that any such laws and provisions would continue to be in force even if they were inconsistent with Part IX of the Constitution unless they were specifically repealed or amended by a competent Legislature or any other competent authority.

Conclusion 

The Constitution has given us elaborate and thought-out provisions that determine the meaning and functions of local self-government and management bodies i.e. panchayats, municipalities and co-operative societies. This has been done to render greater decentralisation to the governance mechanism, which enables better decision-making and faster development. Thus, these institutions play a very important role in improving the quality of life of citizens in rural areas and urban centres.

Through this article, we studied in detail these provisions of the Constitution to gain more insight into the world of local self-governments.

References

• https://indiankanoon.org/doc/237570/
• https://www.writinglaw.com/part-ixb-of-constitution-of-india-the-co-operative-societies/
• https://www.writinglaw.com/part-ixb-of-constitution-of-india-the-co-operative-societies/

To know more about Video Game Agreement, please click here

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

The post Panchayats, Municipalities and Co-operative Societies: Analysis of Constitutional Provisions appeared first on iPleaders.

This article is written by Kapil Nikam, pursuing a Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution from Lawsikho.com. Here he discusses “Conversion of Public Limited Company into Private Limited Company”.

Introduction

There are largely two types of Companies, One is a Private Limited Company and the other is Public Limited Company. Public Company is defined in S. 2 (68) of the Companies Act, 2013 and Private Company is defined Under S. 2 (69) of the Companies Act, 2013.  For our understanding, we can derive that Private Companies are those Companies whose articles of association restricts the transferability of shares and prevent the public at large for subscribing to them. This is the basic and important difference between a Private Company and Public Company.  Private Companies can now have a minimum paid-up capital of any amount. Public Company means a Company that is not a Private Limited Company and has a minimum paid-up capital of five lakh rupees or such higher paid-up capital as may be prescribed.   

Conversion of Public Limited Company into Private Limited Company is mentioned in the Companies Act, 2013 and Incorporation of Companies Rules, 2014. Prior to that, we need to see why it is necessitated to the conversion of Public Limited Company into a Private Limited Company. Being a Public Limited Company it required and mandated to follow various statutory guidelines as provided under the provisions of Companies Act, 2013 and rules made thereunder. Apart from this, there are various types of compliance to be done under the provisions of Companies Act, 2013 (Act) and SEBI Act. Private Limited Company has fewer compliances compared to Public Limited Company so that generally it is a tendency to convert Public Limited Company into Private Limited Company. 

Earlier, the National Company Law Tribunal (NCLT) has a power pertaining to the conversion of Public Company into Private Company. There are several amendments that took place in Companies Act, 2013 and NCLT has a lot of assignments. Since 2013 Act came into effect NCLT has a jurisdiction to entertain the winding-up Petitions earlier same were entertained by the High Courts in view of this 

Now we are going to see the procedure for the conversion of Public companies into Private companies.  

We need to go through certain provisions of Companies Act, 2013 which are associated with the conversion procedure.  

Some Important provisions of the Companies Act, 2013 (Act) is as under: 

Section 13 of the Act speaks about the alteration of memorandum Company can alter memorandum in terms of S. 61 of the Act. This section explained about any changes in the alteration of memorandum for that purpose prior permission of the central government is required. This section further provides that no such approval is required on account of conversion if addition/ deletion with respect to the word “Private” means if the entire name is changed in that circumstances prior permission is required as envisage in said section. 

Section 14 of the Act speaks about the alteration of memorandum and conversion in Public Company into Private Company, it is also mentioned that prior permission is required. Also, we need to read this Section with Companies Incorporation (Fourth Amendment) Rules 2018 wherein the details procedure for conversion of Public Company into Private Company has been discussed. 

Click Above

Section 18 of the Act speaks about the conversion of Companies which are already registered under the provisions of the Act. Section 18 states that a Company of any class may convert itself a Company of other class under the provisions of the Act by alteration of memorandum and articles of the Company in terms of the relevant chapter relating to the Section 18 of the Act. Certain compliance is required to be done and the registrar should satisfy with the said compliances. This Section further states that registration of the Company under this Section shall not affect any debts, liabilities obligations or contracts means said liabilities cannot carve out the mere conversion of Public Company into Private Company. 

In view of aforesaid S. 14 of the Act, a Public Company may convert into a Private Company with prior approval from the Central Government. The conversion of Public Company into Private Company has been explained in the Companies Incorporation (Fourth Amendment) Rules, 2018. The Central government has vide power to amend said rules. These rules are amended from time to time. In view of this, we need to update recent notifications that are updated on time to time at the website of MCA. 

• Steps for the conversion of Public Company into Private Company: Section 13, 14 and 18 of the Act need to be read with Rule 41 of the Companies Incorporation (Fourth Amendment) Rules, 2018. Rule 41 describes the procedure/ steps for the conversion of Public Company into Private Company. Following steps need to be taken for conversion of Public Company into Private Company: 

1. The Board meeting shall be convened for the conversion decisions. All formalities as per secretarial standards shall adhere to the said meetings since it’s a crucial part in terms of the conversion procedure. The Board approves the conversion procedure. The minutes of the meeting should be drafted carefully.
2. The Company shall authorize any representative to act on behalf of the Company for further conversion procedure. One Certified True Copy of resolution may be required on behalf of the Company in favor of any professional to represent the Company before the Regional Director.
3. The General Meeting of the Company shall be called.
4. The General Meeting shall take a decision for the conversion of the Company.
5. The necessary E form should be filed pertaining to the decision of conversion of the Company. S. 117 of the Companies Act, the mandate to file certain documents at the time of said filling. The said documents should be carefully submitted.
6. The necessary application for conversion shall be drafted and submitted before the Regional Director.
7. The said application has to file within 60 days from the passing of the said resolution. The documents /declarations as mentioned in the said Rule 41 needs to be submitted before Regional Director along with the application.
8. Also, particulars as mention in Rule 41 (2) shall be submitted before the RD.
9. A list of creditors and debenture holders needs to be annexed with said application. Due amounts, claims and liabilities, contingent and uncertain debt details required to be annexed.
10. Further, the duly authenticated copy of the list of creditors and debenture holders shall be kept at the registered office the same can be verified and inspected during the ordinary hours of business.
11. The Company has to file form NO INC 25 A in vernacular and English language.
12. After submission of said details RD may seek additional information, details the same need to be submitted in the period of 15 days in E Form No. RD GNL -5. The applicant cannot file more than two resubmissions. RD may reject the application within a period of 30 days after the submission of the application.
13. If no order of approval, or rejection or resubmission has been passed by the RD then said the application is deemed to allow and automatically order would be passed.
14. If any objection has been received same shall be recorded in writing RD shall conduct hearing within a period of 30 days upon the receipt of the said objection. If any consensus reaches the Company can file application about the consensus.   The RD shall pass an order within a period of 30 days.
15. In the case where no consensus is received then, RD can reject the palliation within a period of 60 days.
16. Conversion shall not pass if any prosecution is pending against the Company.
17. No prosecution is pending or envisaged then RD shall allow conversion.
18. The Conversion order has to file in Form No. INC 28. Within 15 days upon receipt of the order.
19. The aforesaid procedure has been prescribed in the said rules. 

Conclusion

Conversion of Public Company into Private Company is lengthy and needs to adhere to various mandatory formalities as mentioned in the Act and Rules. However, after conversion into a Private Company, the Private Company shall have benefits with respect to minimum compliances. Public Company has to adhere and strictly abide by the various compliances. After the Conversion of Public companies into Private companies, there are fewer compliances. However, some precautions need to be taken during the conversion procedure. Some Companies decision regarding conversion into the private company is controversial so that though the statute permitted for the conversion of Public Company into Private Company all precautions need to be taken. Also, the information submitted before the Regional Director has to be correct. If there is a consensus between all stakeholders for conversion then the process for the conversion would go easy and smooth. However, sometimes shareholders also raised questions over the conversion procedure. National Company Law Appellate Tribunal in one matter clarified that only board approval is sufficed for the conversion and it is not necessary to obtain all shareholder’s permission. 

We have discussed all relevant and practical procedures in the said article pertaining to the conversion of a public company into a private company. However, it is advisable to seek the guidance of professionals during the aforesaid conversion 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.

The post Conversion of Public Limited Company into Private Limited Company appeared first on iPleaders.

This article is written by Srishti Kaushal, a first-year student in Rajiv Gandhi National University of Law, Punjab pursuing B. A. LLB (Hons.). It explains the rights given under Article 32, 33 and 34 of the Constitution of India. It also explains the right to constitutional remedies along with different types of writs available and the power of judicial review which the courts possess.

Introduction 

The Indian Constitution guarantees 6 fundamental rights to the citizens of India. This includes the right to equality, right to freedom, right against exploitation, right to freedom of religion and cultural and educational rights. The makers of the Constitution recognised the importance of these rights for preserving individual rights, building equitable society and establishing a welfare state.

They also observed that merely enumerating these rights in the Constitution is not enough to ensure their practical execution. Thus, to ensure that fundamental rights are not merely paper-based, they also provided for the Right to Constitutional Remedies as a fundamental right in Article 32 of the Constitution. 

The former chief justice of India, PB Gajendragadkar had observed that Article 32 is a “very distinguishing feature of the Constitution and serves as the cornerstone of the democratic establishment promised by the Constitution.” Clearly, the right to Constitutional remedies is a very important right granted to the citizens as it provides the citizens:

• This right allows the citizens of India to move to the Supreme Court if any of their fundamental rights are violated.
• It also empowers the higher judiciary to enforce these rights by issuing various writs. 
• It has also been decided that, unless expressly provided by the Constitution, this right can only be suspended as and when the Supreme Court decides. This means unless a national emergency is declared, only the Supreme Court of India has a right to suspend this right.

The significance of this Article is such that Dr.B R Ambedkar considered it the most important Article of the Constitution without which the Constitution would be a nullity. He considered it as the soul and heart of the Constitution.

Click Here

Power of Parliament to enlarge writ jurisdiction of the Supreme Court: Article 139 

Article 139 of the Constitution enlarges the writ jurisdiction of the Supreme Court. It increases the scope of Article 32. This is because unlike Article 32 which only allow the Supreme Court to deal with cases involving a violation of fundamental right, this Article states that the parliament can confer additional power upon the Supreme Court. 

Through this article, the Supreme Court is empowered to issue different writs for enforcement of any right other than that mentioned in Article 32(2). This means, that if the parliament allows, the Supreme Court can issue writs not only for the enforcement of fundamental rights but also for other Constitutional and legal rights. 

For instance, though the Right to property is not a fundamental right, under Article 139, if the parliament allows, the Supreme Court can issue writs for enforcing the violation of the right to property as well.

Articles 32 and 226: Judicial Review 

The Constitution of India is considered to be the most supreme law of the land. The Supreme Court has been conferred with the power of upholding its supremity by interpreting and protecting it. 

Judicial review refers to the power of the judiciary to interpret the Constitution and to declare void any legislative order or law which is not in conformity with the Constitution. This power has been given to the Supreme Court under Article 32 and to the High Court under Article 226 of the Indian Constitution.

According to these Articles, if the provisions of a law passed by the legislature go against the provisions of the Constitution, Supreme Court and High Courts have the power to declare them void to the extent of such contravention. 

Features of Judicial review

• The power of judicial review can be enforced in respect of laws, orders, and ordinances passed by both Central and State Government.
• Judicial review cannot be used for interpretation of laws incorporated in the ninth schedule of the Indian Constitution which provides certain land reform laws.
• Judicial review does not apply to any political issue.
• Judicial review is not applied by the Supreme Court automatically. Rather this power is only enforced when :
  • Any law or rule is specifically challenged before the Court or,
  • The validity of a particular law is challenged before the Court during the hearing of a case.
• When a law or a part of the law gets rejected as it is unconstitutional as a result of judicial review, it ceases to operate from the date of judgement.

To understand this provision better, we must refer to some case laws. 

Appointment of CVC- Quashed

In the case of Centre for PIL v Union of India, a petition was filed under Article 32 of the Indian Constitution. It questioned the appointment of Shri PJ Thomas as the Central Vigilance Commissioner. He had been accused of playing a big role in the cover-up of 2 G Spectrum allocation and was thus accused under the IPC and the Prevention of corruption act, 1988. The petition argued that the courts must exercise judicial review and remove him from the post as he was unfit for it.

The court held that the judiciary cannot try to make merit review and it must limit itself to only making judicial review. To do this the court said it would only consider the legality of the appointment. As per Section 6, subsection 3 of the Prevention of Corruption Act, the CVC can be removed if he has been convicted for an offence which causes people to raise moral questions. Keeping this in view, the Supreme Court quashed the appointment of Shri PJ Thomas as the CVC. 

State of W.B. v. Committee for Protection of Democratic Rights, West Bengal, AIR 2010 SC 1476

In the case of State of West Bengal v Committee for Protection of Democratic Rights, the petitioners had filed a special leave of appeal in the Supreme Court against an order made by the High Court of Calcutta under Article 226. In the order, the Court allowed the Central Bureau of Investigation to take over the investigation of state police, because the state police have made no active efforts to investigate the alleged offence.

Moreover, the court had held there was an allegation made that the lack of effort by state police was because the ruling party was trying to save its image, and thus, to uphold the principles of justice the investigation should be handed over.

The question of law which arose was whether the High Court can direct CBI, which was established under  Delhi Special Police Establishment Act, to investigate a cognizable offence which occurred in the territorial jurisdiction of another state, without the consent of that state.

The court held that in exceptional circumstances, the High Court can direct the CBI to investigate an offence which lies in the jurisdiction of the state through the power of judicial review. This is important so as to ensure that the fundamental rights of citizens are upheld and those who violate it are appropriately punished (in this case the Article 21 as  many lives were arbitrarily taken away), and no statutory provision curtails the court’s power of judicial review.

Pratibha Ramesh Patel v. Union of India, AIR 2013 SC 1561

The case of Pratibha Ramesh Patel v. Union of India highlighted the judiciary’s power to prevent the misuse of Article 32. In this case, the petitioner filed a petition to declare certain provisions of the Security Interest and Recovery Debt Laws Act, 2012 as unconstitutional as these provisions brought multistate cooperative society under SARFAESI Act. He argued that doing this was beyond the powers of parliament and encroached upon the powers of the state legislature, thereby undermining the federal structure of the Constitution. 

The court observed that a similar writ petition had already been filed by the petitioner in the Bombay High Court under Article 226 of the Constitution. Further, it was also observed that though the petition was still pending under the High Court, it had given an interim order which had worked itself out.

The Supreme Court dismissed the petition and asked for compensation of Rs. 1,00,000 from the petitioner. It said that if such a remedy has been invoked in the High Court, another writ petition on an identical set of facts cannot be filed in the Supreme Court as it results in wasting the time of the Court.

What is a Writ?

In its earliest form, a writ was simply a written order given by the English monarch ordering a specific person to perform a specified action or task. In common law, it refers to a formal written order issued by a judicial body.

In India, the power to issue a writ is given to the Supreme Court under Article 32(2) and the High Courts under Article 226. However, the high Courts have a broader power in this regards. This is because, the High Courts can issue writs for enforcement of all rights ( including fundamental rights, Constitutional rights and other legal rights)  granted to a citizen. But, the Supreme Court can issue writs for enforcement only of fundamental rights granted to the citizens.

For instance, in the case of Narayan Prasad v. State of Chhattisgarh, two brothers approached the Chhattisgarh High Court under Article 226 for enforcement of their right to property granted under Article 300-A of the Constitution. They had been denied a no-objection certificate for transferring their property by a special tribunal. The Court held that they should be granted the certificate as it is their legal and constitutional rights.

Types of Writ 

The Supreme Court and the High Court have the power to issue 5 writs. These are: 

1. Habeas Corpus

The term ‘Habeas Corpus’ is a Latin term which literally means ‘to have the body’. This writ is issued to relieve a person from unlawful detention. If a person is detained illegally and against his consent, he can file an application in the Supreme Court or High Court.

The scope of this writ was increased by the judiciary which was clarified in various cases like Sheela Barse v. State of Maharashtra that the doctrine of locus standi (right to approach the Court) is relaxed in habeas corpus cases. This means that if a detained person cannot plead for his release, his family, friends or any other person can file an application and approach either of the two courts for the same. Hence, this writ helps in protecting the liberty and freedom of citizens. 

If the Court is satisfied with the application given, it can issue the writ of Habeas Corpus. Through the writ, the Court orders the presence of the person who had detained another person, ask them to provide a justifiable ground for the detention and orders a release of the detained person if it finds that the detention is not legally reasonable and justifiable. The detention is illegal if:

  (1) The due procedure established by law was not followed for detaining a person or 

  (2) Detention was not in accordance with the law.

The application of this writ can be better understood by looking at the case of T.V. Eachara Varier vs Secretary To The Ministry Of Home, popularly known as the Rajan Case where a young boy, P Rajan was taken into police custody while he was studying in the college campus.

The principle of the college informed the father of the child about his arrest. This was done during the period of national emergency and for months, the whereabouts of the boy was not told to his family. In this case, the Court observed that P Rajan had been detained without any justification and issued the writ of Habeas Corpus for production of Rajan before itself. 

There are certain circumstances where the writ of Habeas Corpus cannot be invoked. These include:

• If the person is detained as a result of a sentence or order given in a judicial proceeding.
• If the person is put into physical restraint under the law unless the law is declared unconstitutional.
• If the detained person has already been set free.
• If the person who detained another person does not come under the territorial jurisdiction of the Court in which the application has been filed.
• If the writ is filed during the emergency situation. However, it must be understood that the writ of habeas corpus would be maintainable only for the enforcement of fundamental rights granted in Articles 20 and 21 of the Indian Constitution even during the emergency situation.

2. Mandamus

The Latin term ‘Mandamus’ means ‘we command’. The writ is issued in the form of a command given by the judiciary which directs a constitutional, statutory or non-statutory body to perform a public duty which has been imposed upon it by the law. It can also be issued by a superior court commanding an inferior court to perform its duties.

This writ is also issued to prevent the authority from doing a particular act, which it is not legally entitled to do. The writ of Mandamus cannot be issued against a private individual who is not legally required to perform the public duty. 

Thus if A is a police officer who is not performing his duty of registering a complaint brought to him by B, the Court can issue the writ of Mandamus, compelling him to register it. However, if A is not obligated by law to perform a duty, then the writ cannot be issued against him. 

The writ of mandamus is issued on the following grounds:

• The petitioner has a legal right 
• The legal right of the petitioner has been infringed
• The legal right has been infringed because of the non-performance of a legally required duty by a public authority or a private individual who is acting under public authority.
• The petitioner has demanded the performance of the duty but the public authority has refused to perform it. 

The Courts have given importance to the rule of locus standi in cases involving this writ. However, in certain cases, public-spirited persons are allowed to apply for this writ on behalf of other people whose rights have been infringed. It is issued when there is an error of jurisdiction or error of law or violation of the principles of natural justice.

In the case of Bhopal Sugar Industries Ltd. V. income Tax Officer, the Income Tax Appellate Tribunal gave the respondent, an income tax officer certain direction for ascertaining the market value of sugarcane grown by the appellant in petitioners farms. However, the respondent did not follow these directions.

The Supreme Court held that refusal to carry out an order given by a superior tribunal in the exercise of its appellate jurisdiction violates the principles of justice and leads to chaos. Thus, the writ of Mandamus was issued directing the income tax officer to perform his duty in accordance with the order given by the Income Tax Appellate Tribunal.

However, when the act for which mandamus is sought has been completed or right of petitioner has lapsed or any other situation where issuing of the writ would be meaningless, the Court can refuse to issue it. It must also be mentioned that there are some situations where the writ is not granted. These include:

• It cannot lie against the following people:
  • President or the governor of a state in their personal capacities.
  • A practising Chief Justice
  • The officials involved in various stages of conducting the elections to the parliament or state legislature. 
  • Private person or body 
• If the duty to be performed is discretionary, not mandatory. 
• For enforcement of a private contract between parties.

3. Certiorari

The Latin expression ‘Certiorari’ means ‘to certify’. It is issued in the form of a command by a superior court ordering an inferior court or any other inferior quasi-judicial body to transmit the records of a proceeding pending before it to the superior court. This is usually done in the following circumstances:

1. When a superior court believes that the Inferior Court does not have jurisdiction to decide the matter. 
2. When the inferior courts violate the principles of natural justice while deciding the matter.
3. When the inferior court decides on a matter procured by fraud.
4. When the lower court makes a wrong decision because of an error of law which is apparent on the face of the record. This means that if the inferior court makes a decision based on a clear disregard of a statutory provision, the superior court can issue the writ of certiorari. However, if the decision is made because of errors in facts, then the writ is not applicable.

For example, if the High Court believes that the District Court which heads a case did not have monetary jurisdiction to decide upon the matter, and yet the district court has taken up the matter, the High Court can issue this writ and quash the district court’s order.

However, the superior court only has advisory jurisdiction (power of the court to give an opinion on an issue) in case the writ of Certiorari is issued. It does not exercise appellate jurisdiction (The power of the court to hear cases on appeal from the lower court) in these cases. 

It must also be understood that the petition for Certiorari can only be made by the person who has been aggrieved. Thus, the doctrine of locus standi is very stringent in the matters of certiorari. For this reason, it is considered as a proceeding in personam.

The writ of certiorari is very important because it acts as a corrective remedy. For instance, in the case of Rafiq Khan v. State of U.P., the appellants were convicted under sections 352, 447 and 426 of the IPC by the Panchayati Adalat. They approached the Sub-Divisional Magistrate for the same and he modified the order given by the Panchayati Adalat. Allahabad high court held that the Sub-divisional Magistrate did not have a legal right to modify the order and quashed the modified order.

Before moving forward to discuss the other types of writs, we must understand the difference between Article 226 and 227 of the Indian Constitution. Very often petitions are filed under Article 226/227 as one petition. However, these two Articles are quite different in scope. While Article 226 gives the High Courts the power to issue writs, Article 227 talks about powers of general superintendents of High Courts over the Subordinate Courts.

This power allows them to keep a check on the subordinate courts and ensure that they do not make errors of jurisdiction. Hence, confusion regarding the writ of certiorari under both these Articles arise. While passing a writ of Certiorari under Article 226, the courts can only quash the order given by the subordinate court. Under Article 227 however, besides quashing the order, the High Court can also give appropriate directions to the inferior courts on the basis of the facts of the case and thus guide the courts.  

4. Prohibition

The term ‘prohibition’ literally means ‘to forbid’. This writ is also known as ‘stay order’. It is issued by a superior court to prevent an inferior court or a quasi-judicial body from continuing its proceedings. It is issued in circumstances such as:

• When the inferior court or quasi-judicial body does not have jurisdiction to hear the case.
• When the inferior court or quasi-judicial body violates the principles of natural justice.
• When the inferior court or quasi-judicial body is not acting according to the provisions of the law.

The writ of prohibition, though similar to the writ of certiorari, is different in its nature. While the writ of certiorari is corrective in nature, the writ of prohibition is preventive in nature. This writ is issued by the superior court while the judicial proceeding is still going on in the inferior court or quasi-judicial body and before the final order is declared.

To understand this writ, one can refer to the case law East India Company Ltd. v. the Collector of Customs. In this case, the Supreme Court of India passed the writ of prohibition disallowing the respondent to proceed with the inquiry in an inferior tribunal on the ground that the proceedings were outside the tribunal’s jurisdiction.

5. Quo Warranto

The phrase ‘Quo Warranto’ means “ by what authority’.This writ restrains a person from acting in an office when he is not entitled to and has wrongfully usurped the position. The basic fundamental purpose of this writ is to ensure that an unlawful claimant does not take over a public office, as this can harm the public and takes away opportunities from those people who actually deserve to take over that office.

In the matters involving the writ of quo warranto, anybody can file the petition, even if the person who is filing the petition has not been personally aggrieved. When the writ of Quo Warranto is issued, certain essentials need to be fulfilled. These include:

• The office which has been wrongfully assumed is a public office, and not a private one.
• The public office has been created either by a statutory provision or the Constitution.
• The office is of a permanent nature and is not made for a temporary term.
• The person against whom the writ is to be issued is in possession of the office.
• The person against whom the writ is to be issued is one who has been disqualified from a public office, yet continues to possess it.

Thus if A is not qualified and has illegally taken possession of the office of a police officer, the Court can issue the writ of Quo Warranto and challenge this possession.

However, it must be observed that the Court has complete discretion in issuing this writ. Thus, if the court feels that issuing of this writ would not be beneficial, it has the discretion to not issue it. This can be understood with the help of the case.

In the case, of P.L. Lakhan Pal vs A.N.Ray the appointment of Justice A.N. Ray as Chief Justice of India was challenged because of lack of seniority. However, the court did not grant the writ of quo warranto because it would have been futile since the 3 other judges who were senior to him had resigned after his appointment and consequently, he had gained superiority over all other remaining judges in the Supreme Court. 

Locus Standi

In Law, Locus Standi is the right of a person to bring legal action to the court. As per the strict approach of Locus Standi, the person has this right because he has sufficient connection to the case in hand. You can understand this concept better with the help of an illustration. If A’s right to equality has been violated, then because of locus standi, A can approach the Court of Law and bring a legal action to get remedy for this violation.

This practice of locus standi is very strict. Before the 1980’s only the affected party had the locus standi to file a case in a Court of law. However, this was found to lessen the scope of justice and a need for its change was observed during the post-emergency period. Consequently, the Supreme Court modified this strict practice of locus standi to tackle the problem of access to justice through various cases.

For instance, in case of Bandhua Mukti Morcha v. Union Of India, the petitioner initially faced a problem because of locus standi since it was an organisation not directly suffering because of bonded labourers working in stone quarries in Faridabad. The Court observed that there is no specific method of proceeding given in Article 32 and writ petition can be initiated in both formal and informal ways.

Thus, the question of locus standi was raised in this case and the court said that where a disadvantaged class does not have access to justice, the court can relax the strict principle of locus standi and allow a public-spirited citizen or group of citizens to approach the court on his behalf. Thereby, it allowed the petitioner to file the writ petition and allowing them to help the bonded labourers.

It must also be referred here that the Supreme Court has also been given epistolary jurisdiction which allows it to convert any informal petition made through letters, telegram etc, into a writ petition and hear the matter. For example, as a result of an open letter written by four eminent law professors, Vasudha Dhagamvar, Lotika Sarkar, Upendra Baxi, and Kelkar against the judgement given in Tuka Ram v. State of Maharashtra regarding the meaning of consent involved in sexual acts, the rape laws in India were amended.

Public interest litigation – A dynamic approach

Public Interest Litigation (PIL) refers to litigation undertaken to redress public grievances and protect and promote the interest of the society at large. It allows any public-spirited person to approach the court and file a petition for a public cause, thus relaxing the strict rule of Locus Standi.

This can be better understood with the help of an illustration: A is a publicly spirited person who witnesses that an organisation is employing large no forced labourers, who due to poverty find it difficult to approach the court. PIL allows A to file a petition so that the right of these labourers can be upheld and they can escape the bonds of forced labour, even though he is not personally affected by such violation. 

Before moving further, we must look at the characteristics of PIL. These are as follows: 

Anybody can file a PIL in the Supreme Court under Article 32 of the Constitution and in the High Court under Article 226 of the Constitution and the court of a magistrate under section 133 of CRPC. As discussed above, the PIL process can even be initiated by the court after it receives a letter, postcard, newspaper report or an email to it regarding a public issue.

These can be treated as a writ petition and the court can take action upon it, once it is satisfied that the letter is sent by the aggrieved person, a public-spirited person or a social action group dedicated to ensuring the enforcement of legal and Constitutional rights of disadvantaged people.

At times, the courts can also suo motu cognizance in such matters. This means that courts can by themselves initiate proceedings against a party. For instance, the suo motu cognizance by the court in matters of Delhi water pollution and directed the state to finalise in an action plan within 10 days.

Public Interest Litigation has gained a lot of importance. This is because:

• It helps in promoting the right to equality, protect the right to life and liberty and uphold the other fundamental rights of people who cannot represent themselves.
• By ensuring that the fundamental rights of all are protected, it allows promoting more human rights such as the right to education, medical care, housing, clean environment, speedy trial etc.
• It expands the scope of justice by allowing the courts to set up commissions to look into the matter and collect relevant evidence if a party is unable to do so because of economic backwardness. 
• Because it is inexpensive in nature, it enables the court to provide a remedy to a greater number of people.
• It enables the court to ensure that the rights of minorities are protected.
• It also helps in raising public awareness about societal issues through increased media coverage.

Criticism of PIL

Throughout the years’ many criticisms have emerged with respect to PIL. Some of these are:

1. The courts overstep their boundaries, particularly in the social and economic domain by laying down complex policies through PIL. Many people believe that other branches of the government are more equipped to formulate and analyse these policies. This is actively observed in cases related to pollution, sexual harassment, torture, management of CBI etc.
2. Many people say that courts have taken undue advantage of the popularity that they have gained from PIL by expanding its powers and shielding itself from scrutiny. 
3. Some people also argue that courts have taken undue advantage of the inexpensive PIL process because of which multitude of cases come in. They say that courts spend a lot of time on frivolous cases which improves their popularity. For example, the court entertained a PIL to rename ‘Hindustan’.
4. PIL have led to an increase in the burden of the workload of the superior courts, abuse of judicial power and increased the gap between the promises made and the actual reality.
5. It is also being used by individuals for their private purposes, covered under the umbrella of public grievances to gain popularity.
6. Moreover, PIL is being overused these days. As a result, its initial purpose of enforcing human rights of disadvantaged groups might get defeated entirely.

Abuse of PIL not to be allowed: Guidelines

It has been observed that the tool of PIL granted to the citizens is being abused. This is seen when frivolous cases are filed in the courts under the purview of PIL since it does not require heavy court fees. This leads to ignorance of important cases, which are many-a-times pushed to the background because of the frivolous cases. Thus, real justice is not achieved.

To overcome such abuse, certain guidelines have been laid down in the case of State of Uttaranchal v Balwant Singh in which the court imposed Rs. 1 Lakh on the respondents for filing a frivolous petition. The guidelines given by the court are as follows:

• The courts must encourage only genuine and bona fide PIL’s. All extraneous PIL applications must be discouraged. It must also be ensured that there is no motive of personal gain because of which a petitioner is filing this petition.
• All High Courts must devise their own procedures for dealing with PIL’s and formulate rules to encourage genuine PIL’s. The High Courts which have not formulated these rules must complete the formulation within 3 months and send a copy to the secretary-general of the Supreme Court.
• The court must, prima facie (on the face of it), verify the credentials of the petitioner before entertaining a PIL.
• Before entertaining the petition, the courts must prima facie be satisfied regarding the correctness of the contents of the PIL petition.
• The courts must ensure the PIL petition involves substantial public interest before deciding to entertain it.
• The courts must ensure that those PIL applications which involve larger public interest, are more grievous or are more urgent, are given priority over the other applications.
• The courts must impose exemplary costs if the applications filed is found to be frivolous.

Also, in the case of PN Kumar and another v Municipal Corporation of  Delhi, the Supreme Court of India held that if a writ petition is pending before the High Court, a similar writ petition cannot be filed in the Supreme Court. In such cases, the parties can only move to the Supreme Court in appeal. This is because the Supreme Court is already highly burdened. Moreover, the High Court Judges are judges of eminence and have the necessary skills to look into such matters.

Besides these, the Courts have laid down the categories which will be entertained as PIL. These include:

1. Bonded Labour matters,
2. Neglected Children,
3. Petition from jails complaining of harassment, death in jail and speedy trial,
4. Petition against police for refusing to register a case, harassment for bribe, kidnapping, rape,
5. Petition against the atrocities faced by women,
6. Petition against harassment of people belonging to Scheduled Castes and Scheduled Tribes,
7. Petitions pertaining to the environment,
8. Petition from riot victims,
9. Family Pensions.

These regulations help in limiting the abuse of the machinery of PIL and enable the court to only use PIL to achieve its actual purpose of ensuring justice.

Judicial Activism

Judicial activism is a dynamic process which allows the judiciary to depart from the existing laws and precedents to encourage the formulation of new social policies which fulfil the need of the hour.

Justice P.N. Bhagwati laid the foundation of this concept by allowing the citizens to initiate a PIL on the basis of a postcard or letter, in order to promote the socio-economic development of the society.

Though the concept of judicial activism has received criticism on account of overthrowing the principle of separation of powers and allowing the judges to rewrite policies as per their whims and fancies, its importance cannot be undermined. It allows the judiciary to correct the injustice when other branches of the government fail to do so, particularly in issues like protection of civil rights, political unfairness etc. It also allows judicial scrutiny into the working of hospitals and prisons which help in upholding basic human rights.

This can also be understood by looking at the case of Francis Coralie v. Union Territory of Delhi wherein the court interpreted the word ‘life’ in Article 21 (Right to life) and said it is not restricted to mere existence, but it also includes the right to live with human dignity and have the basic necessities which include adequate nutrition, clothing, shelter, freedom to move etc.

Power to award compensation under Art. 32

Article 32 has given a lot of power to the Supreme Court to protect the fundamental rights of the citizens of the country. In the case of Rudul Shah v. State of Bihar, the question of liability of the state to pay compensation regarding unlawful detention and violation of fundamental rights was raised.

It was held that Article 21 would not truly give justice if the powers of the court were limited to only passing orders for illegal detention. This is because monetary compensation encourages future prevention of such violation. 

In the case of MC Mehta v. Union of India, the Supreme Court held that Article 32 of the Constitution does not limit the powers of the judiciary and allows it to provide an appropriate remedy, which can be given through providing compensation. The Court said that not enabling it to do so would render Article 32 futile. 

The court held that the Supreme Court could entertain claims for damages in respect of violation of fundamental rights and has the power to award compensation in appropriate cases. It further explained that appropriate cases are those in which the infringement of fundamental rights is gross and such violation either effect a large number of people or is highly unjust and oppressive because of the economic and social backwardness of the person whose right has been violated.

There have been many case laws such as Bhim Singh v State of Jammu and Kashmir ( compensation given: Rs. 50000), Saheli v. Commissioner of police (Compensation given: Rs. 75000) etc where courts have awarded compensation under Article 32. In certain cases of violation of fundamental rights, the courts have also disregarded the sovereign immunity principle and made the state liable to pay compensation as a public law remedy.

The reason given for this is that if the state is unable to protect the fundamental rights which it has promised a citizen, it must compensate him/her for breaking the promise. Also, in many cases, such violation leads to permanent loss of income and thus the citizen must be compensated, Hence, by awarding compensation in such cases, courts ensure that true values of justice prevail in the nation and no entity takes undue advantage of its authority.

Corruption in Public Life and PIL

In recent years, incidences of corruption have reached their peak in India. Moreover, more often than not, the Central Bureau of Investigation and other agencies have failed to investigate these cases and bring justice to those wronged. PIL has, however, empowered the citizens of the country to bring to light the corrupt practices of the officials in the country. To understand this, we shall look at some case laws:

In the case of Common Cause, a registered society v. Union of India and others,  the petitioners filed a writ petition against Captain Satish Sharma (who was at that time the Union minister of petroleum and natural gas) for his corrupt practices. The PIL was initiated on the basis of a news report which stated: “In Satish Sharma’s reign, petrol and patronage flow together”.

Following this, the court asked the Solicitor General to carry out an investigation regarding the same. The investigation found out that Captain Satish Charma corruptly used his discretionary quota of allocating petrol outlets and allotted them to various officials working with him. The court cancelled all of his 15 allotments and issued a show-cause notice to him. 

Another case which must be referred to is Centre for Public Interest Litigation v. Union of India and Others. In this case, it was alleged that  A. Raja, the former minister for Communications and IT, was following corruptive practices in issuing licenses to some favourable companies. Investigations carried out by the Comptroller and Auditor General of India, The Central Bureau of Investigation and Telecom Regulatory Authority of India observed that government had gained approximately 30 billion rupees in this allocation. 

The Supreme Court cancelled all the 122 licences allotted by A. Raja. It further said that A Raja gave away important national assets and favoured some companies at the cost of public exchequer. It also held the allotment to be unconstitutional and arbitrary.

Effect of the existence of Alternative Remedy 

While interpreting the Article 226 of the Constitution, the Courts have imposed a rule of restriction upon itself. This means that in cases where alternative remedies are available to the litigants, High Courts would not have jurisdiction to entertain the petitions under Article 226.

Such alternate remedy can be in the form of either:

• Normal forums following the hierarchy of Courts, or
• A suitable forum provided in a statutory provision, or
• A suitable forum existing otherwise.

This can be better understood by looking at the case law of U.P. State Bridge Corporation Ltd And Others. Vs. U.P. Rajya Setu Nigam S. Karamchari Sangh. In this case, the service of a workman was terminated since he was absent for ten continuous days on the grounds that he did not follow the order which asked for the same. The man filed a writ petition in the High Court but the petition was dismissed on the grounds that the case falls under Industrial Disputes Act, 1947 and should be taken up as an industrial dispute.

The limitation prescribed for seeking a remedy under Article 32

In the case of Trilokchand Motichand v. H.B. Munshi, the petitioners had filed a writ petition under Article 226 of the Constitution in the High Court to declare Section 21(4) of the Bombay Sales Tax Act, 1953 unconstitutional. This Article allowed the sales tax officer to forfeit a given sum if the condition on which it was given is not fulfilled. However, the court dismissed the petition on the ground that the petitioners had defrauded their customers.

However, The High Court struck this section down in 1967 stating that its violative of Article 19 (1) (f),(now omitted), of the Constitution of India. The petitioners pleaded that they must be given back the money as at the time of the petition, they were unaware of the grounds of the violation. However, the court held that mistake of law is not sufficient grounds to look into the case and that they had surpassed period of limitation. 

In this context, The Supreme Court laid down certain limitations for seeking a remedy. These are:

• In case the petitioner has already approached the High Court under Article 226 of the 

Constitution and the court have exercised its jurisdiction, the Supreme Court must refrain from acting under Article 32 of the Constitution.

In such cases, the Supreme Court must discourage the petitioners from filing a new petition and rather insist upon appeal.

• While inquiring into ‘belated and stale claim’, the court must give considerable notice to petitioners neglecting their own claims for a long-time period and also the neglect of the rights of other innocent people which happened because of such neglect. This means that the court introduced the concept of a period of limitation into seeking a remedy under Article 32. However, it was also held that an ultimate limit cannot be placed as the period of limitation would differ from case to case and the Limitation Act, 1963 would not apply to such petitions.

The distinction between Articles 32 and 226

Res Judicata

The principle of Res Judicata means that once a judgement has been pronounced by a court of competent jurisdiction on a given set of facts, it is binding between the parties unless the judgment given is modified or reversed in an appeal, revision or any other procedure applicable by law. 

Under Article 32, the courts have limited their own jurisdiction by applying the concept of Res Judicata. This means that a person cannot apply for successive writ petitions with the same facts for the same cause of action. Also, a person cannot move to the Supreme Court with a new writ petition on the same facts if a judgement has been given under Article 226 by the High Court. 

Illustration: A applies for a petition challenging the validity of tax assessment for a year and an order is given on the same in the High Court. As per the principle of Res Judicata, A cannot apply for new petition in another court.

However, there is an exception to the application of this principle under Article 32. This principle does not apply to cases of Habeas Corpus. Thus, in cases of illegal detention, a person can file a successive writ petition on the basis of new facts.

Restrictions on Fundamental Rights of Members of Armed Forces

Article 33 of the Indian Constitution allows the parliament to place restrictions and modify the fundamental rights granted to the members of armed forces, police forces, members of intelligent agencies and other such services.This has been provided so that the discipline, order and efficiency can be maintained in the army.

To understand this provision better, we should look at some case laws. In the case of Mohammad Zubair v. Union of India, the petitioner was a Muslim soldier who wanted to keep his beard as his faith did not allow him to cut it.

However, this was not allowed by the Air Force Policy and thus his plea was rejected by his commanding officer and he filed a writ petition in the Punjab and Haryana High Court in this regard.

The court held that this order was legal as even though Constitution recognised an individual’s right to faith, Article 33 allows the parliament to restrict this right as Uniformity of personal appearance is essential to ensure discipline in the armed forces, and thus the petition was dismissed.

However, Article 33 does not signify that the parliament can deny rights to the members of armed forces as per its whims and fancies. The wordings of Article 33 clearly say that the rights of such members can only be modified for two reasons which are :

(1) To ensure discipline and

(2) To ensure proper discharge of their duties.

This limitation was explained in the case of Union of India and others v. L.D. Balam Singh. The Court said that while Article 33 has allowed parliament to put restrictions on the fundamental rights of the members of the armed forces and forces responsible for maintaining public order, this does not mean that army personnel are denied the constitutional privileges.

Further in Lt. Col. Prithi Pal v. Union of India, the court also said that the process of placing limitations on the rights of members of the armed forces should not go so far that it creates a class of citizens not entitled to the benefits of the Constitution. It is the duty of the courts to strike a balance between ensuring discipline in armed forces personnel by modifying some of their rights so that their duty to maintain the rights of others citizens is not hampered, and providing them with enough rights so that they have access to civilised life.

Hence, clearly, Article 33 helps in ensuring not only discipline and efficiency in the armed forces but also allows maintenance of the basic rights of armed forces so that their undue advantage is not taken.

Martial law

The Indian Constitution does not define the term martial law. The term has been borrowed from English law and in its ordinary meaning simply signifies military rule. Imposition of Martial law signifies a situation where the authority to govern a place is taken over by the military forces of the country.

These authorities impose their own rules and regulations upon the civilians. Such rules are framed outside the ordinary laws which exist in the country. Martial Law is usually imposed in a very grave situation like war, failure of government etc and till date has not been imposed in India.

Restriction of Fundamental Rights while Martial Law is in force in the area

Article 34 of the Constitution of India impose restrictions of fundamental rights given to the citizens while martial law is in force in a particular area. It states that when martial law is imposed, the parliament can indemnify the men providing services to the state against any act done while such imposition, provided that the act done was for the purpose of maintaining and restoring order in that area. It also allows the parliament to validate any sentence passed under this period. 

This indemnity provided cannot be challenged in the courts of India on the grounds that it violates a fundamental right. This is because, when martial law is imposed, the ordinary courts are suspended and all cases (including civil cases) are prosecuted in the military courts. Hence, the Supreme Court and the High Courts do not have any appellate jurisdiction over orders passed by the military courts in this situation. 

Power to make laws regarding fundamental rights

Article 35 of the Indian Constitution prohibits the legislature from making laws regarding Article 32, Article 33 and Article 34 and the Constitution, It also prohibits the legislature to make laws providing for punishment given to anyone for violating any fundamental rights. Instead, It gives this power only to the parliament.

Conclusion 

The Article 32 and Article 226 of the Constitution have allowed the courts to enlarge the access to justice and have revolutionized the idea of Constitutional jurisprudence. Judicial review has proved to be a very healthy trend which has made the Constitution a dynamic document, more suitable to the society today. Also, PIL and Judicial Activism have allowed the members of the society to help each other and offer justice to the disadvantaged. They have also allowed the judiciary to take a goal oriented approach while resolving cases.

Though the judiciary has been given vast powers under these Articles, it must be ensured that judiciary acts like the lighthouse and the destination itself. While passing orders it should also be ensured that judiciary works in a self- restrained manner and is not overstepping its boundaries. 

Besides these, Article 33 of the Constitution has enabled the State to ensure that the people providing services to the state, i.e., those who are members of the armed forces, police forces etc are not falling behind on their service and using fundamental rights as an excuse, by enabling the parliament to restrict some of their fundamental rights. At the same it has also not given unlimited power to the parliament for the same.

Article 34, on the other hand, goes a long way in ensuring that the state can properly recover from grievous circumstances by allowing the imposition of martial law and putting restrictions on the fundamental rights of people.

References 

• http://www.legalservicesindia.com/Article/1844/Public-Interest-Litigation—A-Critical-Evaluation.html
• https://timesofindia.indiatimes.com/home/education/news/Principle-of-Res-Judicata/Articleshow/748399.cms
• http://www.legalservicesindia.com/Article/2570/Remedy-of-Compensation-under-Article-32.html
• http://www.legalservicesindia.com/Article/2019/Judicial-Activism-and-Judicial-Restraint.html
• https://blog.ipleaders.in/right-to-Constitutional-remedies/
• https://blog.ipleaders.in/writ/#Prohibition

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 Article 32-35: Right to Constitutional Remedies & Restrictions on Fundamental Rights appeared first on iPleaders.

This article is written by Devansh Sharma, 1st-year Student, at Law School, Banaras Hindu University. This article deals with the provisions related to the Union Executive.

Introduction 

A few days ago, helping my younger brother at the subject of civics, I was bombarded with questions like why is the president not the real head?, Why are all leaders not allowed to ministers?, Why is there a need for a party election and not individuals standing face to face? And many more. Though I was able to answer many, some really made me scratch my head. Though the concept of Parliament and Union Executive seems simple, it has its own intricacies. This made me look through all the provisions and laws relating to the executive. 

So, let us discuss the provisions and try to understand the form of the executive wing of the government of our country.

Parliamentary form of Government

Before talking of the Parliament and Union Executive, let us understand the form and nature of the Indian government. The Structure of the Indian government can be understood by the following flow chart:

India is a form of Parliamentary Government. It is a form of government in which the executive is responsible and answerable to the legislative. It is also called the Cabinet Government due to the concentration of executive powers in the Cabinet. The Executive is a part of the Legislative.

This form of government was basically preferred by the leaders as:

• Leaders were aware of such a form of government.
• This government was considered a more responsible government as in this form of government, the executive is answerable to legislative and the legislative is answerable to the citizens.
• This type of government prevents Authoritarianism.
• This form helps to get representation from a Diverse Group of people.
• This form of government remains laden with the availability of Alternate Government.
• In this form of government, the head of the state holds a ceremonial position and is the nominal executive. For example, the President
• The real head of the State is the Prime Minister, who is the real executive. 
• There is a majority party rule in such a form of government.
• There is always a Parliamentary Opposition to maintain a check on the actions of the ruling government.
•  In this form of Government Civil Servants are Independent.

This is a famous concept of government followed in other countries like Japan, Canada, Britain. This form of government in India was majorly inspired by Britain.

Opposite of such a form of government is the Presidential form of Government. In this government, the President is answerable to citizens rather than the legislative.

The President (Article 52)

The first and foremost part of the Executive is the President. Article 52 states that there shall be a President of India. The President is considered the Executive head of the country. All the Executive business of the country is carried out in the name of the President.

So the question arises that if President is the executive head and all actions are in his name, and the President has to carry out many functions, then can there be the performance of an act not mentioned in any specific legislation by the Executive? 

The same was answered in the case of Ram Jawaya Kapoor v. the State of Punjab, the Government invited textbooks from authors for approval. When textbooks were approved, the authors were made to enter an agreement. According to this agreement, the copyright of these books vested solely in the Government. The authors only got  5% royalty on the sale of the textbooks. The Government took all the publishing, printing and selling rights of the books in their own hands.

The Court held that these provisions were ultra-vires to the constitutional power. The government being an executory body did not possess the power to enter into that activity or trade without specific legislations.

No restriction on the executive powers is defined in the Indian Constitution. The Court held that the executive cannot be restricted to mere implementations of legislations. There is a strict separation of powers but no strict separation of functions.

Qualifications: Article 58

After knowing that President is the Executive Head of the entire nation, you might too aspire to become a president. So let’s analyze the eligibility and all the specific requirements, you would be needing to become the President of India?

Article 58 talks about the eligibility of a person to become President of India. It says that a person is eligible for election as President if he:

• is a citizen of India;
• has completed the age of thirty-five years;
• is qualified for election as a member of the House of the People.

A person can be disqualified for election as President if he holds any office of profit under 

• the Union of India  or;
• the Government of any State or;
• under any local or other authority subject to the control of any Government of India.

Condition of President’s Office: Article 59

The eligibility to become the President might seem simple but the conditions his office are quite strict. Article 59 of the Indian Constitution talks about the conditions of the President’s office. It says:

• The President cannot be a member of either House of Parliament or of any other House of the Legislature of any State.
• If he is a member of either House of Parliament or a member of a House of the Legislature of any State, he will need to vacate his seat in that House on the date of entering into his office as President.
• The President shall not hold any other office of profit.
• The President shall be authorized to the use of his official residences without rent.
• He shall be also authorized to emoluments, allowances, and privileges determined by Parliament.
• The emoluments and allowances of the President cannot be diminished or reduced during his term of office.

Official residence, emoluments, and allowances of President

Apart from all these conditions and rules, you might crave for some advantage of being the President. Well, the President of India is also entitled to certain allowances and privileges, as he is the first citizen of the country. The President of India is entitled to rent-free accommodation, allowances, and privileges by law. He is also entitled to:

• Free medical facilities;
• Free accommodation;
• Free treatment for life;
• The official state car of the President.

The salary of the President has undergone several changes since independence. Some of these changes were:

• In 1951, the President of India used to get a salary of Rs. 10,000 and 15000 rupees as an allowance.
• In 1985, the President of India used to get a salary of Rs. 15,000 and 30000 rupees as an allowance.
• In 1989, the President of India used to get a salary of Rs. 20,000 and 10000 rupees as an allowance.
• In 1998, the salary was increased to Rs. 50,000In 2008, the salary was increased to Rs. 1,50,000.
• In 2016, the salary was increased to Rs. 5,00,000.

Rashtrapati Bhavan is the President’s official residence, including reception halls, guest rooms, and offices. It is the largest residence of any head of state in the world (You will get to live in it. After all, you have become the President of the largest democracy of the world).

Election of President: Article 54

So, if you think that who would vote for you in the Presidential elections? 

The answer lies in Article 54 of the Constitution. It deals with provisions relating to the election of the President. It says that the President must be elected by the members of an electoral college. The electoral college consists of the elected members of both Houses of Parliament and the state Legislative Assemblies.

Mode of Voting

As per Article 55(3) of the Constitution of India, the election of the President should be held according to the system of proportional representation by means of a single transferable vote. The voting at the presidential election shall be by secret ballot.

Disputes regarding the election: Article 71

What if people raise issues regarding your elections as president? Who would clarify the dispute?

Well, Article 71 deals matters relating to the election of the President. It states that any dispute arising with respect to the election of the President will be adjudicated by the Supreme court and its decision will be considered final.

• If the election of a person as President is declared void, acts done by him in the exercise of the powers of the office of President will not be considered invalid by reason of the order of the Supreme Court.
• Parliament can formulate any law regarding the election of a President in consonance with the provisions of the Constitution.
• The election of a person as President or Vice President shall not be called in question on the ground of the existence of any vacancy for whatever reason among the members of the electoral college electing him.

Oath by the President: Article 60

So, after you are elected, it is time to make an oath and get familiar with the term of office of the President. 

Any person holding the office of the President or delivering the functions of the President must, before entering into the office of the President, be made to subscribe in the presence of the Chief Justice of the country or any other senior-most judge of the Supreme Court, to an oath or affirmation in the name of God to faithfully execute the office of president of India and to preserve, protect and defend the Constitution and the law to the best of his abilities and that he would devote himself to serve the people of India and ensure their well being.

Term of office of the President: Article 56

Article 56 defines the term of the office of the President to be of five years unless:

• A new President enters the office, the incumbent President shall hold it;
• President resigns before the expiry of the term by writing it to the Vice President;
• The President is removed from his office, for violation of the Constitution, by the process of impeachment provided under article 61.

The article also states that any resignation made by the President to the Vice President must be communicated to the Speaker of the Lok sabha by the Vice President himself.

Time of holding the election on expiry of the term and filling casual vacancies

Article 62 provides for the filling up of the vacancy to the office of the President. It defines the terms of office of the person filling the casual vacancy as well as the time of holding elections to fill the vacancy.

It states that an election to fill the vacancies must be fulfilled before the expiration of the term of the office of the President.

An election to fill the vacancies, occurring due to the death, resignation or impeachment of the President, must be done as soon as possible. The elections, in any case, must be conducted within a time period of six months from the date of occurrence of the vacancy. The new person elected to the office of the President will be subject to all the provisions of Article 56 and will hold his office for a five-year term from the date of entering into the office.

Procedure for impeachment of the President: Article 61

So, you heard me talking about the impeachment process in the above paragraph. So, let’s not be secretive about it and discuss how you can be removed from the post of President through impeachment? 

The President of India can be impeached under Article 61, for the violation of the Constitution, on the basis of charges preferred by either House of Parliament. 

A resolution with the proposal to prefer such charges must be signed by at least one-fourth of the total members of the house. The resolution also needs to be passed by at least two-thirds majority of the house.

When the resolution is passed by one of the Houses, the other House must investigate the charges. The President has been granted the right to be present or to be represented in such investigations.

When the House investigating the charges passes the resolution by a two-thirds majority and declares the charges as sustaining, it results in removing the President from his office from the date of passing of the resolution.

Privileges of the President: Article 361

As President, you also enjoy some degree of immunity. Under Article 361, the President is protected from being answerable to any court for:

• For exercise and performance of his powers and duties of his office;
• For doing any act or claimed of doing any act in the exercise of those powers and duties;

The conduct of the President can be reviewed only if either House of Parliament designates or appoints any court tribunal or any other body to investigate the charges under Article 61.

But it bars no person from bringing any valid proceeding against the Governor or Government of India.

The Article immunes the President against all types of criminal proceedings during the term of his office.

No issuance of any order relating to the arrest and imprisonment of the President can be made by any court during his term of office.

A civil proceeding can be constituted against the president during his term of office if:

• The act is done or alleged to have been done, whether before or entering the office of the President, by him was in his personal capacity;
•  Two months prior notice is provided, to the president or was sent to his office, stating:
  1. The nature of the proceeding;
  2. The cause of action;
  3. The details of the other party including name, description, and place of residence;
  4. The relief claimed by the other party;

Powers of the President

The President of India is provided with a wide range of power that we will discuss one by one. Let’s start with the most interesting and important power i.e. the executive powers.

Executive powers

Article 53 of the Indian Constitution states that all the executive powers of the Union will be vested in the President of India. President is allowed to exercise his executive powers through officers subordinate to him, directly or indirectly, in consonance to the provisions of the Constitution.

Under this article, the President has powers regarding:

• Appointment of the high authorities of the Constitution like the Prime Minister and the Council of Ministers;
• Right of being informed about all the national affairs;
• Appointment of the judges of the constitutional courts(Supreme Court and High Courts);
• Appointment of the state Governors, the Attorney General, the Comptroller, and Auditor General, the Chief Commissioner and members of the Election Commission of India;
• Administration of Union territories and appointment of the Chief Commissioners and Lieutenant Governor of the Centrally Administered Areas;
• Removal of the Council of Ministers, the state Governors, the Attorney General.

Military powers

Article 53 also states that the President shall be the Supreme Commander of all the Armed Forces of the Union of India. It also states that no specific provisions can reduce the scope of this general principle.

As the Supreme Commander of the Armed Forces of the Union, President has powers regarding:

• Appointment of all the officers, including the appointment of the chiefs of the forces;
• Wars are waged in the name of the President;
• Peace is concluded in the name of the President.

Diplomatic powers

The President forms the face of Indian diplomacy and helps the nation to maintain cordial relationships with countries across the globe. 

• All the Ambassadors and high commissioners in foreign nations are his representatives;
• He receives the credentials of the Diplomatic representatives of other nations;
• Prior to ratification by Parliament, the treaties and agreements with other nations, are negotiated by the President.

Legislative powers

The President also enjoys certain legislative powers like:

• During the budget session, the President is the first to address the Parliament;
• The President is empowered to summon a joint session in order to break the deadlock in the legislation process between the two Houses of the Parliament;
• President sanction is mandatory in cases of provisions relating to: 

1. creating a new state;
2. changes in the boundary of existing states;
3. a change in the name of a state.

• Legislative provisions relating to fundamental rights of the citizens of India require the President’s consent;
• President’s consent is mandatory in cases of money bill originating in Lok sabha;
• President’s consent is necessary for all the bills passed by the Parliament to become a law;
• President is empowered to promulgate ordinances when the Parliament is not in session;
• President also nominates the members of both the Houses.

Ordinance making power of the President: Article 123

Article 123 talks about the presidential powers to promulgate ordinances. An ordinance can be promulgated if:

• neither of the House of the Parliament is in session;
• and the President feels a need for immediate action.

The ordinance which is promulgated by the President will have the same effect as that of an act or law of the Parliament.

The essential conditions to be met by an ordinance are:

• It shall be presented before both the Houses of Parliament for passing when it comes to the session;
• The ordinance shall cease to operate six weeks after the date of reassembling of the parliament;
• The ordinance may also expire if the resolutions disapproving it are passed by both the Houses of Parliament;
• It can be withdrawn at any time by the President;
• The ordinance must be in consonance to the Constitution of India else it shall be declared void.

Financial Roles

• President receives reports of the Finance Commission and acts on its report.
• The Contingency Funds of India are at the disposal of the President.
• He also causes the presentation of audits in the Parliament.

Judicial powers

The President enjoys the following privileges as his judicial powers:

• He can rectify the judicial errors;
• He exercises the power of grant of pardons and reprieves of punishments;
• President can seek the advice of Supreme Courts on:

1. Legal matters,
2. Constitutional matter,
3. Matters of national importance.

Pardoning power: Article 72

Article 72 provides for the provisions relating to the pardoning powers of the President. President can grant pardons, respites, reprieves, and remissions of punishments or remit suspend or commute the sentence given to a person by the court in the following cases:

• When the sentence is granted through a court-martial;
• When the sentence or punishment is given for offense of violation of any law relating to matters that fall in the ambit of Union’s executive powers;
• When a death sentence is passed by a court.

Clemency Power not unbridled

Unbridled Ness of the pardoning powers of the president has always been a highly debated issue. Supreme Court in various cases has laid down provisions for exercising control over the pardoning powers of the Executive.

In Maru Ram Etc. Etc v Union of India, Supreme Court held that pardoning power under Article 72 is to be exercised by the President, on the advice of Central Government and not on his own will and that the advice is binding on the head of the Republic.

In Dhananjay Chatterjee alias Dhana v State of West Bengal, the Supreme Court reiterated the same.

Nature of Pardoning Power

Indian Presidents are known for the generous grant of pardons. Pardon is an act of grace and not a form of a right to be demanded by any person. Unlike the Constitutional provision, Pardon is granted by the executive as a whole and not by the President alone. This is done as it is necessary for the President to act on the aid and advice of the Council of Ministers.

A pardon completely sets free an offender of all his guilt. A full pardon makes the person innocent in the eyes of law as if he has never committed a crime. It gives him the identity as that of a new man with a new set of capacities.

The pardoning power comes with discretion on the part of the President. The practice to confer the right of pardon on some authority has long existed. It is also practised in other countries, for example, the U.S. Constitution prescribes for the power of pardon to the President whereas, In the United Kingdom, the same is conferred to the Crown.

Pardoning Power: subject to judicial review 

The question that arises is whether the pardoning power of the president can be brought under the judicial review. Can the judicial review of such an order be done? What could be the grounds for judicial review of such orders?

In Kuljit Singh Alias Ranga Vs Lt. Governor of Delhi & Ors the court held that the pardoning powers of the president

under Article 72 can be examined according to the facts and circumstances of each case. The Court has the power of judicial review even on a matter which the Constitution has vested solely in the Executive.

The most significant case of Kehar Singh And Anr. Etc Vs. Union of India And Anr. dealt with the concept of judicial review of the President’s pardoning power on grounds of its merit. In this case, the Supreme Court held that

The terms and history of Article 72 as well as the specific guidelines and case laws relating to Article 72 clearly indicate that the ambit of Article 72 very wide. The powers under this article cannot be clearly defined or channelized with specific guidelines. The term “pardon“ itself signifies it to be discretionary. Hence, the grant or rejection of pardons cannot be reasoned and the order of President cannot be brought under judicial review with respect to its merits.

Whereas In Epuru Sudhakar Case, where a Congress activist faced ten years in prison in connection with the killing of two persons including a TDP activist. His punishment was remitted by the Governor of Andhra Pradesh. Contentions were raised regarding the immunity of the pardoning power. The  Supreme Court bench stated that the exercise of pardoning powers would be subject to judicial review by the court against the maintenance of Rule of Law.

Exercising powers of clemency is a matter of discretion but still subject to certain standards and not a matter of privilege. The power of executive clemency is a matter of performance of official duty and not only for benefiting the convict. During exercising such powers the President must also consider the effect of his decision on the family of the victims, the society and the precedent it sets for the future.

Thus this judgment settled position of law that immunity from the judicial review can not be granted to the President for exercise or non-exercise of the pardoning power.

Articles 72 and 161 of Constitution

Article 161 grants the power to the Governor of the state to suspend, remit or commute sentences of the offenders in certain cases relating to a violation of provisions or laws to which the executive power of the state extends.

Emergency Powers

Article 352 of the Constitution of India grants President, three kinds of emergency powers as well:

• When a National Emergency is declared in case of external aggression or internal armed rebellion, the President holds the powers to declare a state of emergency. Thus the President’s rule gets established in the country. However, the prime minister and the Council of Ministers must recommend such an emergency;
• When there exists a constitutional or law and order breakdown situation in a state, the President may declare a state of emergency in such cases. The state would then come under Governor’s rule;
• Whenever the financial stability of the nation or any country is seriously affected, the President has the right to intervene and direct the state to check and maintain public expenditure.

Position of the President 

The position of the President has changed, with respect to his discretion to use his power,  has changed since the inception of the Constitution. The two major changes came through the 42nd and 44th Amendment Act of the Constitution.

Prior to the 42nd Amendment Act of 1976

Prior to the 42nd amendment to the Constitution, the President was free to make decisions based on his wisdom. He may also consider the Council of Ministers for their advice on the action. As the Constitution at that time talks about constituting a Council of Ministers with a Prime Minister, as its head, to aid and advise the President in carrying out his duties. 

After the 42nd Amendment Act, 1976

Later, the Constitution was amended to add the phrase that the President shall act on the aid and advice of the council of ministers. But the provision was still ambiguous whether the advice given by the Council of Ministers is binding on the president or not.

44th Amendment Act, 1978

This amendment was brought it to swipe off the ambiguity created by the 42nd amendment. This provision said that:

• President can send back the advice to the Council of Ministers for reconsideration once;
• If the same advice is sent again without modifications by the Council then President is bound to accept it. 

The Vice President (Article 63)

Article 63 talks about the vice president of India.

 Functions of the Vice-President

There are some important functions and duties to be performed by the Vice-President of India. Article 64 and Article 65 of the Indian constitution talks about the following functions:

• The Vice-President is the ex-officio Chairman of Rajya Sabha(the Council of States);
• The Vice President casts his vote in case of a tie in Rajya Sabha;
• The Vice President represents the Council of States on ceremonial occasions;
• He protects the rights and privileges of the members of the Rajya Sabha;
• He travels, for goodwill missions, to foreign countries;
• The Vice-President shall perform the functions of President, in cases where the President is not able to perform his functions due to absence or illness etc until the President resumes his duty;
• The Vice-President shall act as President, If the vacancy is created for the post of President due to his resignation, removal, and death or otherwise until a new President is elected;
• The period between the Vice-President acting as the President and the election of a new President can be extended for a maximum period of six months.

The Council of Ministers 

Article 74 of the Indian constitution states that:

• There should be a Council of Ministers to aid and advise the president;
• The Council of Ministers must have a Prime Minister at the head to aid and advise the President;
• The President should exercise his functions and act in accordance with advice rendered by the Council of Ministers;
• The Council of Ministers should reconsider any advice sent back by the President;
• The President is bound to act in accordance with the advice tendered by the Council, after reconsideration.

Size of Ministries

The executive powers in India are exercised by the Council of Ministers. These ministers constitute ministries having cabinet minister, junior minister, etc. Before 2003, the size of ministries was not specified under any provision leading to a lot of chaos. 

After the 91st amendment Act of 2003 came into existence, it marked a ceiling limit to the size of the ministries. The amendment stated that the strength of the Council of Ministers cannot exceed more than 15% of the total number of members of the Lok sabha or relevant Legislative Assembly of the state.

An exception was provided to the smaller states like Sikkim, Mizoram, and Goa, having a strength of lesser than 40 members in the legislative assemblies.

Disqualification on defection on the ground of split in a political party

Article 102(2) and Article 191(2) provides for Anti-Defection laws regarding the members of Lok sabha. According to this law, a member of a House, belonging to any political party, shall be disqualified as a member of the House on the following basis-

• If the person voluntarily gives up his/her  membership of the political party to which he/she belongs; or
• If the person votes or abstains from voting in contrary to any direction issued by the political party or by any person or authority authorized to give directions.

In either case, the prior permission of such political party, person or authority must be sought. The voting or abstention must be approved by the political party, person or authority within fifteen days from the date of voting or abstention.

When a member of a House claims that he and any other members of his party have formed a group representing a faction emerging as a result of a split in his original political party. If such a group consists of one-third or more of the members of such a political party then the ministers cannot be disqualified under Anti-Defection laws.

A non-member can become a Minister

Article 75 of the Constitution of India provides for provisions relating to the appointment of the Union Ministers.

At first, the Prime Minister is appointed by the President and then the President appoints other ministers on the advice of the Prime Minister.

The provision clearly states that any minister, who is not a member of either House of the Parliament, shall cease to be a minister after the period of six months from the date of his appointment.

The non-member must get elected to either House of the Parliament in order to continue as a Minister of Lok Sabha.

A convicted person cannot be appointed Chief Minister

When the question arose whether a convicted can be appointed as Chief Minister or not. 

The issue was decided in the negative by the Supreme Court in the famous case of  B.R. Kapoor v State of Tamil Nadu and Anr (Famously known as Ms. J. Jayalalitha Case). It was held that any person who is convicted for a criminal offense and sentenced to imprisonment, for a period of two years, or more, cannot be appointed the Chief Minister of any State under Article 164(1) of the Indian Constitution.

Dissolution of Parliament 

In our country, the Lok Sabha has a five-year term but it can be dissolved earlier. Article 83(2) of the Indian Constitution states that at the completion of five years term, from the starting date of Lok sabha meetings, it can be dissolved. In such cases, an election is held to elect the new Members of Parliament. 

The Lok Sabha can also be dissolved by the President on the advice of the Prime Minister before the expiry of its term.

The  President can also dissolve the Lok Sabha, if he feels that a viable government cannot be formed, after the resignation or fall of a regime, as the case may be.

Principle of Collective Responsibility

The principle of Collective Responsibility means that the Council of Ministers is collectively responsible as a body for all the actions, omissions and conduct of the government.

It states that all ministers stand or fall together in Parliament. The Government is considered as a unity of ministers instead of single individuals. It means that the minister should publicly support the decisions made by the cabinet, even if they disagree privately. This support even includes voting for government in the legislature.

Minister’s Individual Responsibility

The Ministerial Individual Responsibility means that a cabinet minister is ultimately responsible for all the actions of his ministry or department.

Whenever there is an individual ministerial responsibility, the party to which the minister is a part is not answerable for the failure of the minister. The minister shall himself take the blame for the actions of his ministry and resign.

Appointment of Prime Minister

The Prime Minister of India is appointed by the President through provisions under Article 84 and Article 75. Prime minister is the leader of the majority party or coalition of parties of Lok sabha. When a party achieves majority the leader of that party is called upon by the President to be the Prime Minister of the country. He is considered as the real head of the country. 

Constitutional Duties of Prime Minister

The constitution envisages the Prime Minister with certain rights and duties. The functions of the Prime Minister are as follows:

• The Prime Minister proposes the names of the members to President for appointment as Ministers of the government;
• Prime minister can reshuffle the Cabinet and decides for the distribution of charges of different ministries as well;
• He presides over the meetings of the Cabinet and can also change the decisions taken by the Cabinet;
• He suggests the President of India about the resignation or removal of any minister from the Cabinet;
• He also directs and controls the functioning of Ministers in the Cabinet;
• The Prime Minister may resign at any time and can even ask the President of India to dissolve the Cabinet.;
• He can advise the President to dissolve entire Lok Sabha to conduct fresh elections;
• The Cabinet stops functioning If the Prime Minister resigns from his post, and spontaneously dissolves after the death of the Prime Minister.

Rights and powers regarding Appointments:

Prime Minister can advise the President for the appointment of the following:

• Comptroller and Auditor General of India;
• Attorney General of India;
• Advocate General of India;
• Chairman and members of UPSC;
• Selection of Election Commissioners;
• Members and chairman of the Finance Commission.

Rights/Powers with regard to Parliament of India:

Prime Minister is the leader of the Lok sabha with rights to exercise the powers as follows:

• The prime minister decides the foreign policy of the country.
• He is the speaker of the Central Government.
• He is the leader of the majority party or coalition of parties in the Parliament.
• The Prime Minister is also is the chairman of various organizations including:

1. NITI Aayog;
2. National Development Council;
3. National Integration Council;
4. Inter-state Council;
5. National Water Resources Council.

• He is also the head of the disaster management team during a political level emergency.
• He is also the political head of all the forces.

Dismissal of a Minister

The minister of the Lok sabha can be removed from his post under the following conditions:

• Upon the death of the minister;
• Upon self resignation from the minister;
• If the minister is dismissal by the President, for unconstitutional his acts as per Article 75(2);
• Article 75 of the constitution states that the minister holds the office at the pleasure of the President;
• Upon direction from the Court for committing the violation of any law;
• If the minister loses the eligibility to be a member of Parliament.

Dismissal of the Cabinet

The Cabinet of Minister dissolves if:

• The Prime Minister asks the President of India to dissolve the Cabinet;
• The Prime Minister advises the President to dissolve entire Lok Sabha to conduct fresh elections;
• If the Prime Minister resigns from his post;
• The cabinet automatically dissolves after the death of the Prime Minister.

The Attorney-General of India

Article 76 and Article 78 speaks of the Attorney General of India. The Attorney General of India is the highest law officer in the country. 

Term and Appointment

The Attorney General is appointed by the President and holds the office at the pleasure of the President.

Qualification

The person to be appointed as the Attorney General of India must be qualified to become a judge of the Supreme Court of India.

Functions and Duties of Attorney-General

Article 76(2) and (3) defines the functions and duties of the Attorney General of India. Article 76(2) states that:

• Attorney General can give advice to the Government of India regarding legal matters assigned to him by the President;
• He must also perform other duties of any legal character that are assigned to him by the President;
• He also has to discharge the functions given to him by the Constitution or any other legislation.

Whereas Article 76(3) states that in the performance of his official duties:

• The Attorney General can appear on behalf of the Government of India in the Supreme Court, in cases where the Government of India is a party concerned;
• He also has to appear on behalf of the government, in regards to references made by the President before the Supreme Court under Article 143 of the Constitution;
• He has to appear on behalf of the government in any case in the High Court, where the Government of India is a party in concern.

Conclusion 

Wherefore, the Union Executive is one of the most important organs of the Indian democracy. It forms the soul of our Indian administrative system. Union executive act as the strong shoot for all the branches of administrative and executive bodies. The Constitution-makers have assembled together all the provisions needed to form a strong and responsible executive system for our nation. Thus, it makes it important for the citizens as well to coordinate with the executive for the better functioning of our Indian democratic 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 The Union Executive: Articles 52 to 78 and 123 Under Indian Constitution appeared first on iPleaders.

This article is written by G.S. Sreenidhi and pursuing Vth Year B.A.LL.B(Hons.) from Maharashtra National Law University Mumbai.

Introduction

The process of administration of justice in India has evolved over the years. The judiciary in India is similar to the set up in many common law countries. The development of administrative law is another area whose roots can be linked to the English Jurisprudence. While several authors and renowned jurists have opined and given definitions of Administrative Law, a similarity and the crux of all these definitions is that administrative law relates to the actions of administrative authorities along with their powers. 

Administrative bodies have a variety of powers including rule making, forming regulations and quasi judicial powers. The judicial power of Administrative Authorities is usually by way of tribunals set up under various legislations. Through the course of various cases and evolution of principles, there is a reasonably clear classification of ‘Administrative Tribunals’ along with a general definition of an ‘Administrative Adjudicator’. By way of landmark decisions, the Supreme Court has laid down the criteria for administrative adjudicators. The essential condition being a decision being made and this action leads to taking away a right or imposing a liability on an individual or group of individuals or a legal entity. While these adjudicators are not part of the judiciary per se, they are still subject to judicial review. The decisions and exercise of discretionary powers by administrative adjudicators falls within the jurisdiction of the Judiciary. 

With that in mind, this paper deals with the aspect of ‘errors in law’ and ‘error apparent on the face of record’ by decisions of administrative adjudicators. The paper will elaborate on who constitutes Administrative Adjudicators and the power of the judiciary to review these orders of tribunals, particularly by way of issue of writ of certiorari. Further, the paper will analyse various decisions made with regard to the nature of error and remedy available while also tracing the blurring distinction between error of law and error apparent on the face of record.

Administrative Adjudicators

Administrative Adjudicators form a part of Administrative Tribunals. These tribunals are creations of law through different legislatures that clearly lay down the authority of the law and the procedure for functioning of these tribunals. These tribunals generally adjudicate on complaints, trials and disputes through adversarial proceedings. The basic need and a major characteristic of these tribunals is the quick disposal of numerous cases along with a cost effective mode which also includes a flexibility in the procedures. Unlike courts, these tribunals focus on functionalities and not on technicalities. By taking the focus away from a legalistic view and approach, these tribunals are better accessible to the common people and less intimidating due to the relative simplicity and informality in the proceedings. These tribunals have become an indispensable part of any welfare state and facilitate in easing the plethora of pending cases before the Courts of a Country.

In India, after various recommendations by Law Commission Reports, in particular the 14th Law Commission Report, that stressed the importance of not linking Administrative Tribunal to the High Courts, the Parliament passed the Administrative Tribunals Act, 1985. This Act laid down the powers and jurisdiction of tribunals and specified bodies that would be classified as tribunals and set out the powers and procedures for these tribunals. 

While there have been many discussions and debates on the advantages and disadvantages of such tribunals, there have also been cases that have crystallised the power of judicial review and there have been continuous attempts by the Courts to curtail arbitrary decisions and abuse of discretionary power by the administrative authorities. In this regard, while the Act lays down the Administrative Tribunals, through these years, it has been an established principle that for an adjudication to be termed as an ‘Administrative Adjudication’, there need not be a clear classification of the adjudicating authority as a ‘Tribunal’. Even if the authority is not formally defined under the scope of any law, the test of deciding if an act amounts to adjudication is two fold:

• A decision is taken by an authority that prompts action.
• This action in turn leads to imposition of a liability or taking away the rights of a legal entity.

In light of this, we can see that the scope of administrative adjudication is expanded and made inclusive which in turn brings a larger number of bodies under the scope of judicial review. 

Writ of Certiorari 

Black’s Law Dictionary defines certiorari as follows:

“A writ issued by a superior court directing an inferior court to send up to the former some pending proceeding, or all the record and proceedings in a cause before verdict, with its certificate to the correctness and completeness of the record, for review or trial; or it may serve to bring up the record of a case already terminated below, if the inferior court is one not of record, or in cases where the procedure is not according to the course of the common law.”

Lord Chancellor Viscount Simon opined the following about Certiorari in the case of Ryots of Garabandho and other Villages v. Zamindar of Parlakimedi and Anr:

“The ancient writ of certiorari in England is an original writ which may issue out of a superior Court requiring that the record of the proceedings in some cause or matter pending before an inferior Court should be transmitted into the superior Court to be there dealt with. The writ is so named because, in its original Latin form, it required that the King should “be certified” of the proceedings to be investigated, and the object is to secure by the exercise of the authority of a superior Court, that the jurisdiction of the inferior tribunal should be properly exercised. This writ does not issue to correct purely executive acts, but, on the other hand, its application is not narrowly limited to inferior “Courts” in the strictest sense. Broadly speaking, it may be said that if the act done by the inferior body is a judicial act, as distinguished from being a ministerial act, certiorari will lie. The remedy, in point of principle, is derived from the superintending authority which the Sovereign’s Superior Courts, and in particular the Court of King’s Bench, possess and exercise over inferior jurisdictions. This principle has been transplanted to other parts of the King’s dominions, and operates, within certain limits, in British India.”

The principles and grounds for certiorari are well established. The power of the Supreme Court and the High Courts to issue writs is contained under Art. 32 and 226 of the Indian Constitution Respectively. The Supreme Court laid down the propositions for issuing certiorari in the case of Hari Vishnu Kamath v. Ahmad Ishaque:

“(1) Certiorari will be issued for correcting errors of jurisdiction;

(2) Certiorari will also be issued when the Court or Tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice;

(3) The court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the court will not review findings of fact reached by the inferior court or tribunal, even if they be erroneous.

(4) An error in the decision or determination itself may also be amenable to a writ of certiorari if it is a manifest error apparent on the face of the proceedings, e.g., when it is based on clear ignorance or disregard of the provisions of law. In other words, it is a patent error which can be corrected by certiorari but not a mere wrong decision.”

Among these grounds, a popular aspect is the ‘error apparent on the face of record’. The remedy available to people against a decision based on an error so patent that addressing the error will definitely change the outcome of the decision. This error may be an error of law or an error of fact apparent on the face of record. The next chapter deals with this aspect in detail.

Error of Law Apparent on the Face of Record 

There are different types of errors that may occur in a in a judicial process or an administrative adjudication. These are errors of jurisdiction, error of law and error apparent on the face of record. There is a clear distinction between an error of law and a jurisdictional error. 

A jurisdictional error occurs when a complaint or grievance is wrongfully addressed by a court without the authority to do so. If the court or tribunal has gone wrong in law, this error can be addressed by issuing a writ of certiorari.

Trend in India

The difference between an error of law and error of jurisdiction is minute. Since questions of jurisdiction are connected with questions of law and questions of jurisdiction can often be questions of law. This has led to a blur between an error of fact and a jurisdictional error. This blurring of distinction may be extended to error of law and error of law apparent on the face of record. Principally this distinction may be drawn by looking at the error committed to see if it is manifest, patent and self evident or apparent on the face of record in which case it amounts to error apparent on the face of record. In case the error is latent and can be established by lengthy and complicated arguments, such an error will be an error of law. This distinction was laid down in the Hari Vishnu Kamath case cited earlier. This distinction is necessary and important as the writ of certiorari may be issued when the error is apparent on the face of record and not for a mere error of law. The writ is not issued for a mere wrong decision but for an error so glaring and obvious. This has been upheld by the apex court in numerous decisions such as G Veerappa Pillai v. Raman & Raman Ltd, T C Basappa v. T Nagappa, Hari Vishnu Kamath v. Ahmad Ishaque and Satyanarayanan Lakshminarayanan Hegde v. Mallikarjun Bhavanappa Tirumale. 

By various cases, the Supreme Court has held in various cases including the famous case of Ujjam Bai v. State of UP that a writ of certiorari may also be issued if there is an error of law, which is apparent on the face of the record, a decision of an inferior court or a tribunal. Certiorari may however not be issued on the mere error of law. In Ujjam Bai the question was one of interpretation of the notification where the Supreme Court refused to interfere under Art. 32 and observed that: 

“Where a quasi-judicial authority has jurisdiction to decide a matter, it does not lose its jurisdiction by count to a wrong conclusion, whether it is wrong in law or in fact.” 

While this decision has been questioned and criticised, subsequently, while elaborating on the distinction between these two kinds of errors and acknowledging the overlap, the Supreme Court held the following in the case of Syed Yakoob v. K S Radhakrishnan:

“The impugned conclusion should be so plainly inconsistent with the relevant statutory provision that no difficulty is experienced by the High Court in hiding that the said error of law is apparent on the face of record.”

Further elaborating, the court has held in the case of Prem v. Deputy Custodian General that for an order of a tribunal to be amenable to judicial review on the ground of ‘error of law apparent on the face of record’ it should be a speaking order, i.e., it should set out the reasons for the decision and should show a clear ignorance or disregard of the provisions of law.

This principle was adopted in India from the English law. This has caused some confusion due to the technical intricacies in differentiating patent and latent errors. Though scholars and judges have tried to draw a distinction, there are several jurists who are opposed to the idea of such a demarcation. Lord Denning remained unconvinced about the distinction between such errors for two major reasons:

“First, he considered a distinction could not be drawn in any principled fashion, and in reality courts are manipulated for instrumental purposes. 

Second, consistency requires same meaning be attributed to legal provisions by all decision-makers and to this end, Court should be able to furnish conclusive interpretations of legislation.”

In the case of Shanmugam v. S.R.V.S the court held that if an authority ignores relevant considerations or takes into account irrelevant considerations in reaching its decisions, it amounts to a patent error of law. If the principle in the Anisminic Case were to be applied, such errors can be construed as jurisdictional errors which will fall well within the scope of certiorari thereby granting a stronger protection. 

Having looked at all these cases and traced the evolution of the principles, the position in law in India in this regard can be summarised in the following judgement by Gajendragadkar J in the case of Syed Yakoob v. K.S. Radhakrishnan:

“It is neither possible nor desirable to attempt either to define or to describe adequately all cases of errors which can be appropriately described as errors of law apparent on the face of the record. Whether or not an impugned error is an error of law and an error of law which is apparent on the face of record, must always depend upon the facts and circumstances of each case and upon the nature and scope of the legal provision which is alleged to have been misconstrued or contravened.”

This decision has been the major precedent in cases regarding error of law and subsequent cases have largely followed the principle laid down in this case. This decision has further been upheld in cases involving inference of facts such as Rohtas Industries v. R.I.S.U.

In the case of Dr. Chetkar Jha v. Vishwanath Prasad Verma, the Supreme Court held that in a writ petition for certiorari a superior court would not interfere on the mere ground of an error of fact or even of law, but if the error of law is apparent on the face of record, or it consists of a misconstruction of a law or that assumption of jurisdiction is made which otherwise does not exist, a certiorari can be issued. 

While the earlier position in England was in favour of distinction which was carried over to India, in the USA the courts decide on all errors and relevant questions in law. The Courts also have the authority to interpret constitutional and statutory provisions under the American Administrative Procedure Act, 1946.

Anisminic Case

While courts tried to draw a distinction between an error of law and an error apparent on the face of record, a historic and highly contested decision by the House of Lords in1968 in the case of Anisminic Ltd. v. Foreign Compensation Commission. This case established the doctrine of collateral fact which holds that any error of law that is committed by a public body will automatically make its decision a nullity. The doctrine asserts that “It asserts that in judicial review cases a distinction can be made between misconstruction of an enabling statute for the kind of case meant to be dealt which is a jurisdictional error and misconstruction of the statutory description of the situation which would be an error within jurisdiction.” The practical applicability and the impossibility of drawing such a distinction has been pointed out by scholars and jurists alike. 

Post Anisminic Trend: United Kingdom

In the case of R v. Lord President of the Privy Council, ex parte Page, Lord Browne-Wilkinson interpreted the Anisminic Case as the decision rendering the distinction between ‘jurisdictional error of law on the face of record’ and other ‘errors of law’ obsolete by extending the doctrine of ultra vires.

Following such a view, Lord Denning in the case of Pearlman v. Harrow School Governors noted that the distinction is now a mere matter of words and observed that:

“I would suggest that this distinction should now be discarded…The way to get things right is to hold thus: no court or tribunal has any jurisdiction to make an error of law on which the decision of the case depends. If it makes such an error, it goes outside its jurisdiction and certiorari will lie to correct it.”

The dissenting judge in the Pearlman case, Geoffrey Lane pointed out that the House of Lords in the Anisminic case intended to maintain the established distinction between error of law within jurisdiction and error of law outside jurisdiction. This view of lord Lane was preferred over that of Lord Denning in a Privy Council case from Malaysia of South Ease Asia Fire Bricks Sdn. Bhd. v. Non-Metallic Mineral Products Manufacturing Employees Union and also by the High Court of Australia in the case of Houssein v. Under Secretary, Department of Industrial Relations.

While pondering at the distinction between law and fact, Christopher Forsyth has opined that the distinction between a question of law and question of fact is not so self evident and the boundary between the two is often elusive. He proceeds to cite a case of the Supreme Court of the UK. In the case of Jones v. First Tier Tribunal and amor, Lord Hope in his judgement held that: 

“it is primarily for the tribunals, not the appellate courts, to develop a consistent approach to these issues of law and fact, berating in mind that they are peculiarly well fitted to determine them. A pragmatic approach should be taken to the dividing line between law and fact, so that the expertise of tribunals at the first tier and that of the Upper Tribunal can be used to best effect. An appeal court should not venture too readily into this area by classifying issues of law which are really best left for determination by specialist appellate tribunals.”

This view is a pragmatic approach which is contrary to the objective limit sought to be placed on the powers. This case also takes the view that questions of fact are for the primary decision maker which is once again contrary to the growing trend post Anisminic case that the cases of error of material fact may also be a ground for judicial review.

Summarising the Shift

The trend in the UK and also India following Anisminic is of an expanding system struggling to free itself from the doctrines laid down in the past. However, this does not render these doctrines wholly obsolete as they are still quite relevant in jurisprudence and interpretation today. To summarise the shift from the older rules to the simpler and broader practices which have superseded them can be said of error of fact and error of law as follows: 

Conclusion

With India’s present population and its continued growth, it naturally follows that there will be increased disputes that will further accumulate in the various courts in the Country. Faster mechanisms and alternative methods for dispute resolutions are undoubtedly and undeniably the need of the hour. 

Establishing Administrative Tribunals is a necessary step in this regard. Apart from diluting the load of cases in courts, such specialised tribunals also have experts in the fields and trained personnel as the adjudicating authorities. This ensures that the authority is well-versed with the subject matter and is in a better position to understand the intricacies of the disputes before than as opposed to judges in ordinary courts. However, the mere fact that the adjudicating authority is well-versed in the field does not give rise to a premise for their decisions to be outside the scope of judicial review. Tribunals and Adjudicating Authorities are granted strong discretionary powers and there needs to be a check and control mechanism in place in order to prevent misuse and abuse of such a power. Courts have continued to track and monitor the misuse of such powers and have been persistent in their efforts to curtail arbitrariness while also recognising the importance and respecting the discretion conferred on these authorities.

While the authorities may be experts in the field, this expertise does not make them immune to error. Judicial review provides an avenue to address such grave errors in decisions by both tribunals and courts. The early trends of Courts when dealing with errors was to distinguish between latent and patent errors and excluding latent errors from directly being subject to review, thereby limiting the scope of judicial review. However, later developments have clearly indicated and acknowledged the overlap and blurring of these errors and the there is a realisation of the need to do away with these distinctions and bring all errors in law within the scope of judicial review. While on the one hand, it may be seen as increasing the burden on the courts, on the other hand, it imposes a better control on the arbitrary exercise of power by administrative authorities and while weighing the costs and benefits to the society, and taking into consideration the fact that there is an inherent faith in the judiciary among the people, widening the ambit of judicial review of errors in law is a step in the right direction.

References

Articles

• Walsh, David. Judicial Review, Competence and Rational Basis Theory. Student Law Journal. February 2005

Books

• Basu DD, Sen Gupta SP. Administrative Law. 7th Edn. Kamal Law House. 2016
• Byse. The Federal Administrative Procedure Act, 1 JILI 89 (1958)
• Elliot Mark, Beatson Jack, Matthews Martin. Administrative Law. 3rd End. Oxford University Press, 2005. Pp 46-49
• Jain MC Kagzi. The Indian Administrative Law (4th ed) New Delhi: Methodology Book Co. 30p 
• Jain MP, Jain SN. Principles of Administrative Law. 7th Edn. Lexis Nexis, 2017. pp 653-655
• Kesari, U P D, Kesari, Aditya. Lectures on Administrative Law. 20th Edn. Central Law Publications, New Delhi, 2014. pp 485-486
• Seervai HM, Constitutional Law of India: A Critical Commentary. Vol II. 4th Edn. Universal Law Publishing. 2015
• Thakker, CK, Thakker, M.C. Administrative Law. 2nd End. Eastern Book Company, Lucknow, 2012. pp 1008-1012
• Wade, William, Forsyth Christopher. Administrative Law. 10th Edn. Oxford University Press. 2014

Cases

United Kingdom

• Anisminic Ltd. v. Foreign Compensation Commission, [1969] 2 AC 147
• Houssein v. Under Secretary, Department of Industrial Relations, (1982) 38 ALR 577
• Jones v. First Tier Tribunal and anor, [2013] UKSC 49
• Pearlman v. Harrow School Governors, [1979] QB 56
• R v. Lord President of the Privy Council, ex parte Page, [1993] AC 682
• South Ease Asia Fire Bricks Sdn. Bhd. v. Non-Metallic Mineral Products Manufacturing Employees Union, [1981] AC 363

India

• Dr. Chetkar Jha v. Vishwanath Prasad Verma, AIR 1970 SC 832
• G Veerappa Pillai v. Raman & Raman Ltd, AIR 1952 SC 192
• Hari Vishnu Kamath v. Ahmad Ishaque, AIR 1955 SC 233
• Prem v. Deputy Custodian General, 1958 SCJ 29
• Ryots of Garabandho and other Villages v. Zamindar of Parlakimedi and Anr, AIR 1943 PC 164
• Satyanarayanan Lakshminarayanan Hegde v. Mallikarjun Bhavanappa Tirumale, AIR 1960 SC 137
• Shanmugam v. S.R.V.S, AIR 1963 SC 1626
• Syed Yakoob v. K.S. Radhakrishnan, AIR 1964 SC 477
• Ujjam Bai v. State of UP, AIR 1962 SC 1621
• T C Basappa v. T Nagappa, AIR 1954 SC 440

Statutes

• Administrative Tribunals Act, 1985
• American Administrative Procedure Act, 1946
• Constitution of India, 1949

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 Error of Law and Fact and scope of Judicial Review in Administrative Law appeared first on iPleaders.

This article is written by Srishti Kaushal, a first-year student in Rajiv Gandhi National University of Law, Punjab pursuing B.A.LLB (Hons.). It explains the importance of a marketing agreement and its essentials.

Introduction

Marketing refers to activities undertaken by a business to promote its goods and services in the market. It is a very important step that is required by any business as it allows a company to:

• Build and maintain its reputation;
• Inform customers about the various goods and services offered, boost its sales;
• Maintain relevance by producing goods and services which are required in the market; thereby enabling the company to make informed decisions.

Many times, a  business hires outside contractors to boost its marketing efforts. Such outside contractors can be individuals, marketing companies, etc. They help a company in creating, implementing and sustaining market strategies which give a boost to its business. When this is done, the business enters into a marketing agreement with the marketer. 

In this article, we will discuss what is a marketing agreement, why is it required and what are the essentials that a marketing agreement must contain.

What is a Marketing Agreement?

One of the most essential documents a marketer would need is a marketing agreement. It is a legally binding document, signed by all parties involved, which lays down the scope of the work, duties, and expectations of the parties, remunerations, legal remedies available in case of a breach, etc.

Thus, a marketing agreement is essentially a legally binding contract between two parties. One of them is offering their goods and services in the market while the other is the one who would market or promote these goods in the market.

Illustration: ‘A’ is a bank providing financial services, while ‘B’ is engaged in telemarketing. ‘A’ enters into a contract with ‘B’ to market these services by making calls to various customers for 6 months. This contract is based on a marketing agreement and it contains all terms and conditions guiding their relationship. 

Why do you need a marketing agreement?

Following with the above illustration, ‘A’ and ‘B’ could have simply discussed what they expected from each other so that A’s services are marketed and B could have gone and done what they discussed. The question which arises is what was the need for a written marketing agreement. To answer this question, let us look at the importance of such an agreement:

• It allows the parties to provide a clear written explanation about what they expect from each other. This way, it clarifies the scope of work and ensures accountability.
• It clearly provides what can be negotiated and what cannot be negotiated and thus helps in avoiding time wastage and confusion.
• It lays down proper deadlines that have to be followed, thus ensuring efficiency.
• It clearly provides how and for what the remuneration would be given and payments would be made. Thus, a marketing agreement goes a long way in creating a feeling of faithfulness and trust in the minds of the parties involved.
• A good marketing agreement also helps in ensuring that no party releases vital information of the company policies to the public and thus eases doubts of treachery in the minds of the parties. 
• It provides for penalties that can be given in case a party fails to perform its work or goes against the agreement. Hence, it provides assurance to the parties.
• Most importantly, it provides for what would happen in case one party defaults the agreement. Thereby, it acts as a safety net and provides legal protection to the parties.

Hence understandably, a marketing agreement is a very essential legal document.

Challenges faced while drafting a marketing agreement

While drafting marketing agreements, several challenges can be faced. Some of them are:

• The clarity in terms of employment

Marketing agreements are usually entered into for a period of 2 years or more. Thus, it becomes exceedingly important for the person who is drafting the agreement to ensure that the terms of the contract are very clear. If these terms are not clear a lot of additional time and effort of the parties is wasted. 

• Subject-specific Documentation

The drafting process can be very complicated as the requirements of marketing agreement differ from industry to industry and state to state. As such it must cater to each organization specifically.

• Vagueness in Clauses

A clause in a contract can either be specific or generic. For example, the results can either have specific provisions like return on investment, while a clause with general provisions can provide for things like brand building, social media awareness etc. A specific clause is always preferred but drafting a specific clause can be a very complicated process, which requires understanding the complete company profile.

• Formulating a time frame

While drafting a marketing agreement, the inclusion of an incorrect time frame or deadline can lead to enormous problematic consequences. Hence, before including any date, the person drafting the contract needs to have proper discussions with the parties involved.

• Unclear limitations and liabilities

A major problem that arises while drafting a marketing agreement is putting down the liabilities which the parties have to face if the agreement is broken. This is because each party wants to protect and give benefits to themselves. While drafting, it needs to be ensured that the rights of both parties are adequately protected.

Essentials of Marketing Agreement

A marketing agreement does not have a clearly defined structure because of its creative nature. But there are certain essential elements that every marketing agreement must-have. Let’s discuss these elements in detail:

• Parties and their relationship

1. The marketing agreement should clearly mention the names and essential contact details of the parties involved. 
2. The agreement should also mention whether the employment of the marketer is on a retainer basis (long term for a fixed fee or otherwise decided) or a fixed-term basis (definite start and end to the relationship). 
3. It should be mentioned whether the agreement is exclusive or not. This means the agreement should specify whether the marketer is the exclusive provider of marketing services for the particular duration of the agreement to the business or not. 

• Scope of the work

The marketing agreement must clearly define the work that the parties are required to perform as it serves as a record of the expectations of each party. Hence, for instance, in reference to the marketer, it can specify that the marketer is supposed to prepare marketing strategies, carry out marketing research, what is the mode of execution of marketing strategy, etc. In terms of the business, it may specify what information must be provided, etc. It can also specify how deliverables will be reviewed and how approval/rejection will be handled and what are the implications of not completing the work. Additionally, the overall aims and objectives of the agreement can also be mentioned here.

It should also contain a clause regarding how either party can request the other party to do work which has not been expressly mentioned in the contract.

• Remuneration Clause

This clause must clarify all the terms related to the overall amount to be paid to the marketer as well as the payment structure and cycle. The payment may be made regularly (like on a monthly basis), or after the entire work has been completed, or it could even be on a performance basis. 

This clause must be very detailed, and should also provide the actions that the marketer can undertake in case the business fails to make the payment.

• Expenditure Clause

The agreement should tell in detail the predetermined budget as well as the terms of expenditure that each party would incur. For example, it should specify who (the business or the marketer) would pay for the taxes which arise during the marketing process.

• Timeline for Completion of work

There should be a clause in the agreement containing information about the time frame for completion of the work. This time frame directs the services given by the parties. To understand this let’s look at an illustration: if ‘A’ is a business which requires ‘B’, a marketing firm to make a marketing strategy for 3 products and implement it, this clause in their marketing agreement must provide:

• How long will the marketing firm provide services to the business?
• When the different components and deliverables of the project are due,
• And any other date-specific information.

• Non-disclosure/ Confidentiality Clause

When a marketer and a business organization work together, they share a lot of information. Some of this information must be kept a secret. Hence, in regard to such information, confidentiality must be maintained. For instance, the marketer can be required to keep all information about the company’s internal marketing and sales policies, which affect the business in the long run, confidential. At the same time, the business organization must not tell anyone about the unique aspects of the strategies it uses by way of which it formulates and implements a plan. 

This clause should clearly define what is confidential and lay down that all confidential information is to be protected. It should also state the circumstances in which disclosure is allowed.

At times this is made as a completely different agreement. In such cases, this clause would only state that a confidentiality agreement has been signed by the parties. 

• Dispute Resolution

This clause must answer when, where and how the disputes arising between the parties should be settled.

For instance, it can provide that in case of a dispute, an internal informal meeting for dispute resolution should happen. Following this, mediation or arbitration can be used for dispute resolution. The clause should clearly specify how the mediator or an arbitrator would be appointed and the rules that would be followed during this process. It can also provide for litigation and specify the court which has jurisdiction to look into this case.

• Intellectual Property Rights

This clause of the marketing agreement should specify how the intellectual property created as a result of marketing would be handled. It should clearly tell who owns the intellectual property created during and after the work has been performed; if owned by the marketer, this clause should specify if a license has been given to the business to use the intellectual property, for how long it is given, etc.

• Involvement of third parties

For successful marketing, the marketer needs to take services from third parties like search engines, advertising platforms, printers, social media sites, etc. The third parties involved and to whom they are responsible should be clearly mentioned in the agreement.

For example, it can be provided that the marketer will not be liable for acts or omissions of the third party, for reasons beyond its control. Hence, Let’s assume that the third party is Facebook. Now, in the instance where Facebook’s server fails and because of this the business’ service is not marketed on Facebook, the marketer cannot be held liable.

• Termination Clause

This clause should cover how and when can the agreement be prematurely terminated. It should be specified whether either party can terminate the agreement and the circumstances in which they can do so. It should also provide details regarding the penalty to be imposed upon the party who prematurely terminates the agreement. 

For instance, it can allow the parties to terminate the agreement if a clause of the marketing agreement has been violated. It can allow the business to terminate it if the marketer does not perform up to standards and fails to meet the required results. Similarly, the marketers can be allowed to terminate the agreement if the business does not give proper instructions to it or rips them of their intellectual property.

Conclusion

A marketing agreement is clearly a very essential legal document that must clearly define what each party would do and how they will do it. By setting out clear rules and expectations that each party has, it enables all the parties to run their practice peacefully and not fall into costly disputes. 

While these essential clauses must be present in a marketing agreement, it cannot be ignored that many clauses would be completely dependant upon the laws of a particular state and industry. Thus, before drafting a new marketing agreement or signing one based upon an available template, the parties must ensure that the agreement meets their needs and requirements and enables their growth. 

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 Essentials of a Marketing Agreement appeared first on iPleaders.

This article is written by Mehar Verma, a 3rd-year law student from Jindal Global Law School. In this article, the author talks about the landmark judgments passed in the year 2019, by the Apex Court of the country.

Introduction

The highest court of India, the Supreme Court is busy all along the year and delivers some crucial judgments, which shape the legal system of India. In 2019, the Court addressed some compelling questions of law. Some of the significant judgments passed in the previous year are discussed below.

Divestment of CBI’s Director

The Central Vigilance Commission (CVC), on 23rd October 2018, took away the powers and functions of Mr. Alok Kumar Verma, Director of Central Bureau of Investigation under the Prevention of Corruption Act, 1988. Thereafter a writ petition was filed challenging the validity of the said order and the petitioners argued that the order passed by the Central Government was violative of Section 4 of Delhi Special Police Establishment (DSPE) Act and the Supreme Court guidelines issued in Vineet Narain case. Under Section 4A of the DSPE Act, the approval of the Selection Committee is necessary to divest the powers of the director of CBI.

Judgment: On 8th January 2019, the Supreme Court held that the orders issued by the Central Government were not valid and thus quashed them. Alok Verma was reinstated with his powers and duties.

(Case name: Alok Verma V. Union of India, decided on 08.01.2019)

The Constitutional validity of Insolvency and Bankruptcy Code upheld

The constitutional validity of the IBC and National Company Law Tribunal has been questioned again and again, and the Supreme Court finally settled the challenges in the landmark case of Swiss Ribbons Pvt Ltd. v Union of India. A two bench judge held that the difference between operational creditors and financial creditors were based on intelligible differentia and thus not violative of Article 14 of the Constitution. The petition also challenged Section 12A and Section 29A of the code. Section 12A of the code prescribed threshold of 90% of the Committee of Creditors for allowing withdrawal of resolution application. However, the Supreme Court did not see any difficulty with such a high threshold and upheld the validity of the said Section.

Judgment: The Supreme Court upheld the constitutional validity of Insolvency and Bankruptcy Code, 2016 and NCLT.

(Case name: Swiss Ribbons Pvt Ltd anr v Union of India, decided on 25.01.2019)

Reliance Companies held guilty of contempt

In the Ericsson case, the reliance company owed Rs. 550 Crores to its creditors, out of which only Rs. 118 Crores had been deposited with the Court. Ericsson had filed 3 contempt plea against the reliance company, and in its judgment, the Supreme Court held that Reliance’s chairman, Mr. Anil Ambani is required to pay his dues in four weeks or he would face jail time. Further, a fine of Rs one Crore was imposed on all three reliance companies, Reliance Telecom, Reliance Infra Fel and RCom as they were also held guilty of contempt.

While pronouncing its judgment, the court also dismissed its two court master as an order issued by the Court on January 7, 2019, was tampered with. The order clearly stated that the personal presence of Ambani and other officials in the next hearing cannot be dispensed with, whereas the order uploaded on the official website did not provide the same.

Judgment: Anil Ambani and the reliance companies held guilty of contempt for defaulting payment to its creditor, Ericsson as per the previous undertaking is given to the Court.

(Case name: Reliance Communication Ltd and others v State Bank of India and others, decided on 20.02.2019)

Sarvana Bhavan founder held guilty for the murder

P Rajagopal, the founder of the famous South Indian restaurant, Sarvana Bhavan, started his journey by selling tea and helping at a grocery store. He then opened his first outlet in Chennai in 1981 and then there was no looking back for him, soon his restaurants had branches all over India and abroad as well. Things took a downfall for Rajagopal in 2001, when he was accused of threatening, abducting and murdering his former employee so that he could marry the deceased’s wife, Jeevajothi. The High Court of Madras held the accused guilty of murder under Section 302, IPC, which was appealed by Rajagopal. The Supreme Court on 29th April 2019 dismissed the appeals filed and held P Rajagopal guilty for murder, awarding him a life sentence.

Rajagopal was given time till July to surrender and serve his sentence however, he suffered from a cardiac arrest and passed away on July 18, 2019.

Judgment: Founder of famous restaurant Sarvana Bhavan, P Rajagopal and five others sentenced with life imprisonment for the murder of his ex-employee.

(Case name: Pattu Rajan and others v State of Tamil Nadu, decided on 29.03.2019)

Cinema ban in West Bengal overturned

Bengali film “Bhobishyoter Bhoot” was stopped from screening by the Bengal Government in most of the cinemas. The Government contended that the movie was politically sensitive and it may hurt some sentiments and cause disorder in the State. Thereafter, a plea was filed by the producers of the film claiming their fundamental right to speech and expression has been violated. The Supreme Court while deciding the case imposed a fine of Rs. 20 Lakhs on the West Bengal government as compensation to the producers for the loss they suffered due to the virtual ban imposed. Further, the Court held that the right to free speech and expression cannot be taken by public officials because they fear mob violence.

Judgment: Public officials and the State Government are subject to the rule of law and cannot gag free speech due to fear of violence. The ban imposed on the Bengali film was overturned and compensation was provided to the producers.

(Case name: Indibility Creative Pvt Ltd and others v Government of West Bengal and others, decided on 11.04.2019)

CJI of India accused in a sexual harassment case

On 19th April 2019, an ex-staff of the Supreme Court alleged that she was sexually harassed by the former Chief Justice of India, Mr. Ranjan Gogoi who denied all the allegations made against him. A three-judge bench began hearing the matter and an in house panel was set up to look into the allegations made against the CJI. During the hearing, the bench ordered to conduct an inquiry into the alleged conspiracy and the report and the findings of the inquiry were submitted to the bench in a sealed cover. The inhouse panel concluded that Mr. Ranjan Gogoi should be held free of all charges and was given a free chit. As the details of the inquiry made were never shown to the public, many contended that the method was unfair and discriminatory. Moreover, the complainant was not allowed to show any video or audio during the proceedings, her lawyer was not present during the proceedings and she was not informed about the procedure adopted by the committee in reviewing the case.

Judgment: A three-judge bench held an inquiry against the former CJI, Mr. Ranjan Gogoi in the matter of sexual harassment allegations made against him by an ex-employee of the Court. Later, he was given a clean chit.

(Case name: In re Matter of Great Public Importance touching upon the Independence of the Judiciary, decided on 25.04.2019)

Reservation in promotions under Karnataka Act upheld

Karnataka in 2002, enacted a law that stated consequential seniority would be applicable while dealing with promotions of the SC/ST employees in government offices. This implied that a reserved category employee could be promoted before a senior employee belonging to the general category. In 2007 the Supreme Court held that the law passed by the Karnataka Government did not comply with the guidelines established under the Nagraj case and was thus unconstitutional. Subsequently, the Karnataka Government set up a Committee to demonstrate the criteria laid down in the Nagraj case has been fulfilled, i.e. (1) current backwardness of SC/ST (2) inadequate representation and (3) and impact on administrative efficiency and thereafter re-enacted the earlier law. The constitutional validity of the re-enacted law was questioned. The Supreme Court held that the deficiency that was noted in the 2002 Act have been fulfilled and the Reservation Act 2018 is thereby valid under Article 16(4A) of the Constitution.

Judgment: The constitutional validity of the Karnataka Act approving consequential seniority in promotions for the reserved category was upheld.

(Case name: BK Pavitra and others v Union of India, decided on 10.05.2019)

Drinking liquor in private vehicle, an offence under prohibition laws in Bihar

The Bihar Excise (Amendment) Act 2016, prohibits the possession, consumption, and sale of alcohol within the territory of the State. The meaning of the word ‘public place’ mentioned in the said Act was questioned before the Apex Court after a man jailed on being found drunk in his private car in Bihar. The appellant contended that as no bottle of liquor was found on him and as he was traveling in his private car, the FIR against him must be quashed. The Supreme Court held that the FIR will not be quashed and the man is liable under the Bihar Excise Act, 2016. Consumption of liquor in a public place, even if done in a private vehicle is an offense under the Act. The Court also held that as per the Act if a person enters into the territory of Bihar in a drunken State even when the consumption of alcohol took place outside the State, he be liable under the Act.

Judgment: Consumption of liquor in a private vehicle in a public space, comes under the definition of ‘public space’, according to the Bihar Excise Act, 2016.

(Case name: Satvinder Singh Saluja and others v State of Bihar, decided on 01.07.2019)

Section 148 of the Negotiable Instrument Act, 1881: Retrospective in nature

Section 148 was introduced in the Negotiable instruments Act, 1181 by way of amendment in 2018. The Section states that the Court may order the drawer to deposit at least 20% of the compensation or relief awarded by the Trial Court, within 60 days from the date of the order passed. In its judgment, the Supreme Court held that Section 148 of the Act should have retrospective effect and is thus also applicable for those complaints as well which were filed before the amendment took place.

Judgment: Section 148 applies to cases even when the criminal complaint under Section 138 was filed before the amendment of the Act.

(Case name: Surinder Singh Desawal v Virender Gandhi, decided on 29.05.2019)

Registration of Amrapali under RERA Cancelled

A bench headed by Justice Arun Mishra held Amrapali and other authorities of Noida and Greater Noida guilty of defrauding home buyers. The group diverted the money to create personal assets for the directors of Amrapali and failed to complete the project on time. The Supreme Court ordered the cancellation of the Real Estate Regulation and Development Act (RERA) registration of the Amrapali group and ordered National Buildings Construction Corporation Limited (NBCC) to complete all the pending projects of the group. An action under the Prevention of Money Laundering Act and Foreign Exchange Management Act is taken against the Amrapali directors and a periodic report of the same is to be submitted to the Supreme Court.

Judgment: The Amrapali group was banned from taking any real estate project in the future as their registration under RERA was canceled by the Supreme Court for money laundering. The court also ordered the completion of more than 42,000 flats by NBCC which was previously taken by the Amrapali group.

(Case name: Bikram Chatterji and others v Union of India and others, decided on 23.07.2019)

Death penalty awarded for rape and murder of a minor girl

In 2010, the accused with another, kidnapped the victims, a 10-year-old girl, and her 7-year-old brother. The girl was then raped and thereafter both the victims were thrown in a canal alive, causing their death. One of the convicts was killed during an encounter and the High Court awarded the death penalty to the other convict. The judgment of the High Court was appealed in the Supreme Court and was heard by a three bench judge. The majority of the judges upheld the conviction of the death penalty however, Justice Sanjiv Khanna had a dissenting opinion. He believed that the convict should not be given the death penalty as the case does not fall under the category of ‘rarest of rare’ case, but the appellant should be given the punishment to suffer for life in imprisonment as the case would fall under a special category.

In another case, Ravi v State of Maharashtra, a man was awarded the death penalty for committing rape and murder of a 2-year-old.

Judgment: Death penalty was given for committing the crime of rape and murder of minor girls.

(Case name: Manoharan v State, decided on 21.08.2019)

Habeas corpus petitions filed against the detention of Kashmiri MLA

A state-wise ban was imposed on the State of Jammu and Kashmir after the Parliament abrogated Article 370 of the Constitution. A virtual lockdown was imposed and various political leaders and non-political persons were detained since August 5, 2019, when the Centre passed an Act taking away the special status that was granted to the State. On 19th August 2019, general secretary of the Communist Party of India, Sitaram Yechury filed a habeas corpus petition in the Supreme Court challenging the illegality and constitutional validity of the detention imposed leader of his party Mohammed Yousuf Tarigiami. The Supreme court allowed the petitioner to visit the detenu however, the judgment passed was highly criticized as the bench did not question the grounds on which detention was placed by the Central Government. Moreover, the petitioner was permitted to only meet his leader and was not allowed to carry out any other political activities. He was also required to submit a report on his return to the Apex Court.

Judgment: In response to the habeas corpus petition filed by the general secretary of the Communist Party of India, the Supreme Court allowed him to visit the detenu. However, restrictions were imposed on his meet and no justification was given to validate the detention imposed by the Central Government.

(Case name: Sitaram Yechury v Union of India, decided on 28.08.2019)

Government-funded NGOs come under RTI

While deciding an appeal filed by the DAV management wherein they contended that they are not public authorities and thus do not come under Right to Information Act, the Court held that public authorities defined under Section 2(h) of the Right to Information Act, 2005 would include all such institutions which are ‘substantially’ financed by the Government. Substantially financing does not mean that the government should finance 50% or more, but it means that a large portion is financed by the government and the finance can be either direct or indirect. This means that authorities that are financed by the government including the NGOs will have to maintain records as prescribed in the Act and vital information has to be presented to every citizen who asks for the same. The Supreme Court added that every citizen has a right to know where the money is being spent by their government, thus NGOs financed by the government should be transparent in its proceedings and records.

Judgment: NGOs which are directly or indirectly, substantially financed by the government come under the RTI Act and thus every citizen has the right to ask for information from them.

(Case name: DAV College Trust and Management Society v Director of Public Instruction, decided on 17.09.2019)

43-year-old precedent overruled by the Supreme Court

The bench headed by Justice RF Nariman held that even at the post cognizance stage a Magistrate can invoke his powers under Section 156(3) of CrPC. A 43-year-old judgment which held that Section 156(3) of CrPC can only be invoked at a pre cognizance stage was overruled.

(Case name: Vinubhai Haribhai Malaviya and others v The State of Gujarat and others, decided on 16.10.2019)

Supreme Court verdict passed in Ayodhya- Babri Masjid case

The Ayodhya- Babri Masjid dispute is the longest property dispute in the history of India. The case was finally concluded by the Supreme Court after 134 years from the first case filed on this matter. The Allahabad High Court delivered a judgment in 2010 wherein the land in dispute was divided into three equal parts, the judgment did not satisfy any of the parties involved and thus an appeal was filed in Supreme Court. After 9 years and 40 days of continuous hearing, the Court gave one of the most crucial judgments. The Court after observing the developments of the case scrapped the High Court verdict and held that the land in dispute is to be awarded to the Hindu Deity ‘Ram’ for the construction of the temple. It was observed that the land was not of Islamic origin and the Masjid was not built on vacant land. The Court also ordered that a suitable alternative land of 5 acres is to be allotted to the Sunni Waqf Board for construction of the mosque in Ayodhya itself.

Judgment: The disputed land was given to Ram Lalla and the Central Government has been ordered to formulate a scheme and set up a trust within 3 months for the construction of the temple.

(Case name: M Siddiq through Lrs v Mahant Suresh Das and others, decided on 08.11.2019)

Chief Justice of India comes under RTI

In November, the Supreme Court in its historic judgment held that the CJI comes under the Right to Information Act and is a public authority under Section 2(h) of the Act. This implies that the CJI is to be transparent and is answerable to all questions raised by the citizens of the County. However, the court also emphasized the importance of maintaining confidentiality under certain aspects of the judiciary’s working. The RTI will apply to CJI only when it is in the interest of the public and does not hamper the proceedings of the judiciary in any manner.

Judgment: CJI is a public authority under the RTI Act.

(Case name: Central Public Information Officer, Supreme Court v Subhash Chandra Agarwal, decided on 13.11.2019)

Aadhar Card Judgment referred to a larger bench and Section 184 of Finance Act upheld

The Supreme Court delivered its judgment on the constitutional validity of Section 184 of the Finance Act, 2017 and whether the Act comes under the definition of Money Bill as defined under Article 110 of the Constitution of India. Section 184 of the Act was challenged because it gave the power of appointment and service conditions of members of a Tribunal, Appellate Tribunal and other authorities to the Central Government and thus was considered unconstitutional and arbitrary by the petitioners. The Court held that the powers delegated to the Center cannot be questioned and taken away on the mere possibility of misuse of such powers. The issue of whether Finance Act can be referred to as a Money Bill or not was referred to a larger bench for further examination.

Judgment: The 5 Judges Bench doubted the correctness of referring to the Finance Act as a Money Bill and thus it was referred to a larger Bench. However, the Court upheld the legal validity of Section 184 of the Finance Act, 2017.

(Case name: Rojer Mathew v South Indian Bank Ltd, decided on 13.11.2019)

Review of Sabarimala case still pending

In September 2018 the Supreme Court in its verdict uplifted the age-long ban imposed on the entry of women in the temple of Sabarimala in Kerala. The Court declared the ban as unconstitutional and held that women of all age groups would be granted the right to enter the temple. The verdict led to protests by the devotees of Lord Ayyappa which soon took a violent turn and thus multiple petitions to review the judgment were filed. The Court held that every citizen has the right to practice, propagate and promote their religious beliefs under Article 25 of the Constitution and the right of entry into religious places by women is not restricted to Sabarimala but also includes other religions and sects. The Court also highlighted that the issue of whether a ban of entry of women comes under ‘essential practice’ or is an integral part of the religion is to be considered. For this, review petitions were referred to a seven-member bench.

Judgment: To determine questions relating to essential religious practices, the Sabarimala case was referred to a larger bench.

(Case name: Kantaru Rajeevaru v Indian Young Lawyers Association, decided on 14.11.2019)

Rafale deal upheld

The Prime Minister of India, Mr. Narendra Modi entered into a deal with France to purchase 36 Rafale fighter aircraft. After the deal was signed multiple litigants filed petitions in the Supreme Court claiming that the deal made by Mr. Modi was not according to the established procedure. Questions regarding the decision-making process, pricing irregularities, offset partners were made in the petitions. In 2018, the Court after hearing both the parties concluded that there were no irregularities based upon the evidence procured and thereby a review petition was filed, challenging the earlier judgment passed. This year the Court dismissed the review petitions and held that it had limited jurisdiction under the defence contracts.

Judgment: All the defendants held not guilty and the rafale deal upheld after the Court dismisses the review petitions filed.

(Case name: Manohar Lal Sharma v Narendra Modi, decided on 14.11.2019) 

Section 87 of Arbitration and Conciliation Act expelled

Before the 2015 Amendment, the then Section 36 of the Act provided that an arbitral award could not be enforced if there was a pending petition and this was termed as the automatic stay. This Section was substituted in 2015 and the Act stated that unless a stay order has been passed the arbitral award does not become unenforceable and mere filing of a petition is not enough to render an arbitral award as not enforceable. The 2015 amendment also provided that the changed Act would apply only to arbitral proceedings which commenced on or after the passing of 2015 Amendment. Section 87 of the Act introduced as an amendment in 2019 discarded the changes made in the 2015 amendment and re-introduced automatic stay. The Court held that this would cause a delay in the arbitration proceedings and increase interference of the Court in arbitrary matters thus defeating the whole purpose of the Arbitration and Conciliation Act.

Judgment: Supreme Court struck down Section 87 of the Act, introduced in the 2019 Amendment as it was arbitrary.

(Case name: Hindustan Construction Company Ltd v Union of India, decided on 27.11.2019)

Conclusion

2019 observed some good as well as some disappointing judgment from the end of the Supreme Court. The year started on a rather good note wherein the constitutional validity of Insolvency and Bankruptcy was upheld, reliance companies were held guilty of defrauding its creditors, owner, and founder of Saravana Bhavan, Mr. P Rajagopal was sentenced to life imprisonment in the case of murdering his ex-employee, the cinema ban in West Bengal was overturned and the producers were awarded compensation as well, death penalty was awarded for rape and murder of minor girls and many more. The year also witnessed certain controversial judgments like the in the sexual harassment case against the CJI, response to the petitions filed against the detention of Kashmiris MLAs or the dismissal of the review petitions in the rafale case. The Supreme Court also gave the verdict on momentous cases like Ayodhya- Babri Masjid dispute, Sabarimala case and Section 87 of the Arbitration and Conciliation Act.

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 20 landmark judgments passed by the Supreme Court in 2019 appeared first on iPleaders.

This article is written by Ramanuj Mukherjee, CEO and Yavanika Shah, Associate Consultant, LawSikho.

Have you ever wondered what it takes for a company to go public? How many lawyers, investment bankers, CAs and CS have to work on a company like SBI Cards or IRCTC doing an IPO? How much do they get paid? What are the skills needed to do those jobs?

Why do companies publish these cryptic, unreadable, lengthy prospectus in a strange language? Why not just advertise on TV and newspaper enticing the common people to buy their shares as they entice people with buying soaps or mobile phones?

Have you thought about how the company decides on an offer price for its shares? What is book building and underwriting?

Do the mind-boggling complexities that go into the listing of stocks, or regulation of listed companies garner your curiosity? 

Going public is the ultimate dream of every startup founder! Or even every high growth business for that matter.

In fact, this is their investors’ dream too! 

Everyone wants to be able to exit their investments at a valuation that multiply their initial investment. However, who will finally buy out the VCs and PE investors and even the founders someday? Public investors, of course. And that happens when an IPO takes place.  

You must have noticed how excited the media gets when a Silicon Valley tech company goes for an IPO! Remember the time when Facebook went public?

All the richest people in the world, from Bill Gates to Mukesh Ambani, see their fortunes rise and fall based on the value of their shareholdings in their various listed companies.

Why do private companies go public?

There are a lot of reasons that a company may decide to go public. Mostly, it is to secure capital to expand and offer an exit to existing private investors. Not only retail investors but many large financial institutions such as hedge funds, family offices, mutual funds, insurance companies, and pension funds invest in listed companies. In order to ensure fair play in the market, government through regulators like SEBI and in some cases MCA and RBI has introduced many different laws, regulations, and rules that are stringently implemented. 

Failure to implement these rules or any manipulation can majorly impact the economy or the trustworthiness of the market, scaring away investors. This is the primary reason that we have voluminous and watertight laws and regulations in place for any listing of new companies, as well as operations of companies already listed. 

Why is Capital Markets a sought after area of law practice?

IPO investment documents, due diligence, structuring securities, dealing with multiple intermediaries, massive list of compliances involved, necessary regulatory approvals and most of all managing everything within a limited window of time can often be a hard nut to crack. 

An IPO of a large enough company can require hundreds of lawyers working on due diligence, compliances, and documentation.

The intensive planning and strategizing that the process requires is hard to be matched even in corporate law firms. Companies and service providers such as investment banks and law firms have to plan an IPO for anywhere between one to two years before they actually go public!

Capital market is undoubtedly one of the highest value, most resource-intensive and super-premium areas of law practice that is reserved for only the biggest law firms. 

What kind of problems do IPOs often run into?

We all have seen how WeWork’s IPO turned into a massive flameout, despite having raised private funding worth tens of billions of dollars and backing from SoftBank. This mostly happened after the company made disclosures in its Draft Red Herring Prospectus regarding certain practices on the run up for their IPO. These issues were picked up by mainstream analysts and written about extensively, which resulted in the listing eventually failing to go through as credibility of the company plummeted.

While not all IPOs fail in this way but many of them happen under the shadow of a bunch of risks, which sometimes materialize and IPOs run into trouble. Here is a list of IPOs that had to be pulled out in 2019, for example. Such situations call for the expertise of Capital Markets lawyers as well. Whether the IPO goes through to has to be canceled, capital markets lawyers always make money!

While all of it does make capital markets a very interesting field to specialize in, it also, at the same time very demanding. From drafting and reviewing the drafts to parlays with regulators and negotiations with key stakeholders in the process, it is usually difficult to describe a capital markets lawyer’s usual day. 

Except one thing, they spent their initial years couped up in their office either doing a Due Diligence or drafting voluminous documents that need extremely careful language. When they become more senior, they may spend more time in meetings, negotiating and making the deal possible by overcoming various hurdles.

On most days, the transactions are time-bound and can lead to unexpected problems and challenges at any point. An eye for details and an in-depth understanding of capital market regulations and processes is absolutely necessary to succeed in this area of work. 

We list down different kinds of work a capital markets lawyer undertakes:

#1 Due Diligence

Due diligence for capital markets transactions is the most vigorous kind of legal due diligence. It calls for the highest level of scrutiny since it deals with raising money from the public at large. Any kind of mistake can lead to a financial disaster for a lot of people!

Mostly, junior lawyers are entrusted with the task to undertake the due diligence before the company initiates its procedure of drafting the prospectus. 

There are specialized teams being set up in many firms that cater specially to large DDs. These are sometimes called Transaction Support Groups. Apart from Capital Market teams, one could get a job in these teams too.

Global law firm Clifford Chance has a specialized and captive LPO set up in Gurgaon to deal with this kind of work (and other stuff too). 

#2 Drafting of Red Herring Prospectus and other documents

Red herring prospectus is a draft prospectus circulated by an entity ahead of a public stock or bond offering. It lacks certain details such as the number of shares being offered or the initial price and is circulated to generate interest in a potential upcoming sale of shares or bonds.

Click Above

The red herring prospectus needs to mention disclosures to the public by the company. These disclosures are therefore put in a certain language that discloses the risks to the potential shareholder. Further, various disclosures need to be verified by experts like taxation lawyers or environmental lawyers. All this can take months to be drafted and is a critical part of raising capital from the public.

Apart from DRHP, there are other documents that capital market lawyers have to draft such as placement documents, offering circulars or information memorandums. Lawyers are also tasked with drafting/reviewing and negotiating the underwriting agreement, depository agreement, escrow agreements, etc.

#3 Strategizing/Deal Structuring

Strategizing a capital market transaction requires a very high level of expertise in the field. Since the transaction deals with the public at large, every little thing that goes in writing need not only be verified but all the risks involved with putting the information in public domain need to be calculated.

There are many critical strategic decisions to be made, from the place and bourse of choice for listing, to whether the money would be raised through debenture issue, QIP or IPO, to what would be the terms and conditions, including exits of strategic investors and even which underwriter to go with – all of these are critical decisions to make. Finding initial backers to ensure that the IPO is guaranteed success even before launch is also a common practice. Getting the timing right is also critical, and senior lawyers put their heads together to figure out all possible hurdles ahead, including any regulatory difficulties.

Business concerns, timing, materializing important details about the requisite amounts, all these together form a part of deal structuring that can take months of collaborative efforts by the partners working with regulators as well as the lawyers. 

#4 Legal and Regulatory Advice

There is a lot of legal and advisory work that goes into planning and executing an IPO or debenture issue. It requires thousands of hours of work to ensure the company is ready to be listed on an exchange. 

A first-time borrower in the debt capital markets also requires a lot of lawyers’ time to prepare it for the new transaction.

Lawyers have to advice on issues like disclosure standards, prospectus liability issues, due diligence defence, cross-border legal and regulatory issues, conflicts between the corporate law requirements in two jurisdictions, double taxation issues that arise in connection with the returns that international investors get on their investments and other complex issues.

Companies and investors approach law firms years ahead of time in anticipation of IPO to help portfolio companies to achieve IPO-readiness. Law firms may then come up with an elaborate plan of action that requires further legal support for implementation.

When foreign subsidiaries are involved, or if a company is listing in a foreign stock exchange, law firms also provide support of liaisoning with foreign counsels and regulatory authorities.

Even after the company is listed, the process does not stop. The company then needs lawyers who would ensure that their IPOs comply with the SEBI regulations and all the necessary disclosures are made efficiently as well as effectively.

#5 Seeking Regulatory Approvals

There is a huge list of regulatory approval that the company needs at every stage of the transaction. Even before the drafting of the draft red herring prospectus, several regulatory filings essential to the company as well as the book-running lead-managers (BRLM) would need to be undertaken. The preparation of the financial statements as per the ICDR regulations, finalization of the business model and plan for the prospectus, obtaining regulatory clearance for the IPO are a few of the examples.

All these procedures involve the BRLMs, legal counsels working together with SEBI and the stock exchange.

A demanding specialization, capital markets calls for intensive long documents to be drafted and vetted with perfection. A plethora of high priority cases that demand long hours and communication with so many different parties adds to the complexities in the process. 

So why do lawyers still choose it? 

Maybe for the satisfaction, they would get in closing the transaction and listing it on the stock from the scratch. 

What do you think? What are the things we missed out that are a part of a capital markets lawyer’s day?

Do let us know by commenting below.

To know more about building a career in capital markets,  you can watch the webinar on career opportunities in capital markets by Ramanuj Mukherjee here.

You can also check out and download free course material for our Certificate Course in Capital Markets, Securities Laws, Insider Trading and SEBI Litigation here. Enrollment for the batch closes on the 14th of January. 

Here are other courses that might interest you:

DIPLOMA

Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution

Diploma in Cyber Law, Fintech Regulations and Technology Contracts

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

Diploma in Intellectual Property, Media and Entertainment Laws

EXECUTIVE CERTIFICATE COURSES

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

Certificate Course in Prevention of Sexual Harassment at the Workplace

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

Certificate Course in Advanced Criminal Litigation & Trial Advocacy

Certificate Course in Real Estate Laws

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

Certificate Course in Legal Practice Development and Management

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 Capital markets lawyers: what do they have to do for an IPO? appeared first on iPleaders.

This article is written by Shubhangi Upmanya, a student of Vivekananda Institute of professional studies, Indraprastha University. In this, she discusses The Union Judiciary and the Articles related to it, in-depth.

Introduction 

In ancient times, when any wrong was done, it was on the king to ensure that the culprit was punished so that the victim gets relief. After the constitution has been adopted This function of the king has been replaced by the Judiciary whereas the other functions such as making the law and executing them are done by the Legislature and the Executive.

In order to ensure transparency and fair work in the system, the constitution-makers kept these three organs independent of each other. The Judiciary is the ultimate interpreter of the rights while it acts as a guardian of the constitution. It can also conduct checks on the legislature and the executive and ensure that no one goes beyond their ambit of power. The Constitution ensures that the judiciary remains even-handed in all circumstances.

We have different levels of Judiciary which is present at the central level, the state level, and district level. In Part V of the constitution, chapter IV concerns the Union Judiciary. It consists of the Supreme Court and in this article, we would only be dealing with the Union Judiciary in depth.

Supreme Court – The Guardian of the Constitution

There can be discords arising in between the different units of the federation, that is when the Supreme Court comes into play. It’s the highest authority and the final interpreter of the law which means that it has the power to give final decisions on all the matters of the law. Its judgments are binding on all the lower courts. It has the power of judicial review through which it can review the action of the executive and the legislature.

Let’s look at Article 124 and what it says. 

Article 124 of the constitution,

The first part of this Article provides for the setting up of the Supreme Court which will be composed of one Chief Justice of India and only seven judges until the Parliament by law prescribes any more judges.

1. The second part of this Article states that the Chief Justice of India will be appointed by the President after consulting other judges whom he thinks suitable and will hold the office until he attains the age of 65 years. Whereas the president will have to take into account the Chief Justice’s opinion when he appoints the other judges.

• This Article in its part 2(a) says that a judge can by writing to the President, resign from his position, whereas, 
• this Article in its part 2(b) says that the judge can be removed under the provision contained in clause 4. 

We will be dealing with this Article in detail, under the upcoming topics.

Click Here

Appointment of the Chief Justice of India

According to Article 124(2), the Chief Justice of India will be appointed by the President and in pursuance of that, the President has to consult the judges of the Supreme Court and the High Courts which he thinks necessary. The president should also have a warrant regarding it.

The provision for the appointment of Chief Justice experienced many changes during the passage of time.

In this article, we will be discussing them in length.

Composition of the Court 

With respect to Article 124(2), the number of judges was only limited to seven but the parliament by law prescribed & amended that the number of judges should be increased to thirty-one, i.e thirty judges and the Chief Justice of India. 

This was done with a rationale that seven-judges will not be able to suffice the work, the Judiciary undertakes. In order to work efficiently, the number of judges should be increased otherwise the cases will keep on piling up and there will be more scenes of injustice.

Appointment of the Judges-Position before the 99th Amendment of Constitution 

After the adoption of the constitution, the tradition regarding the appointment of judges was that the senior-most judge was chosen as the Chief Justice of India whereas the Chief justice of India was consulted by the President, along with some other judges of the High court and Supreme court for the appointment of the judges of these two courts.

After some years, this tradition came to an end and the judges were selected according to their merit and not in accordance with their seniority.

To illustrate, suppose there is a judge and he has three senior judges above him but the President thinks that he is more capable of taking the position of the Chief Justice of India. So, he is appointed, leaving behind the seniority factor.

This led the senior-most judges to resign from their seats as the promotion to the designation of the Chief justice was their aim and experiencing a judge who is junior to them getting promoted to that post was a disrespect to them.

Well, this custom came to an end and the earlier method had a comeback when the old government was replaced by a new one. Again the promotion on the basis of the seniority method was reinstated. But the controversies didn’t end, the questions on the independence of the judiciary started to build up.

After which three cases were decided which brought the system of collegium into existence.

We will now look into these three cases.

Supremacy of Executive

[Judges Transfer Case I]

Judges Transfer Case I is known as SP Gupta v. Union of India.

This case ruled out that, whenever there is an issue between the different constitutional agencies, then the decision of the central government will prevail and the government will choose as to which view of the constitutional agency will be taken into consideration. Whereas, when the appointment of the Supreme Court judges is concerned then the opinion of the Chief Justice of India will not be in concurrence and it will be on the government to take the final decision.

As far as the word ‘may’ in Article 124(2) is concerned, the court stated that it only implies taking decision regarding which judge of the Supreme court and the High court has to be consulted while appointing the judges of the Supreme Court and High court, whereas it does not give an option to the government to take into consideration the opinion of the judges.

In this case, the supremacy of the Executive was maintained.

Judicial Supremacy 

[Judges Transfer Case II]

Judges Transfer Case II is known as Supreme court Advocates on Record Association v. Union of India. 

The system which was laid down in the first judge case created many problems. Let’s take one as an example – when the Chief Justice of India was asked to give his opinion, he let a junior judge take the position of the CJI without giving a chance to the senior judges. 

So, it was decided that there should be a collegium system which in the case of the Supreme Court will consist of the Chief Justice of India and two senior-most judges. And, while taking the decision as to who would take the post of CJI both of the judges of the collegium will give their opinion and CJI will have to take that into consideration. After that, the decision of the collegium will go to the President for his assent. Whereas, in the case of High Court it will be the Chief Justice of the High Court and the two senior-most judges, and the procedure thereon, is the same as for the SC. 

Now what really happened was that the Chief Justice of India, at times did not consider the opinion given by the other judges and would take the decision of his own and pass it on to the President for his assent. 

This case basically maintained judicial supremacy. Moreover, It ruled out the judgment of the first judge case and laid down the formation of the collegium system.

Expansion of the Collegium

[Judges Transfer Case III]

Judges Transfer Case III is known as  In Re Special Reference Case.

Well, the Judicial Supremacy continued to be in existence. Whenever the opinion of the collegium was not taken into consideration, it was not acceptable to the CJI.

This continued until the Executive approached the court for an advisory opinion of the Supreme Court.

Further, the court ordered to increase the number of judges in the collegium from two to four.

It also ruled out that the most senior-most judge will take the designation of CJI and as far as the judges of the Supreme court are concerned, the Supreme Court collegium will recommend the president to which he will give his assent.

Sole Opinion of Chief Justice of India without following consultation process: Not binding on Government

Judges Transfer Case III made it clear through its judgment that whenever the Chief Justice of India conveys to the President, his opinion without taking into account the opinion of the collegium then the opinion of the CJI alone, will be rejected until he follows the constitutional mandate.

To give an example, in 2018, Senior Advocate Indu Malhotra was recommended by the collegium consisting of Justice Deepak Misra, then Chief Justice of India. 

National Judicial Appointments Commission 

National Judicial Appointments Commission was introduced by 99th Amendment Act in 2014. As a result of which, two Acts were born, one of them stated the removal of the collegium system and the introduction of the National Judicial Appointments Commission and the second Act gave the process of the appointments mentioned in the first Article. This Amendment Act introduced Article 124A, Article 124B and Article 124C of the Constitution. It was passed by both the Houses of the Parliament in August 2014 while it received the assent of President in December 2014.

Many petitions were filed against this Amendment with the contention that it was against the separation of powers and it questions the independence of the judiciary as the members of the Executive were present in the NJAC.

After this, the case was referred to a five-judge bench that struck down the Amendment Act on the basis of unconstitutionality by a ratio of 4:1.

The Provisions of the National Judicial Appointments Commission 

[Article 124A]

The 99th Amendment Act introduced a new Article 124A in the constitution. This Article mentioned the members who would form the composition of the National Judicial Appointment Commission.

According to this Article, the National Judicial Appointment Commission will consist of the following people-

• The Chief Justice of India 
• Two senior-most judges of the Supreme court
• The Union Law Minister
• Two eminent people nominated unanimously by the  Chief Justice of India, the Prime Minister and leader of the opposition of the Lok Sabha

One member out of the two eminent people will be either be a woman or one belonging to the minority section or to the backward classes such as SC, ST, OBC, etc.

They will be nominated for a period of three years and cannot be renominated again.

Functions of National Judicial Appointments Commission 

[Article 124B]

Along with Article 124A, the 99th Amendment Act also stated for the insertion of Article 124B.

This Article provided for the functions of the National Judicial Appointments Commission(NJAC) which are as follows-

• This body will recommend people for the position of the Chief Justice of India, judges of the Supreme Court, Chief Justice of the High Court, and judges of the High Court.
• This body will also recommend the transfer of the Chief justice of the different High courts from one High Court to the other.
• It will thoroughly ensure that only the people who are capable to be promoted to these designations, get promoted.

Procedure for appointment to be regulated by the Parliament

[Article 124C]

Article  124C states the following:

• Parliament may enact any law to amend the provisions of the appointment of the Chief Justice of India, the judges of the Supreme court, or the Chief justice of the respective High Courts and the judges of the High Court.
• This Article enables the NJAC to enact by regulation any law that governs the functions of the NJAC, selection of the people for the post or any other matter that concerns the functioning of the NJAC.

Well, this article is considered as a contentious Article on the ground that, it allows the Parliament to appoint the judges of the Supreme court and the High Court which was against the concept of Separation of Powers. Besides, it gives the Nation Judicial Appointment Commission the power to make rules for itself.

[Supreme Court Advocates-on-Record Association v. Union of India, 2015]

In 2015, petitions were filed by the “Supreme Court Advocates on Record Association” and some of the senior advocates which challenged the constitutional validity of the National Judicial Appointment Commission and the 99th Amendment Act.

The contentions were regarding the independence of the Judiciary that it violated the provision of the constitution according to which the judiciary was kept independent to ensure bonafide acts.

Main points of Judgment of Justice Jagdish Singh Khehar – Fit to hold the office

This case was heard by the bench of five judges that involved Justice Jagdish Singh Khehar, Justice J Chelameswar, Justice Madan B Lokur, Justice Joseph and Justice Adarsh Kumar Goel. it was decided by the ratio of 4:1 with Justice J Chelameswar giving a dissenting opinion.

Justice Jagdish Singh Kehar gave the opinion that the clause (c) of Article 124A(1) is ultra vires with the basic elements of the constitution that is “Separation of Powers” and the “independence of the Judiciary”. He also stated that clause (d) of the same Act which talks about the appointment of two eminent persons is violative of the elements of the constitution and the basic structure for many reasons.

Seniority: Section 5(1) of the NJAC Act

Section 5(1) of the National Judicial Appointment Commission says that if the senior-most judge of the Supreme Court is fit to hold the office then he will be chosen as the Chief Justice of India.

This section makes sure that the possibility of a junior judge superseding the senior-most judge is mitigated. 

Whereas, Section 5(2) of the NJAC of the National Judicial Appointment Commission says that the appointment of judges of the Supreme Court will be done on the basis of merit and other criteria specified in clause 3 of Article 124.

Veto power to any two members of NJAC: Section 6(6) of the NJAC Act

In this article, we have learned that two eminent people will be appointed in the NJAC who will be a part of appointing the Chief Justice of India. Now, think about two people who are not accustomed to the judicial procedure and are a layman in the field of law, are appointed as the two eminent people by the reason of which they get to decide the next Chief Justice of India. Also, they have been given the veto power through which they can supersede even the judgment of the present Chief Justice of India, who is also a member of the NJAC. 

This was contrary to the provisions given in Section 6(6) of the National Judicial Appointment Commission. This Section stated that if any of the two members of the Commission disagree on the matter concerning the appointment of Chief Justice of the High Court then the commission will not recommend the person to that post.

NJAC Act could not come into effect prior to the coming into operation of the Ninety-ninth Amendment Act of the Constitution

Ninety-ninth Amendment came into existence in 2014, three new Articles were inserted in Section 2 which were Article 124A, Article 124B, and Article 124C.

Herein, the provision for the NJAC was laid down. The National Judicial Appointment Commission Bill was passed by the Lower House on August 13, 2014, and by the Upper House on August 14, 2014. After which it received the assent of the President in December.

But both the 99th Amendment Act and the National Judicial Appointment Commission were struck down on the basis that it was violative of the basic elements of the Constitution.

For the enactment of NJAC Act procedure provided under Article 368 need be followed 

In the Kesavananda Bharati v. Union of India, it was stated that any changes made in the constitution, through amendments, should only be to an extent that it does not violate the basic structure of the Constitution.

In order to enact the NJAC Act, it was necessary to take into consideration the basic structure provided under Article 368. On consideration of the same, it was found that it was hindering the basic structure of the constitution which was the concept of ‘separation of powers’. Therefore the NJAC Act was made null.

An ordinary Legislation can be invalidated for violating the constitutional provisions

The Forty-second Amendment which came in the year 1976 introduced various new Articles.

Article 32A disabled the Supreme Court to decide the constitutionality of any state law until it involves the constitutionality of any central law. Furthermore, through Article 131A, the Supreme Court was given the exclusive jurisdiction to check the constitutionality of the central law.

Whereas under Article 228A, the High Court was given a right to decide the constitutional validity of any state law. This law had to be decided by the High Court through a five-judge bench.

Any Act of legislation not found to be consistent with the provisions of the constitution will be stated as unconstitutional.  

Article 124-A is the edifice of the Constitution (Ninety-ninth Amendment) Act

Article 124A of the 99th Amendment Act is the edifice of the whole 99th Amendment Act, as it carries the entire structure of the Amendment Act and if it is rendered negatory then the Articles 124, 124B, 124C, Article 127, Article 128, Article 217, Article 222, Article 224, 224A, Article 231 will be restored back. 

To give an example, Article 124A(1) provides for the formation and the composition of NJAC, so if it is rendered invalid then the whole NJAC will be rendered unconstitutional and the 99th Amendment Act will be of no value.

Let’s see what Justice Madan B. Lokur said on this. 

Justice Madan B. Lokur

In his judgment, Justice Madan B. Lokur said that Article 124A was against the basic structure of the Constitution and without it, the other provisions can not stand.

Further, he pointed out that it also affected the President and the Chief Justice of India as the President was only left to take the recommendations whereas the CJI had to take into consideration the opinion of other people of the Commission.

Justice Kurian Joseph

Well, the eminent Judge stated a maxim in his judgment which was “Entia Non Sunt Multiplicanda Sine Necessitate” which literally means that things should not be multiplied without necessity. He emphasized delivering his judgment in simple language, through which he stated that involvement of any non-judicial body which here is the Executive will follow many structured bargains and if not that, it could lead to anything more worse. He further added that anything which dilutes the supremacy of the constitution should be nullified at its beginning.

Justice Adarsh Kumar Goel

The learned judge stated that the role of a non-judiciary post and the judges of the High Court and the Supreme Court is very different and they can be compared, therefore giving the veto power in hand of the non-judicial person who can overrule the power of the CJI is completely arbitrary.

Guidelines for improvement of the collegium system

While Justice Madan B Lokur in his judgment,  emphasized on improving the collegium system, after which a memorandum of procedures came into existence which issued guidelines for amending the collegium system.

Eligibility criteria 

With the views of the state government and central government considered, the MOP will check the minimum age requirement. 

Transparency in the appointment process

Transparency in the appointment of the judges is of utmost importance. The bench said that every proceeding and all the matters related to the appointment of judges should be updated on the website of the Ministry of Law, the Supreme court and the High court, whereas, every part of the discussion regarding it should be recorded.

Secretariat

For the better functioning of the collegium, a secretariat should be established for each High Court and the Supreme court.

It will ensure better procedures for the appointment of judges.

Complaints 

Complaint redressal is very necessary to ensure that all the functions are properly performed and all duties are properly disposed of. Therefore, a proper complaint mechanism should be formed.

Qualification of Judges 

Article 124 in its clause (4), provides a checklist for the qualification of the judges of Supreme court which is as follows-

The person,

• Should be a citizen of India,
• Should have been a judge of the High Court or of at least two courts in succession, for a span of five years, 
• Should have been an advocate of the High Court or at least two courts in succession, for a span of 10 years,
• And should be a distinguished jurist in the eyes of the President.

Tenure and Removal of Judges

According to Article 124(2), the judges of the Supreme court will hold their office until they reach the age of 65 years. That is they will get retired at the age of 65 years.

As far as the removal is concerned, Article 124(4) mentions that the judge can be removed on the ground of proved misdemeanor, the process for which is that the President will pass an order which will then be presented before both of the houses and it should pass with two-third majority of the members of the house present and voting.

We must not forget that the President should be proved incapable or guilty of his act. It can be proved through the procedure for the investigation regarding the same matter and the following procedure has to be laid down by the law of the Parliament. This right is given to the Parliament under Article 124(5).

Judges (Inquiry) Act, 1968 

In this Act, the procedure for the investigation into the charges against the judges was laid down.

The Judge can only be removed after proven misbehavior or incapacity.

This Act further specified that it will consist of the following people-

• Any judge of the Supreme court, or the Chief justice of the Supreme court,
• Any Chief Justice of the High Court, and
• Any person who is a distinguished jurist in the opinion of the Speaker.

These members will unanimously frame charges against the judge and will investigate it. 

Salaries and Allowances

Article 125 talks about the salaries and allowances to be given to the Judges of the Supreme court.

• In clause (1), it was mentioned that the judges of the Supreme Court will be paid the salaries determined by the Parliament by law. This is present in the second schedule until any other law regarding the salaries is made.
• In clause (2), it was further mentioned that the judges will get privileges, allowances, and rights regarding leave of absence and pension with respect to the law prescribed by the Parliament.

Now, the Parliament by law can alter the rights that may hamper the judge’s position. But this Article makes sure that it should not happen as it states further that, the Parliament should not enact any law which will stand as a disadvantage to the position of the judge after he has been appointed. 

Acting Chief Justice: Article 126

Article 126 talks about acting Chief Justice, let’s have a look.

Anytime during the tenure of the Chief Justice of India, if he is absent and is not able to dispose of his duties or his office is vacant for any reason, then the acting Chief justice will discharge the duties of the Chief Justice of India.

The seat of the Supreme Court: Article 130

In Article 130 it is mentioned that the Supreme Court will be seated in Delhi. Well, it is not a hard and fast rule but can be flexible as the Chief Justice of India may specify from time to time, which should be approved by the President.

Jurisdiction of the Supreme Court 

(1) A Court of Record

1. The jurisdiction of the Supreme Court under Article 129 is independent of the Courts Act

Contempt of court takes place when any person disobeys the orders of the court or through his demeanor disrespects the court.

Court of Record is that the proceedings of the court will be recorded so that they can act as a testimony in the future.

Well, Article 129 makes the Supreme Court the court of record and gives it the power to punish for its contempt.

PN Duda V. V.P. Shiv Shankar & others

In this case, it was ruled out that a person who has been punished for contempt should have caused hindrance to the procedure of the court and administration of justice whereas, no one should be punished for criticizing the judicial system.

Supreme Court’s power to punish for contempt of itself as well as subordinate courts

Article 215 of the Constitution does not empower the High Court to punish for contempt of the Supreme Court but the Supreme Court has the power to punish for contempt of High court and other subordinate courts.

In case, the Supreme court does not punish for its own contempt then the High Court has no say in it.

Contempt jurisdiction for protection of Registry

Supreme court has not only maintained the contempt of court in order to punish people to harm the judge’s reputation but also to protect the name of the Judiciary.

To give you an illustration, an advocate was barred from practising law for one month because he accused the registry of the court wherein he wrote the word ‘bench hunt’.

The Court ruled out that the bench is not constituted by the registry but by the Chief Justice of India and the contempt of registry shall be punished.

A Minister or official may also be guilty of contempt when the Contempt of Court is committed by the State 

When there is an issue before the court which is between the states on both sides of the state is one of the parties and the court give an order or decree which the state disobeys then the Supreme Court can make the State guilty of contempt.

The officials and ministers involved in the case will be thereto made liable for the same.

The Court’s unlimited power to compel obedience and compliance of its orders 

Under Article 142, the Supreme Court has been given the power to make an order in regard to the contempt of Court. 

That is, the Supreme Court can compel any person under this Article to obey the order which it has given.

(2) Original Jurisdiction-Article 131

The Supreme Court has original jurisdiction when it comes to matters related to the following-

• Between the Government of India and one or more than one states; or
• Between government of India and one or more states at the different sides; or
• Between two or more than two states.

It is further provided that its jurisdiction shall not cover the matter arising out of any agreement, engagement or any sort of treaty, which was present before the pre-constitutional time and is still in force. It also extends to the matters which provide that this jurisdiction shall not apply to the respected dispute.

Enforcement of Fundamental Rights 

Article 32 of the Indian Constitution states that if any fundamental right is infringed, then the person can approach the Supreme Court.

This Article provides for the issue of writs which include Habeas corpus, mandamus, Certiorari, Quo warranto, Prohibition.

After issuing these writs one can directly approach the Supreme Court for the enforcement of the Fundamental Rights.

(3) Appellate Jurisdiction–Article 132 

Article 132 provides that the appeals for the High Court of any state can be brought up in the Supreme Court for civil as well as criminal matters.

It is provided that the case should involve some substantial question of law under Article 134A.

When all of the parameters are met then the certificate is granted under which any person can approach the SC on the basis that his or her case has been wrongly decided.

An appeal in Civil matters

Article 133 talks about the appeal in the case of constitutional matters.

Let’s have a look at it-

• It says that the appeal shall lie to the Supreme court only if the High Court certifies that it fulfils the condition given in the Article 134A which says that the matter should contain a substantial question of law and in the opinion of the High Court the matter should be passed on to the Supreme Court.
• This Article again emphasizes in its clause (2) that a question of law should be wrongly decided by the High court.
• In its clause (3), it states that notwithstanding anything stated in this Article, any appeal will not lie before the Supreme Court until the Parliament specifies.

An appeal in Criminal Cases-Article 134 

Article 134 says about the appeal to the Supreme Court when the matter is of criminal nature. Let’s have a quick look at it-

The appeal would lie before the Supreme Court when the High Court-

• On appeal, has reversed the acquittal of the person and he has been sentenced to death; or
• Withdraws any case from a subordinate court and has announced the conviction of the person or death sentence; or
• Has considered the case to be fit to be presented before the Supreme Court on the basis of Article 134A.

 Certificate for appeal to the Supreme Court

As mentioned earlier in this article, Article 134A provides for a checklist to certify that the case is fit to be presented before the Court. This article basically provides the certificate for the appeal to the Supreme Court.

These checkpoints are as follows-

• If the High Court deems it fit to do so in the motion of its own.
• If the aggrieved party just after the judgment is passed makes an oral application.
• The decisions are to be made with respect to Articles 132(1), Article 133(1) and Article 134(1)

Power of the Supreme Court to withdraw and transfer cases Article 139-A 

Article 139A gives power to the Supreme Court to withdraw the cases from the High Court if they are pending and it is believed by the Supreme Court that it involves important question on law.

Another instance in which the Supreme Court can do so is when the Attorney General of India or the aggrieved party writes to the SC mentioning that the case carries a question of law of general importance.

Federal Court’s jurisdiction to be exercised by the Supreme Court- Article 135 

The federal courts were established before the commencement of the constitution wherein some laws were passed. Now if the provisions which are given under Article 133 and Article 134 do not apply to those laws, then the Supreme Court will have the jurisdiction over it under Article 135.

Appeal by Special Leave- Article 136

Article 136 enables the Supreme Court to grant special leave of appeal for any order, judgment or sentence which is passed by any court or tribunal in the country.

It is regardless of anything contained in the chapter concerning the Union Judiciary and do not apply to any matter concerning Armed forces.

The Court not competent to judge economic policy of the Government 

The economic policies laid down by the government are subject to legal restraint that it cannot be reviewed by the judiciary.

The rationale behind it is that the judiciary is an expert in the field of law whereas interpreting economics policies would require an expert who has the knowledge of economics.

The work of the judiciary is to decide the matter between the two parties whereas the policy adjudication will have many views.

In TN Govarnam Thirumulkpad v. Union of India, the judiciary took the matter related to the Forest Conservation Act,1980. This case required technical as well as expertise on some matter but the Supreme Court arranged by appointing the experts related to the matter. So here the Supreme Court was able to fill up the need required to take up policy matters.

But after all, the resources like appointing technical experts were to be arranged which are already present in the legislature and the executive per se. But the judiciary can pick up the policy matters which it considers carries injustice.

Power to grant special leave to appeal to be exercised in exceptional cases

We will discuss some cases relating to it.

Pritam Singh v. the State

In this case, it was ruled out that the special leave to appeal will only be granted under special circumstances where grave injustice is done and the court checks it and bestows justice.

The court emphasized on setting up of a standard for granting special leave of appeal.

N Suriyakala V. A Mohan Doss

In this case, the court ruled out that the granting of Special Leave of Appeal is not a usual action taken by the Supreme Court but only when the SC has to interfere in the case under its own discretion.

Concurrent findings of the Trial Court and the High Court

Let’s consider a case regarding it,

M.Vadivel vs Arulmughu Iravatheeswarar Koil

It was contended in this case that the Supreme Court under Article 133 can undertake any matter as it has been not stated anywhere in the chapter of Union Judiciary that the concurrent findings of the Trial Court and the High Court can not be reviewed. 

It was held that the concurrent findings of the trial court and the High Court have been brought up by deep knowledge of the court by considering matters of both of the parties. Hence the Supreme Court interferes only in exceptional cases when there is a grave injustice.

New Plea on Facts

The Supreme Court does not allow the facts to be raised in the court when they were not raised in the first place during the proceedings of the subordinate court. Therefore new facts are inadmissible.

Let’s look at a case.

Jagannath Behera V. Raja Harirar Singh

In this case, the new fact was whether any special laws or traditions prevailed in a merged territory. This fact was not presented before in any court and for the first time in the Supreme Court, therefore it was inadmissible.

Gopinath Ghosh V. State of West Bengal

In this case, it was brought for the first time to the knowledge of the Supreme court that the accused was below 18 years of age when the crime took place. Hence, it too was inadmissible.

Plea of Law

In cases where a question of law was not presented before in any court, the Supreme Court will allow it to be raised for the first time.

Badari Prasad V. Nagarmal

In this case, a question was raised stating that section 4(2) of the Rewa State Act as unconstitutional. This question was raised for the first time in the Supreme Court and it was allowed by the court.

Masalti V. State of UP

In this case, it was ruled out that any question of law that is material to the facts will be admissible even if it is presented for the first time in the Supreme Court.

A private party can file an appeal under Art.136 challenging acquittal 

Supreme court under Article 136 considers special leave to appeal. But the question of whether the private party has a locus standi to file the appeal has to be understood.

Let’s have a look at the cases to know the answer.

A petition was filed by Prisoners Right Forum which was related to a death sentence of the prisoner which was dismissed by N. Anand Venkatesh, who stated that any third person can not file an appeal regarding it.

And if it is allowed, any bystander will be able to file an appeal revoking the judgment of the subordinate court.

When no challenge to the main judgment 

No appeal can be filed against the judgment of the Court which is passed with the consent of the parties. An appeal can only be placed regarding a question of law.

False and misleading statements – Justification to revoke the appeal

When any party presents before the court during the hearing of an appeal, any false statements or the facts which are misleading, then the Supreme court can revoke the appeal.

In SN Aggarwal V. Union of India, false facts were presented which affected the decision and discretion of the court. In this case, it was ruled out that the Supreme court has the power to set aside the appeal and it will be justified.

Tribunals

As the tribunals were set up to reduce the workload on the Courts, any appeal from the tribunals can be presented before the Supreme court until there is no provision of Appellate tribunals. If there is then Appellate tribunals will hear the appeals for the Tribunals.

Power to review its judgments Art 137 

Under Article 137, the Supreme Court has the power to review its judgment.

It is subjected to the provisions of law and provisions under Article 147.

It is basically a mechanism provided to the Supreme Court to amend its mistakes.

Curative Petition 

The remedy of the curative petition was introduced by the Supreme Court in the case of Rupa Asok Hurra V. Asok Hurra.

A curative petition is the last remedy provided for any grievances. Its counterpart is the mercy petition which is filed before the President.

It was also filed in the famous  Delhi rape case.

Ancillary Powers of Supreme Court.

Article 140 enables the president to make law regarding any supplementary right which can be given to the Supreme Court. This right should not be against the provisions of the law.

It will enable the Supreme court to work more effectively towards the goal of bringing justice to the people.   

Advisory jurisdiction-Article 143 

If at any point the President feels like a matter carries substantial question related to law and is of public utility then he can approach the Supreme Court for Advisory jurisdiction.

Supreme Court after hearing it may give his opinion to the President.

This is the procedure of Advisory jurisdiction which is present in Article 143 of the Constitution. 

Law declared by the Supreme Court to be binding on all Courts- Article 141

Supreme Court is the highest organ of law and the decision it takes is of utmost importance. The rule to follow its decision will lay down a structure of procedures which will act as a guideline for the lower courts to follow in cases where similar facts are contained.

Article 141 states that the judgment of the Supreme Court is binding on all the lower or subordinate courts.

Supreme Court not bound by its own decisions 

Article 141 obligates other subordinate courts to follow the judgments of the Supreme Court and stand by its decision which is the principle of Stare Decisis. But the Supreme Court is not bound by its own judgment. 

It believes to follow its earlier judgments until there is a case of diminishing circumstances. 

Ratio-decidendi 

The part of the judgment that lays down the rationale of the decision is called ratio- decidendi. It is important to consider the ratio decidendi of the judgment as it lays down the rule of law.

Prospective overruling

The motive of following a judicial precedent is to maintain the old laws and follow them and not to invent new laws every day. The overruling of a precedent is done when it is followed by injustice to people at times, so in order to prevent it, the Doctrine of Prospective overruling is followed.

The Doctrine of Prospective overruling lays down the mechanism according to which, the law which has arisen out of the case which has overruled a previous judgment, will be followed.

This Doctrine was first reinforced in the case of I.C. Golakhnath V. State of Punjab, where Justice Subba Rao invoked it. He had taken it from the American law where various eminent jurists spoke about it.

Obiter dicta  

As in this article, we have already discussed the Ratio Decidendi which was an important part of the judgment. Well, here Obiter Dicta is the other half of the judgment which is not the important part and can be ignored while considering the facts of the judgment. In case one has to go through the thought process and the opinions of the judge who wrote that judgment, he or she may give it a read.

Overruling not by co-equal Bench 

In Siddharam Satlingappa Mhetre v. the State of Maharashtra, the court ruled out that a judgment by a larger bench will be binding on the smaller bench and co- bench.

But what happens if there is a conflict between two co-bench regarding the judgment?

This is answered by the case of the State of MP v. Mala Banerjee, which stated that in cases of such conflicts, the matter should be presented before a larger bench.

Enforcement of Decree and Orders of Supreme Court: Article 142

Article 142 says-

• The Supreme Court in order to make sure that justice is done can pass any order or decree.
• It was further stated in clause (1), that when such order or decree is passed then it will be enforceable in the entire country under the provision made by the law of the Parliament and if there is no provision regarding it then the provision made by the President will be considered.
• The Supreme Court has the power to issue an order or decree in order to secure the attendance of the concerned person, the discovery or production of any of the related documents, or the investigation or punishment of any contempt of itself which will be subjected to the provision laid down by the Parliament.

Ex-gratia grant

[Santosh Devi v. Union of India, 2016]

Looking at the case of Santosh Devi v. Union of India, we will understand the concept of the ex-gratia grant. 

In this case, it was ruled out that the procedure for the compassionate appointment of a member of a family in place of a deceased member of the same family should only be done after taking into consideration that the sudden demise of the member affects the conditions of the family economically or the member was the only earning member of the family and after his demise, someone needs to take his place.

Dissolution of marriage by mutual consent waiving the statutory period of waiting 

To illustrate and understand the topic,

In July, a couple got married after which due to instances of domestic violence both of them started living separately. After which they approached the family court for this matter and applied for a divorce by mutual consent.

The family court in that matter ordered them to live separately for a period of 6 months. Later on, the woman wanted to marry a man who was a non-resident of Australia.

The High Court set aside the 18 month separation period after the women filed a petition for it.

The Supreme Court in this matter ruled out that in the case when the divorce has taken place with the mutual consent of both parties to the marriage, the rule of six month period of separation can be skipped. 

Dissolution of marriage if it is totally unworkable 

Since a broken marriage can not be reversed so the Hindu Marriage Act and the Special Marriage Act take care that the marriage which still has some hopes should not be broken.

Supreme Court ruled out that only the marriage which has become dead in emotional terms and is totally unworkable should be dissolved through the process of divorce.

The couple who is living separately for years is not getting divorced due to the long mechanism involved in it. It makes it impossible for them to explore their lives while still stuck in the past marriage which is dead to them already. 

Many have recommended to invoke Article 142 and introduce irretrievable breakdown as a cause for the dissolution of marriage.

Enforcement of guidelines and directions to provide immediate help to the victims of accidents and to protect good Samaritans 

A good Samaritan is a person who, with bonafide intention and without wanting anything in return for the act he will do, steps forward to help or provide assistance to a person who has got injured in an accident or a crash and is in an emergency and needs medical help immediately.

Well for his amazing acts, the good samaritan is provided safety under many guidelines which are as follows-

• No investigation on criminal and civil matter will be initiated against the good Samaritans if any injury or death of the injured takes place
• The good samaritan will not be forced to reveal his personal details if he informs about such an accident or the injured person involved.
• Any person who forces him in revealing his personal information will be punished.
• The good samaritan will not be liable to bear any initial cost of the treatment of the injured person.

[Savelife Foundation v. Union of India, 2016]

Savelife Foundation v. Union of India mainly was concerned with the provisions related to the ambulance codes, emergency procedures, the process to be followed by the hospitals that are situated in the highways and the procedures related to the management of the trauma struck,  injured person during the accident.

Power of the Supreme Court to make rules 

The Supreme Court is the highest judicial functionary of the Constitution.

The Constitution of India under Article 145 gives the Supreme Court of India, the power to make its own rules. It should be consistent with the law of the parliament and should be made with the permission of the President. These rules are generally made for the procedure of the Court.

These rules may include-

• Rules regarding the person who is practising before the court
• Rules related to the hearing of appeals by the Supreme Court and all the matter regarding it.
• Rules regarding the proceedings of the court.
• Rules for the enforcement of fundamental rights.
• Rules in relation to the granting of bail
• Rules related to the stay on the procedures
• Rules considering the procedure of inquiries

This Article further provides that in regards to it, the Supreme Court will also provide for the number of judges who will sit to decide in this matter. It also provides for the powers to be conferred with division Courts and single judges.

It confers power on the Supreme Court to decide the number of judges to decide the matters that involve a substantial question of law.

Conclusion 

[How is the independence of Judiciary maintained under the Constitution]

 “We should interpret the constitution as it is and not according to what we think it should be. We will always come across some ways by which the spirit of the Constitution of India can be amended but then we will be rewriting the Constitution in the guise of interpreting it”. This was said during the judgment of a case, by the eminent jurist, PN Bhagwati.

The Constitution of India provided for the concept of separation of powers and the basic feature of the Constitution was the independence of the judiciary.

While India witnessed cases like the First Judges Case, Second Judges Case and the Third Judges Case, where it saw the revocation of separation of powers and the independence of the judiciary. But after every instance, the Judiciary still stood independent

As the National Judicial Appointment Commission(NJAC) and the ninety-ninth Amendment saw their demise, the basic feature of the constitution was restored back.

It should not be forgotten that the basic structure is the essence of the Constitution and under no circumstances, it should be altered or eliminated as it is essential for the fair mechanism for the administration of justice. Our Judiciary should stand independent as the framers of our constitution intended and we should respect and ensure that.

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 Articles 124-147: Analysis of Constitutional Provisions pertaining to Union Judiciary appeared first on iPleaders.

This article has been written by Avinash Kumar, a 3rd-year law student pursuing B.com LLB from School of law, UPES Dehradun. This article discusses the concept of taxation on income from royalty. In this article, I have described the meaning of royalty, deduction in respect of royalty income of author, deduction in respect of royalty on patents.

Introduction

Income Tax Act itself provides many ways to save the tax. Just you need to apply tax planning to save the tax. Income from royalty is one of the ways to save the tax. In India tax planning is legal. The income from royalty can be claimed as a deduction under the Income Tax Act, 1961. If an individual earns income by royalties then they can take advantage of tax deduction. If you have created music, invented new medicines, written a book then in those situations you can take the benefit of tax deduction under the Income Tax Act 1961. It doesn’t matter that from where are you getting the royalty, the government will treat those royalty as an income and expect you to report that income on your taxes. 

Meaning Of Royalty

Section 9 of the Income Tax Act 1961 talks about income deemed to accrue or arise in India. When we use the originally created asset of an individual or proprietor then the amount paid to them for using their asset is termed as the royalty. It is a legally binding payment to an individual till the date the benefit of their assets is availed.

If anyone uses the copyright, trademark, patent, procedural knowledge of an individual then he is legally bound to pay the royalty. Basically, it is a contract between the proprietor and the individual who is doing the contract for the use of their intellectual property rights.

For example: when you use the patent of an individual then the amount you paid to the patentee for using their patent is considered as royalty. In the same way, if an author writes a book and gives its copyright to the publisher then the publisher is legally bound to pay the royalty according to the number of books sold. Sometimes, when the owner sells the product he is entitled to a one-time payment and not the royalty, in a consequence of which he loses the ownership over it. For example, A discovered new software and after that A sold his software to B. Then in this situation he will not get any royalty for his software. When he sells his software he gets a one-time payment instead of royalty after that, he will not have any right over the software.   

Payment of any Information Constitute a Royalty Payment or Not?

To determine the exact nature of the payment made, the type of information passed on needs to be verified. If someone gives the payment for passing the information then, in that case, these payments will not come under the category of royalty income. In the case of CIT vs Heg India 130 Taxman 72, an Indian company wants to take some technical information from the US Company. In this regard, an Indian Company paid some amount of money to the US Company. In this case, the Madras High Court held that if anyone is paying the money for obtaining the information, data or a calculation sheet, such money will not be treated like royalty payment.    

Deduction In Respect of Royalty Income of Author Other Than The Textbook (Section 80qqb)

Royalty Income Of Author

An author earns income by publishing their book. The publisher publishes the author’s book and the author gets the profit against the total number of books sold. The profit earned by the author will be a royalty income for the author. An author is someone who uses his skill, knowledge to write something. Nowadays the writer writes books, articles and publishes their write up on many platforms. An author creates a contract with the publisher for selling his books, whereas the writer creates a contract with the director for casting his story in the film. After that writer gets the money from the publisher will be royalty income for the author. Against such type of royalty income, the author can claim the deductions under Section 80QQB of Income Tax Act 1961.  

Gross Total Income For The Author

For availing the benefit of tax deduction under Section 80QQB of Income Tax Act, Gross total income of an individual includes:

1. If an author derived his income from his profession;
2. If an author obtained an income from writing a book of his interest in respect of the copyright of his books being a work of literary, scientific or artistic;
3. If an author receives an advance payment of royalty but royalty shouldn’t be non- refundable. 

Royalty Deduction allowed Under Section 80QQB

1. If an assessee wants to claim deductions under section 80QQB then he can get a deduction of up to 3,00,000.
2. Or Gross total income earned by him. 
3. Or whichever is less.   

Condition For Claiming Deduction Under Section 80QQB

Following conditions which are mentioned under the Income Tax Act, 1961 says that if an assessee wants to claim deductions under Section 80QQB  they have to fulfill the following conditions:

1. For claiming the tax benefit an assessee should be resident of India. Deduction under Section 80QQB is not available to the non-resident. 
2. For claiming the tax benefit under Section 80QQB of Income Tax Act 1961, an assessee should be an author. Here the author also includes the joint author which means that a joint author can also take a tax deduction under Section 80QQB.
3. The content of the author’s book should be artistic, literary or scientific in nature.
4. The topic of the author’s books shouldn’t include brochures, commentaries, diaries, journals, magazines, textbooks, pamphlets, or other publications of similar nature. 
5. An assessee can claim the tax deductions only at the time of filing income tax returns.  
6. The amount should be received in lump sum consideration. If the amount is not received in lump sum consideration, income as in excess of 15% of the value of books sold during the year should be ignored.

How to get Deduction under Section 80QQB?

• If an individual is a resident of India and wants to take the deduction under Section 80QQB then he has to fill the certificate Form 10CCD
• If an individual has earned the income from foreign, in that case, he can claim the tax deduction, if the amount brought to in India within the period of six months from the end of the previous year or the time period allotted by the competent authority. So in order to get the deduction a person has to fill out Form 10H. 

Example Of Deduction Under Section 80QQB

Let’s understand deduction through an example of deduction under Section 80QQB. Suppose Ajit Bharti has written a book named “Gharwapsi”. He is a resident of India. In a financial year, he earns Rs. 2,00,000 as a royalty income from publishers. He also has a business from which he earns Rs. 4,00,000. Now if he wants to take the tax benefit under section 80QQB then he has to deduct the income of royalty from the gross total income. So Ajit Bharti will have to pay the tax on Rs. 4,00,000 because he can take the tax deduction on Rs. 2,00,000 under 80QQB of Income Tax Act, 1961.     

Deduction In Respect of Royalties on Patents (Section 80rrb)

Patent

The patent is a right granted to an inventor by the government that permits the inventor to exclude others from making, selling or using the invention for a period of time. A Patent is also termed as the intellectual property right that ensures the innovator that innovator invention is secured. If an individual gets the patent then it excludes others from making, selling, or using the invention for a particular period of time. By inventing something unique an innovator can earn a regular income. The payment which the innovator gets from inventing something will be termed as royalty income for the innovator. The examples of patentable items are like chemical formulas, computer software, and hardware, drugs, medical equipment, musical instruments, etc.

For example, let’s take an example, Rohan invented a medicine which cures the diseases of cancer and he applies for the patent and he gets the patent then he has a right over these medicines.      

Section 80 RRB of Income Tax Act, 1961

An individual whose source of income is in the form of royalty paid on the work which pertains to art, patents, inventions can claim the deductions under Section 80RRB of the Income Tax Act, 1961.

Eligibility For Claiming deductions in respect of income from Patent

If an individual wants to claim a deduction under Section 80RRB of Income Tax Act 1961 then he will have to satisfy the following criteria:

1. He must be a resident of India;
2. An individual must be an owner of the patent for claiming the deduction under Section 80RRB of Income Tax Act 1961. If an individual doesn’t have an original patent he can’t claim tax benefit; 
3. An income earned by the royalties in respect of patents must be registered under the patent Act, 1970 on or after the 1st April 2003.    

Up to what Extent Deduction on Patents can be claimed?

Income earned from Royalty is eligible for deduction under the Income Tax Act 1961. These are the following points that an individual has to keep in mind while claiming the deductions under Section 80RRB.

1. An individual can claim a deduction of up to Rs 3 lakh. If their income is more than Rs. 3 lakh then the deduction under royalty can’t go beyond that. If his royalty income is less than 3 lakh then he will get a deduction on that income under Section 80RRB. 
2. An individual can’t club the income of other sources with royalty income. It means that they can claim a deduction only for the amount he is receiving from royalty.
3. Individuals who do not hold the original patent are not eligible for tax benefit under section 80RRB of Income Tax Act 1961.  
4. If an individual earns royalty income from outside India then the deduction under section 80RRB can only be claimed within six months from the end of last year. It is compulsory to produce documentary evidence to the Income-tax department to avail the benefit of deduction under section 80RRB. If you don’t produce the document then you are not eligible to get the deduction. 
5. Only those assessee can claim the benefit of tax deduction who fulfill the criteria of the resident. A non-resident individual can’t claim the deduction under Section 80RRB of Income Tax Act 1961.    
6. In respect of granting the patent, it is an agreement between the two parties but in some circumstances, the government grants the license to use patent for the public at large. In such a situation, the government will settle the amount of royalty with the controller who grants the patent right.   

Computing Income By Way Of Royalties In Case Of Non-Residents (Section 44DA)

Section 44DA of Income Tax Act, 1961 deals with the Special provision of Income by way of royalties in the case of a non-resident.

Who Is a Non-Resident?

According to Section 6 of the Income Tax Act 1961, an assessee will be qualified as a non-resident if they satisfy any one of the following conditions:

1. In a financial year, individual stay in India for less than 181 days; and
2. In a financial year, individuals stay in India for not more than 60 days;
3. If an individual stays in India which exceeds 60 days in a financial year but does not exceed 365 days or more during the 4 previous financial years.   

Provision for computing income by way of royalty in case of non-resident Section 44DA

Section 44DA of Income Tax Act, 1961 talks about the provision for computing income by way of royalties in the case of the non-resident. If a non-resident receives an amount in pursuance of an agreement made before the 1st April 2003 it will be governed by Section 44DA of the Income Tax Act 1961. If a foreign company or a non-resident is earning the fee for technical service or royalty income from India through a permanent establishment in India then such fee for technical service or royalty shall be computed under the head “profits and gains of business or profession”.

Conclusion

The Income Tax charges tax on all the five heads and it also provides a deduction on the same that can be claimed by the assessee to save the tax. There are many provisions under the Income Tax Act which talks about the deduction of tax when an individual is earning the income from royalty. An author has a right to claim a tax deduction under section 80QQB of Income Tax Act. The patentee can take the benefit of tax deduction under section 80RRB of Income Tax Act, 1961.  However, If an individual is sharing the information and taking the royalty then that will not come under the royalty income. 

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 Taxation On Income From Royalty Under Income Tax Act, 1961 appeared first on iPleaders.

This article is written by Nishtha Pandey (batch 2023), student of Dr Ram Manohar Lohiya National Law University, Lucknow. This article seeks to present a holistic viewpoint on the actual Nature of the Constitution of India. The opinions of prominent jurists and case laws are included to present a broad picture.

“It doesn’t really matter whether the Constitution is in consonance with the textbook rules of federalism as long as it serves the purpose” –Kuldip Nair v Union of India

Introduction

There is a huge difference of opinion when it comes to the nature of the Indian Constitution. Some jurist like Kenneth C Wheare, said that India is quasi-federal i.e. “similar to a federal system” because it has some features of federal and some of the unitary Constitution. However, according to the makers of the Constitution, it is federal in nature. Even Dr. B. R. Ambedkar defined it as a federal Constitution, although the centre has certain powers to override the provinces.

The question of whether the Indian Constitution could be actually called a federal Constitution could not be answered without looking into the meaning of federalism and the essential features that are evident in a federal state.

Is the Constitution of India Federal?

There are certain features which are essential to be present in the federal Constitution. Some of them are discussed below:

Federal Principle

The basic principle of federalism is the “division of power”. The centre and the state are not subordinate but coordinate with each other. They work independently in their own sphere. In other words, it seeks to bring unity in diversity and the achievement of common national goals. Prevention, as well as the settlement of conflict of the interests of the Centre and the States, is an important part of federalism. This is the reason why the Indian federalism was devised with a strong Centre. The Indian Constitution has adopted federal features, though it is not a complete federal nation.

Essential characteristics of a federal Constitution

There are various characteristics which are quintessential for a Constitution to be termed as a federal Constitution.

Supremacy of law

The Constitution is the supreme law. The term “law” involves rules, regulations, bylaws, notifications, orders, ordinances and even the customs having a force of law. A federal-state derives its existence from the Constitution. Every type of power; be it legislative, administrative or judicial, irrespective of it being at the centre or the state level, is controlled by or is subordinated to the Constitution. Article 13(2) provided that the State shall not make any law which takes away any of the rights guaranteed under Part III of the Indian Constitution and to the extent of such contravention, the law is considered void. 

Distribution of Power

In federalism, distribution of power forms an important and integral part. Distribution of power between the centre and the state and other coordinate bodies present in the Constitution.

This division of governmental powers into national and regional governments is done by way of 3 lists which are the Union, State and the Concurrent lists. These lists provided in the 7th Schedule to the Constitution. Only the Central government deals with the issues mentioned in the Union List. State government legislates on the areas mentioned in the State List while the Concurrent List contains subjects where both the Center and the State can function. This concept is borrowed from the Canadian Constitution. However, there are certain items which do not present in any of these three lists. These are called residuary powers and lie primarily with the Centre as per the Entry 97 of Article 248. The reason behind this is to make the Parliament competent enough to legislate on any subject which is not identifiable at present. Thus, the principle of division of powers, which the concept under context, promotes, highlights the federal structure of the Indian Constitution.

Written Constitution

A federal Constitution must be written. Since the federal nature of the Constitution involves a lot of contracts hence it would be impractical not to have these written. Moreover to maintain the supremacy of the Constitution it is imperative to have a written Constitution.

The United Kingdom does not have a written Constitution and therefore it is not regarded as a federal country. The States in a federal system, come together and enter into a treaty and the terms of the treaty are required to be in writing in the form of a written Constitution. There is no denial of the fact that a written Constitution brings stability in the overall governance of the country. If there were no written Constitution defining the scope of the powers of Centre and the States, there will be chaos and confusion. Moreover, misunderstandings and conflicts will arise between the Centre and the States who would seek to cross over each other’s authority.

Rigidity 

The Constitution should be rigid and permanent. A lousy set of the document cannot be said to a federal Constitution. The method of the amendment should be rigid, otherwise, the basic principles of the Constitution would be under threat. However, the rigidness of the Constitution should not be confused with inflexibility. The Constitution is an organic document and should be flexible enough to accommodate according to the changing times.

Rigidity in a Constitution also means that it cannot be amended unilaterally without the participation of the states. In the United States, that is an example of classical federalism, it is an established rule that no part of the Constitution can be amended without the ratification of at least 3/4th of the individual States. Another example is Switzerland, where no amendment can be brought into force unless it is ratified by a majority of votes i.e. referendum. Same is the case with Germany, where the states do have a major role to play in the amendment of the Constitution but even the German parliament cannot amend as far as the federal features are concerned like division of the federation into States or the participation of the States in making amendments in the legislature, these features are exclusively made non-amendable because Germany is also a federal country. 

These examples justify that the rigidity of the Constitution is a primary feature of any federal form of government and the same has been imbibed in India too. In India, any provisions which deal with the centre and state relations could be amended only after all the states have ratified the amendment which is proposed. It is also important to note that the ratification must come from at least 50% of the states. For example, in the case of Kihoto Hollohan vs Zachilhu & Ors where the court rejected the addition of Para 7, which affected the jurisdiction of the high courts present in the State, in the 10th Schedule by way of 52nd Constitutional Amendment. This amendment was passed by both the houses of parliament and was not sent for the ratification of the states, so it was ultra vires and the Supreme Court declared the 52nd Amendment and the 10th Schedule to be unconstitutional and void. The doctrine of Severability was applied and only Para 7 was removed and the remaining part of it was held to be valid.

Authority of Courts

The judiciary has the final authority to interpret the Constitution. The rationale for this provision is that only an independent tribunal which is authorized to resolve disputes between the Centre and the States could impartially resolve all the disputes between the Centre and the State government. As regards to India, the Supreme Court is that federal tribunal which has such powers and competency. The Supreme Court is authorised, to exercise such power, by way of the Article 131 of the Indian Constitution. However, for solving the Inter-State Water Disputes the parliament has to create an ad-hoc tribunal to resolve a specific water dispute between two states, for instance, the Cauvery Water Disputes Tribunal which is dealing with the water dispute between Kerala, Karnataka and Tamil Nadu. This power given to the Central Government to create a separate tribunal is although small but significant unitary feature, the Bedgaon Border dispute case pending in Supreme Court. It is between Maharashtra and Karnataka in which Maharashtra claims that the majority of the people in that region are Marathi speaking so the region should belong to them while the Karnataka demands just the opposite. Thus, an independent judicial court is a very necessary federal feature of the Constitution.

Provisions of the Constitution not supporting the federal principle

Indian Constitution lays down a double polity system, where the Central Government is neither merely the league of States nor the States that are the administrative units or agencies of the Central Government because they have their own Constitutional identity. However, there are some strong centralizing tendencies present in the Indian Constitution which confer maximum power on the Central Government. The reason for this centralisation dates back in history at the time when the Constitution was made. At the time of the partition of the country, the framers thought that if the Central government is not strong, then the country would get fragmented. The Philadelphia Convention which resulted in the formation of the US Constitution also mentioned the term “union”. This term was mentioned there in order to make it a more perfect Union and in the express terms. It is highly probable that the intention of the Constituent Assembly behind adding the expression Union was that they wanted to give an impression that it was an indestructible Union. They must have been feared about the potential Balkanization of the Indian Union. The policy so adopted by the Constituent Assembly was to have an intrinsic partiality in the favour of Centralization i.e. a unitary in spirit.

Union of States

Article 1 of the Indian Constitution states that India i.e. Bharat shall be a Union of States. It is to be examined here whether the use of the word ‘Union’ was intentional or not. Because the word ‘Federation’ has nowhere been mentioned in the Indian Constitution. It was there in the draft Constitution but was later removed. It was, however, a purposeful omission on the part of the drafting committee, its Chairman Dr. Ambedkar, justified this removal by mentioning that the addition of the word “Federation” was added after the ratification of the States.

Appointment of Governors

Appointment of the Governors of various States is done by the Central government. Governor is the Constitutional Head of the State simultaneously he is also the representative of the Centre. The Central government, under Article 355 has to ensure that there is no failure of Constitutional machinery in the State and the states are protected from internal and external disturbance. So, to carry out that mandate, the Central government has the authority under Article 356 of the Indian Constitution, to impose President’s rule in the state, and it is the duty of the governor who has to inform the Centre about the failure of the Constitutional machinery of the State. Governor, unlike President, enjoys some discretionary powers i.e. he can keep a bill for the consideration of the President. The Sarkaria Commission which studied the Centre-State Relations made certain suggestions regarding the appointment of the governor in the state because there was no effective consultation by the central government to the Chief Ministers of the States during such appointments. It was thus recommended that the Governors should be some eminent person from any sphere of life.

In the case of Rameshwar Prasad v Union of India, popularly known as Bihar Assembly Dissolution Case. the Supreme Court put up questions as to the unbiasedness of the Governor as there was a President’s Rule imposed in Bihar after the elections. The reason for this imposition was that no political party was in the position to form the government but when there was a possibility of formation of a government by a political party, the Governor sent a report to the Centre that the Assembly should be dissolved due to the inability of the party to prove its majority. The Centre did not further investigate the report sent by the governor, and on that recommendation, the Assembly was dissolved. the very next day, the Supreme Court said that the Governor did not act according to his duties. Moreover, the Governor is not supposed to be an agent of the ruling party at the Centre. Supreme Court pronounced the judgement in which it was held that the dissolution of the Bihar Legislative Assembly as unconstitutional.

In the case of B.P. Singhal v Union of India, Supreme Court held that a Governor cannot be removed by the Central government on the grounds that he is not in accordance with the policies of the Central government. This cannot be the reason behind the Central government to remove the Governor from his office. If they did, it would be considered as arbitrary.

Thus, this power to appoint Governors that would be the head of the respective States is an essential unitary feature of the Indian Constitution.

Single Citizenship

The Constitution of India has proposed a Single Citizenship for the whole country. In a federal country like the United States of America, there is dual citizenship where a citizen firstly owes loyalty to the respective States and then to the Centre. But in case of India although it is a Federal-State there is still a provision of single citizenship. It implies that all Indian citizens to have allegiance to the Indian Union. Every citizen, irrespective of his birth or residence, is entitled to enjoy civil and political rights throughout India. The Indian Constitution does not recognize State citizenship. In fact, after the abolition of Article 35A and Article 370 of the Indian Constitution, the State of Jammu and Kashmir are also integrated as a part of the Indian Union. Moreover, the claim of Fundamental Rights is common to all citizens.

Parliament’s power to legislate in the national interest 

Under Article 249, Parliament is empowered to make laws with respect to every matter enumerated in the state list only if the Rajya Sabha passes the resolution by a two-thirds majority that it is necessary for the national interest.

The Parliament makes law and it remains in force for 1 and 1/2 years i.e. the law will cease to have any effect, 6 months after the resolution comes to an end because the resolution remains in force for 1 year. The Centre can also make law if there is a request or consent by 2 or 3 States and such law could be adopted by other States. When the national emergency is declared, the Central government gets concurrent legislative power to make certain laws under the state list and if there is a conflict between the two, the central law would preceed.

Parliament’s power to form new States and alter the boundaries of existing States

Article 2 and Article 3 of the Indian Constitution, give the power to the Parliament to redraw the political map of India; to create and abolish the name of the states, alteration of the boundaries of the States or even change their names all this can be achieved by way of a simple majority in the Parliament. Moreover, the Constitution only provides for consultation by the Centre of the concerned State. For example–when Andhra Pradesh was divided into Telangana, then Andhra Pradesh Assembly had passed a resolution opposing the step, irrespective of the opposition the Central Government continued with the separation. The provision, therefore, provides the consultation with the State Assemblies. The President can only prescribe a time frame within which the State Assembly has to take a decision on the proposal of separation of the State or to a merger of States. Examples such as Uttarakhand, Jharkhand and Chattisgarh are also present. In 2007 too, the name of Uttaranchal was changed to Uttarakhand, this too was done without amending the Constitution. Hence, the Central government has an upper hand as far as the creation or abolition of the States is concerned.

Appointment at key positions

Under the 7th schedule of the Constitution, there is a provision mentioned which makes it necessary for the centre to deploy the armed forces of the union to hold the civil powers of the state. Under the Armed Forces Special Powers Act (AFSPA) which is currently active in some of the regions. This Act is invoked when the Centre declares a specified area as a ‘disturbed area’, and then the martial law is declared in that region. The members of the armed forces of the Union are now deployed in that state without the consent of the State government. The act empowers the armed forces to open fire on the people or to exert force to the extent of causing death, in the case, there is a breach of any order. These actions of the armed forces are completely indemnified which means that no suit or criminal proceeding can be filed against them without the prior sanction of the Central Government. 

Moreover, a commission was set up by the Supreme Court to look after the misuse of the Armed Forces Special Powers Act in Manipur. This Commission was headed by former judge Santosh Hegde with former Chief Election Commission J.M. Lyngdoh and retired IPS officer A.K. Singh as its members. On many occasions, the Extrajudicial Execution Victim Families’ Association (EEVFAM) with the Human Rights Alert (HRA) submitted a list of cases of killings in Manipur since 1979 before the Supreme Court and demanded an investigation into these extrajudicial deaths.

Unified judiciary

In India, we have centralised Judiciary with the Supreme Court at the top position as opposed to the federal system having a dual system of courts. The Supreme Court holds the apex position in our unitary judicial system. An endeavour has been made, as far as possible, to ensure its independence and to achieve the goal of ensuring justice. By merit of its place at the apex of the judicial system, the Supreme Court acts as a great uniting force. We have seen that its decisions and verdicts are binding on every court in India. As a result, there is a great possibility of consistency in the whole judicial system present in the country.

Emergency provisions

When the proclamation of an emergency takes place, the division of power between the centre and the state takes a vital change. Under Article 356 of the Constitution of India, if the President deems right that the condition of governance of the state can’t take place according to the principles of the Constitution, then the President can dissolve the legislature and other state machinery and he can himself assume all the state’s functions.

When a proclamation made under Article 356 of the Indian Constitution, the State government can be either dismissed or the Assembly can be kept in suspended. moreover, during the making of the Constitution, the Chairman of the Drafting Committee, Dr. Ambedkar said that power vested under Article 356 has to be rarely invoked. However, this was not the case. Until the Supreme Court judgment of S.R. Bommai v Union of India, the power under Article 356 was already used 90 times. Supreme Court, in this case, restored the federalism by stating that if the decision is found to be passed with a bad intention, then the court can reinstate the government that is removed or if the Assembly is dissolved, the court can restore it. Now Supreme Court has stated that once the President rule is imposed, the Assembly should be immediately dissolved. It should be kept in suspended motion until the proclamation is approved by both the houses of the Parliament. Article 352 and 356 have been adopted from the Weimar Constitution of Germany.

Representation

Representation in the Legislature, which is similar in the case of an actual federation such as the United States of America, is not applicable in the case of India. States in India have differing representation in the Upper House of the Parliament. Representation of States in the Rajya Sabha are not equal. According to Schedule 4 of the Constitution, the representation of the States fluctuates heavily. The largest representation is that of Uttar Pradesh which is 31 whereas the many North-Eastern States have only 1 representation. The members of the Upper House are elected by the provincial legislatures. Even the value of the vote that is casted by the members in the Presidential Elections changes from State to State and is based on the population. The representation of the States in the Upper House is not equal and varies from State to State, which is regulated by the Centre, this is basically a unitary feature, which gives an upper hand to the Centre.

Residuary Powers

Residuary Power refers to the authority of the central government to legislate on the subjects which do not find any mention in the unitary, state or concurrent lists of the 7th Schedule. For example, the laws like Prevention Of Terrorism Act, 2002 and  Terrorism And Disruptive Activities 1987, which are now included in the Unlawful Activities (Prevention) Act, National Investigation Agency Act under which NIA was set up on the lines of FBI in the US, to investigate crimes like terrorism. So although public order is a state entry, terrorism is a problem which has an intensity beyond public order, it concerns more with the security of India. When the Lokpal Bill was passed by the Parliament, the States opposed, they said that in one legislation you cannot provide both Lokpal and Lokayukta therefore now the Lokayukta is removed and there is one provision which states that the States are supposed to make Lokayuktas within 2 years of passage of this Bill because Central Legislation creating Lokayuktas for the States has not been in consonance with the federal scheme of the country.

In the past, several states have demanded that the residuary powers, like those of taxation, should be vested in the States. In the contradiction of this demand, the Centre has time and again pointed to a strong centralised bias of the country’s federal structure. The Sarkaria Commission, which in its report also reasoned the transfer of the residuary powers to the Concurrent List because it felt that the exercise of such powers by the States would ultimately be subjected to the rules of the Union Supremacy which would be in synchronisation with the unitary spirit of the Indian Constitution, especially with Article 256 and Article 254 of the Indian Constitution.

Conclusion 

The Indian Constitution empowers the Centre to interfere in the State matter and thus places the State in a subordinate position which violates the federal principles, therefore Indian Constitution is neither purely federal nor purely unitary but it is a combination of both, It is quasi-federal Constitution i,e, “unitary with federal features” or “federal with unitary features”.

The most remarkable achievement of the Indian Constitution is to confer upon a federal system and to strengthen the unitary government. Though normally the system of government is federal, the Constitution enables the federation to transform itself into a unitary state in an emergency. So writers like K.C. Wheare called it “Quasi-Federal, Jennings called it as an “A Federation with a strong centralising tendency, McWhinney called it “Essentially unitary,” but on the other side writers, like, Sawer and Neumann called it  ‘a Federal Constitution’. D.D. Basu’s conclusion on this point is that “The Constitutional system of India is basically federal, but of course, with striking unitary features.”

The Supreme Court has time and again reiterated that the kind of federalism practised in the United States of America is not a part of the basic structure of the Indian Constitution. The federalism in India is unique and is made according to the need of the Indian milieu. 

Dr. B.R. Ambedkar had thus rightly said that the Indian Constitution would be both unitary as well as federal according to the requirements of the time. The Drafting Committee wanted to elucidate that though India was a federation, it was not as per any voluntary agreement between the States. The division of the country into states is only to facilitate the administration and does not affect the functioning as an integrated unit.

Moreover, on analysis, it was found that at the core of every federal principle, which is functional in our country, the ultimate force is unitary in nature. Therefore it would be appropriate to say that India has a federal structure but it is unitary in spirit.

References

• https://www.academia.edu/30341039/THE_NATURE_OF_THE_INDIAN_CONSTITUTION_SYNOPSIS
• http://www.legalservicesindia.com/article/2245/Quasi-Federal-Nature-of-Indian-Constitution.html

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 The Nature of the Indian Constitution appeared first on iPleaders.

This article is written by Jessica Kaur, a first-year student currently pursuing B.A. LL.B. (Hons.) at Rajiv Gandhi National University of Law, Punjab. Here, she discusses Xerox’s proposal to acquire HP and its pros and cons for the two companies.

Introduction

A story that has captured the attention of investors and businessmen since the last couple of months is the printer and photocopier company Xerox’s attempt to acquire HP, a company dealing in printers and personal computers. HP’s resistance to the proposal has made Xerox consider taking the path of a hostile takeover. If finalised, this deal would completely change the future course for the two companies and have far-reaching effects on the printer industry.

In this article, we shall first understand what an acquisition is and in what ways it can take place; then we’ll move on to the story till date of Xerox’s attempt to acquire HP and the consequences of this deal if it comes through.

What is an acquisition?

An acquisition, also called a takeover, refers to the process through which one company purchases a major stake in another company, thereby acquiring control over it. The company making the purchase is called the acquirer or the bidder, while the company being acquired is called the target.

A takeover, of course, involves payment of a specific amount of money by the acquirer in return for the target company. The acquirer can pay this money in the form of cash (raised through a loan or through issue of bonds) or in the form of giving shares of its own company.

An acquisition is different from merger (a term often heard alongside it) in terms of the relationship between the corporate entities. While merger involves an agreement between the two companies to come together and become a single legal entity, an acquisition involves the purchase of a smaller company by a larger company. It, therefore, is a combination of unequals.

Types of acquisitions

An acquisition or a takeover can be completed using different methods, depending on whether the management of the target company accepts the deal or not, what the status of the acquirer is after takeover, etc. Therefore, there exist different types of takeovers, which have been briefly described below:

1. Friendly takeover: A friendly takeover is one where the Board of Directors i.e. the management of the company agree with the terms of the deal. They suggest the shareholders to accept the offer, and therefore, the acquisition takes place smoothly.

Fun fact: the majority of takeovers of private companies are friendly. This is because, in such companies, the Board of Directors are also the shareholders or at least, have a close connection with them. Thus, the takeover only takes place when they approve of it.

2. Hostile takeover: In cases where the Board does not approve of the takeover, the bidder has another method to pursue the acquisition. This is when a hostile takeover comes into the picture.

A hostile takeover can play out in different ways- either the acquirer makes a public offer to shareholders of the target company at a premium over the current market price of the shares, or it persuades the shareholders to elect a new management who would approve the takeover, or it quietly purchases enough stock of the target company in the open market to bring a change in the management.

• Reverse takeover: A reverse takeover is when a private company acquires a public company. In this way, it is able to become public too, without having to undertake the expenditure and putting time into conducting an Initial Public Offer (introducing shares for sale to the public on a stock exchange).

• Backflip takeover: A backflip takeover refers to a situation where the acquiring company becomes a subsidiary of the acquired company after the takeover. This happens when the acquiring company is larger but not well-known, and it has acquired a popular company which had been going through financial instability.

Xerox and HP: Two aging legends

Both Xerox and HP have been big players in the printer industry for many decades. They have brought innovations that have revolutionised the market, and their prominence in the industry has made them household names over the years. 

However, slowly, the technological landscape in the industry has changed. Due to the emergence of strong competitors like Canon, Ricoh and others, and an overall decline in the demand for printers and photocopiers in the face of an increasingly digital world, the two companies have been experiencing shrinking business.

Before delving into the details of the proposed acquisition deal, let’s take a closer look at the historical and current position of these two companies in the printer industry.

Xerox Holdings Corp.

Xerox laid the foundation for the original graphical user interface, and held a stronghold on the printing business for many years. At one point, it was a monopoly in the industry. The Connecticut-based company is still known for its enterprise copiers and printers. 

However, for quite some time now, Xerox has been seeing lower market share and revenue due to the arrival and success of big rivals like Canon, and a change in the technological landscape of the printer industry. Xerox is best known for its corporate copying and printing business, but companies are less and less paper-bound, and more and more digital now.

The company has faced some changes in the last couple of years. Its half-decade long joint ventureship with Japanese company Fujifilms came to an end recently. A lawsuit was filed against it by Fujifilms to the tune of $1 billion due to a failed merger attempt. The lawsuit was dismissed while an agreement was made for the sale of Xerox’s 25% stake in Fuji Xerox. It also sold its 51% stake in Xerox International Partners.

HP Inc.

HP was founded in 1939 by two Stanford University graduates in Palo Alto, California. It has been a leader in home computers since it got into the business in the 1980s, and was a beneficiary of the 1990’s tech boom. The company’s inkjet printers are also a huge part of its business. HP Inc. is the result of a split in the company Hewlett Packard a few years ago, with the other half of the original company continuing with the business of servers and networking equipment.

Over the years, HP too has struggled to maintain high growth. It has been through some changes in the recent months, with CEO Don Weisler stepping down and being replaced by Enrique Lores. Shortly after, it announced a major restructuring programme involving the release of almost 16% of its workforce by the end of Fiscal Year 2022, with the aim to cut costs.

The relationship between Xerox and HP

Xerox and HP have been competitors in the printer business for a long time. As their roles in the industry have changed over the decades, it shouldn’t be a surprise that there have been discussions of business partnerships between them from time to time. In June 2019, HP announced a partnership with Xerox wherein Xerox would buy printers from HP.

For some time there had been news of a merger in the air, but when the news officially came, people were slightly taken aback that Xerox wanted to acquire HP rather than the other way round- mainly due to the relative size of the two companies.

The interesting thing to note here is that HP, the target company, is almost three times bigger than Xerox. HP values at more than $27 billion, while Xerox is worth around $8 billion.

You must be thinking, how then would the acquisition take place?

Well, for starters, Xerox’s recent deal with Fujifilms to sell its shares in Fuji Xerox to the Japanese company will make it richer by $2.3 billion. Apart from that, Xerox has announced that financing commitments from Citi, Mizuho and Bank of America are going to bring them a sweet amount of cash- around $24 billion. This announcement was made by the company in an effort to quash doubts regarding its ability to finance the deal it proposes.

Proposed acquisition: The story till date

Xerox has made a cash-and-stock offer to HP to the tune of $33.5 billion to acquire the printer and photocopier segment of its business. This means that it would pay for the shareholders’ stock in cash, rather than in the form of its own shares.

After the news of Xerox’s proposal started making the rounds early in November last year, HP finally confirmed the same through a statement disclosing that they had discussed “potential business combinations” with Xerox, and saying that they would continue to do whatever was in the best interests of the shareholders.

On November 17, HP issued a letter to Xerox rejecting their acquisition offer. The reason it gave for the same was that it “significantly undervalues HP”. 

In response, Xerox said that if HP refused to engage in the activity of mutual due diligence with them, it would directly approach HP shareholders to present the acquisition offer, which creates “superior value” for them. In other words, it threatened a hostile takeover. 

On November 24, HP sent another letter to Xerox, again rejecting their takeover bid. They said that while they were prepared to study the potential value of a combination, they had concerns about Xerox’s business and at the same time had confidence in their own capability to create value for their shareholders.

Subsequently, Xerox has said that HP’s decision to refuse to engage in mutual due diligence “defies logic”. The criticism has mainly come from Carl Icahn, one of the main shareholders of Xerox (with a stake of over 10%), who also possesses around 4% of the stock in HP. He has been active in trying to make this deal happen since the very beginning and has been a key figure in this episode till now.

The position of the two companies has not changed since then; while Xerox is keen on making this acquisition happen, HP has shown to resist it.

Why HP is resisting the deal

HP has not publicly expressed interest in entering into further deliberations with Xerox regarding this deal. HP claims that that the deal undervalues their company, which could mean that it is open to a higher offer. At the same time, though, it says that it has great confidence in their strategy and ability to bring success to the company in the evolving industry and create value for the shareholders. Furthermore, it has expressed concerns regarding Xerox’s business, saying that their revenues may decline in the future due to the uncertain nature of their business- which the other company has refuted.

Why Xerox is determined on making the deal happen

Xerox’s rationale behind wanting this deal is the benefits it sees for the companies upon acquisition, considering that their positions in the industry have weakened in recent years due to advancement in technology and globalization. It claims that the deal would enable them to cut costs and maximise profits in the face of declining printing industry. It has also expressed confidence that the combined company could earn over $1 billion in a period of 3 years.

Is this acquisition a good idea?

With some people calling this a potential “blockbuster deal” and others criticising it, let’s take a look at some of the pros and cons of this proposed acquisition and see if it would be a good idea for companies to go through with it.

Benefits that come with the acquisition

1. Such a deal could eliminate duplication of activities in the two companies and enable them to save costs in the face of a slowdown in business. 
2. It would result in a “behemoth printing and PC maker” with more than $70 billion of revenue, as per a Bloomberg Intelligence analysis. This would mean increased value generation for the company.
3. It would help the companies to together acquire a large market share in the industry, increasing their presence in it. 
4. They might be able to face up to, or even threaten, their rivals like Canon and Ricoh.
5. Synergy between the two companies could facilitate growth and innovation in technology.

Drawbacks that can come with the acquisition 

1. This expensive transaction could leave the combined company in huge debt. 
2. Analysts say that while it sounds like a rosy deal, an acquisition would not save the two companies from the inherent troubles in their operations as well as the deficiency in demand for their products.
3. It cannot act as a replacement for innovation, which is what both the companies require at this stage.

Conclusion

It is uncertain what’ll happen in the near future, but it would be interesting to see how the relationship between Xerox and HP proceeds and, if the deal is finalised, how the new gigantic entity approaches the market. One thing is certain- this deal has the capability to change the landscape of the industry, whether for good or bad, and both investors and competitors will be keeping a close eye on what the companies decide.

References

• https://www.bloomberg.com/news/articles/2019-11-10/sunday-strategist-here-s-why-xerox-wants-to-buy-hp-k2sy49yz
• https://in.reuters.com/article/us-hp-m-a-xerox-hlngs/hp-reiterates-its-rejection-of-xeroxs-offer-to-buy-the-company-idINKBN1XY0PQ
• https://www.wsj.com/articles/xerox-considers-takeover-offer-for-hp-11573012201
• https://www.inc.com/minda-zetlin/xerox-hp-acquisition-merger.html
• https://www.forbes.com/sites/sergeiklebnikov/2020/01/06/xerox-secures-24-billion-for-hostile-takeover-bid-of-hp/#52ae53f8b4d6 

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 Xerox’s ongoing attempt to acquire HP appeared first on iPleaders.

“If I were a dictator, religion and state would be separate. I swear by my religion. I will die for it. But it is my personal affair. The state has nothing to do with it. The state would look after your secular welfare, health, communications, foreign relations, currency and so on, but not your or my religion. That is everybody’s personal concern!”

-Mahatma Gandhi

Introduction 

The end of 2019 saw a lot of protests from the students all over India. The protests were against the Citizenship Amendment Act, passed on 12 December 2019 which is criticized on the grounds of secularism which is a basic feature of the Indian Constitution, also that it violates Right to Equality (Article 14) of the Constitution and the nationwide NRC that the government plans to implement as per the Bhartiya Janta Party(BJP) 2019 manifesto. The combined effect of NRC and CAA would be discriminatory to Muslims. The story of citizenship aims to discuss about all this, so sit back and keep reading.

The story begins…

The story revolves around some important characters; NRC, NPR, CAA. What is NRC? What is the experience of NRC in Assam? What is NPR? Are they connected? Are they also connected to the controversial CAA? Why are the students protesting? Is it really necessary? A lot of such questions come to our mind when we see what’s going around in the country today. 

Moving chronologically, NRC i.e. the National Register of Citizens, is a final list of citizens of India that will be prepared, based on the documentary evidence provided by the Indians, to trace back that their parents or grandparents have been the citizens of India. The government will set up a cutoff date and the people will have to prove through documents that their parents/ancestors lived in India or owned a property in India before that date. 

The story of NRC is not so happy in Assam. With 19 lakh citizens declared as illegal immigrants, including a retired army officer, Mohammad Sanaullah who served in the army for years declared as a foreigner and detained, family of Assam’s first deputy speaker, Moulvi Mohammad Amiruddin witnessed the same fate and similarly thousands of such people who were legally citizens but were excluded because of the documents that the state declared to be too weak as legitimate proof of citizenship. Many people have died, some committed suicide and have suffered emotionally and mentally. There are detention centres to detain the citizens declared as foreigners by the Foreigners Tribunal. There are total six detention centres in Assam as on November 2019, with one under construction. Other states of, Delhi, Goa, Punjab and Rajasthan have already operational detention centres and in the states of Karnataka, Maharashtra and West Bengal the locations have been identified for the construction. This has been in contrast to the statement by our Prime Minister denying the existence of any detention centre in the country. The national register of citizens would pose difficulties for many transgender persons, since many of them are abandoned by their family or in the other case many leave their homes. So they might not have the necessary documents to prove their citizenship. Around 2000 transgenders have been excluded from the list of NRC of Assam. 

Moving forward the National Population Register (NPR), is the first step towards the creation of NRC. Unlike the regular Census, which happens to take place in 2021, NPR requires the date and place of a person’s parents. Also, NPR would require the individual to declare his Aadhar number too. It is a database of usual residents of the country under the Citizenship Act 1955 and Citizenship Rules, 2003. Based on this data, if a person’s citizenship is considered to be doubtful, he will be required to prove that he is not an illegal immigrant. Those, who would not be able to prove that they are not illegal immigrants, would not be included in the final NRC list.

On the other hand the controversial CAA, aims to provide citizenship to all the non-Muslims from Pakistan, Afghanistan and Bangladesh who happens to come to India on or before 31 December 2014. CAA says that these people of particular religions (Hindu, Sikh, Buddhist, Jain,Parsi or Christian) won’t be regarded as illegal immigrants. This Act violates Article 14, firstly there has been no explanation in the act why these particular three countries are selected. The government explained that since these three are Islamic states so there would not be any kind of religious persecution on Muslims in these countries. The facts that a religious minority in Pakistan, the Ahmadiyas have equally suffered religious persecution, Hazaras are a persecuted minority in Afghanistan, Myanmar has no state religion and Rohingyas are in minority there have faced massive religious persecution and are living in large refugee camps with almost no basic human rights are totally ignored by the government. Therefore such an act is discriminatory to Muslims. The act is being defended by the government with the help of explanations such as this act is for protection the religious minorities in these specific countries from religious persecution. There are no words such as “religious persecution” in the Act, but even if we believe it to be the case, the religious persecution of other minorities cannot be ignored.

In the case of SR Bommai v Union of India, Justices Sawant and Kuldip Singh said that any professions and actions which go counter to the creed of secularism are a prima facie proof of conduct in defiance of the provisions of our Constitution. Secularism simply means that the state does not have any state religion. It would treat every religion equally. Article 14 guarantees equality before the law to all persons and not just citizens. Then, why is this law granting citizenship on the basis of religion. Part II of the Constitution deals with citizenship and states that any person who is

i) born in territory of India; or

ii) either whose parents was born in territory of India; or

iii) who has been ordinarily resident in the territory of India for not less than five years immediately preceding such commencement, shall be a citizen of India.

Also, Citizenship Act, 1955, says that citizenship can be obtained by any of the following citizenship can be acquired by birth, descent, registration and naturalization. Now by this act, the people from the mentioned religions and countries would not be regarded as an illegal immigrant and they can apply for citizenship either by naturalization or registration. They would not be asked to provide any document and would be granted citizenship, even if there is lack of such documents. The question is that whether they all (NPR+NRC+CAA) are connected? We might say yes, relying to the very words of Home Minister Amit Shah, who said that they both NRC and CAA are designed to work together according to the chronology. However, later due to the rising protests against the CAA, Prime Minister Narendra Modi denied any discussion on NRC. 

But as simple as it sounds, CAA might happen to aid non- Muslims who have been excluded in the NRC to again become a citizen of the country by proving that they had come from either of the three countries (Afghanistan, Pakistan, and Bangladesh) on or before December 31,2014 escaping religious persecution. And on the other hand the Muslims who would be without such documents would not be covered in such immunity provided to non-Muslims by the CAA. NRC was not a very successful exercise in Assam alone, all talking about the nationwide implementation makes us think about the much wider violation of human rights. Many people might be stateless and would lose basic rights of voting too. 

The student protests sparked from the campuses of Aligarh Muslim University and Jamia Millia Islamia, which witnesses a lot of violence, damage of public property and the brutal attacks by the police on the students in the very campus of the University(Jamia Millia Islamia). The police entered the university of Jamia Millia Islamia without the permission of the authorities and attacked students and treated them as terrorists. The Bloody Sunday of Jamia Millia Islamia is a proof that dissent is in danger, democracy is in danger. Many universities and colleges all over the country came in solidarity against the police brutality and the Act. Since then there have been daily peaceful protests in Jamia Millia Islamia. Despite huge resistance from the citizens, the government is still not ready to take a step back. The government has started door-to-door campaign to educate citizens regarding the act and have provided toll-free number for people to support the CAA.

If we think logically, in a country like India, with a large percent of people illiterate, many living on the roads, would not be able to prove their ancestry through some documents. Also, in states prone to floods, many people lose such documents. Orphans, transgenders, would too face hurdles in proving their citizenship. The Assam NRC required a cost of more than Rs. 1200 crores. A nationwide NRC would require a lot more expenditure than this amount. When India was supposed to be Superpower in 2020, with a growing GDP, more employment, better education system, better healthcare facilities, and more harmonized society, the government is busy deciding who is a citizen and who is not, with students protests spreading all over the country and even outside the country, police violence taking places at Jamia Millia Islamia and Aligarh Muslim University and at peaceful protests, students brutally beaten by the police and internet shut downs. Justice Madan Lokur, a former judge of the Supreme court said that the proviso in the definition of “illegal migrant” inserted in the Citizenship (Amendment) Act is clearly unconstitutional provided one agrees with a law laid down by the Supreme Court in 1952. Ajit Prakash Shah, former Chief Justice of the Delhi High Court and former Chairperson of Law Commission of India,said in an article in The Hindu dated December 28, 2019 because the CAA is immoral, a people’s movement is inevitable and necessary, for otherwise the fundamental principles on which the constitutional idea of India rests will be destroyed for something that can render deep wounds forever. UN High Commissioner for Human Rights had said in Geneva that it is “concerned” that the CAA is “fundamentally discriminatory in nature”.

Just like the Nuremberg divided Germany into Germans and Jews, NRC and CAA are dividing India into Hindus and Muslims. The dream of a perfect secular country seems to be bleak. Is the freedom of speech and the right to dissent, guaranteed by the constitution being restricted gradually by the state or does anyone even care about the constitution anymore? Dissent is extremely significant for any democracy but then again one is forced to think whether the democracy is changing to a theocratic state. Well, the story doesn’t ends here, there’s so much to see. I don’t know whether we will see a happy ending or a sad one, but what I think is, that this movement has brought together people in a way that needs appreciation. The unity shown by people is commendable. I do not in any way support violence in any form, but I do support the right to dissent, the right that people have to raise objections, the right to deny, there should be a dialogue between people and the government. Shutting internets is not a way, let people speak for their rights and don’t divide.

The Supreme is yet to decide the constitutionality of the Act, and we should all put our faith in the judiciary, that it would safeguard our constitution. 

To be continued….

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 The story of Citizenship: interesting facts you must know about appeared first on iPleaders.

This article is written by S. Aditya, an alumnus of KLE Society’s Law College, Bengaluru. This article focuses on the provisions regarding the prevention of oppression and mismanagement under the Company legislation of India.

Meaning Of Oppression

Oppression is the exercise of authority or power in an unjust manner against the consent of the other party. In the Black Law Dictionary, the term ‘oppression’ is defined as ‘the act or an instance of unjustly exercising power.’ It can also be viewed as an act or instance of oppression and the feeling of being heavily burdened, mentally or physically, by troubles, adverse conditions, and anxiety.

In the case of Dale and Carrington Investment Pvt Ltd. v P. K. Prathapan, it was held that increasing the capital of a company with the sole purpose of gaining control over can be termed as oppression.

Application to Tribunal for relief in cases of Oppression

The aggrieved shareholder may approach the National Company Law Tribunal set up under the Company legislations. 

Application against oppression and mismanagement

Earlier under the Companies Act, 1956 section 397 dealt with the application against oppression and mismanagement. The Companies Act, 2013 lays down the provision to make an application against the oppression under section 241. The chapter XVI of the Company Act clearly specifies who can raise a complaint and under which circumstances a complaint may be raised of oppression and mismanagement. 

First let’s consider a situation when a member of the company makes a complaint regarding the affairs of the company when the affair may seem shady affecting the interest of the public at large or the company,  or when the affairs of the company is oppressive in nature and against the member making the complaint or any other member of the company. The member may also make a complaint regarding the material change in the management or control of the company which may seem to be prejudicial to the company. The Central government may, by itself, file the oppression and mismanagement application before the tribunal against a company if it believes that the affairs of the company are prejudicial in nature. 

Who can file an application against Oppression and Mismanagement?

The Provision of Section 244 of Companies Act is also crucial as it describes who has a right to file such an application. The right is broadly divided between the company and entitlement to one member, to file on behalf of the other members. In a company, the right may further be differentiated based upon the companies having a share capital and companies not having a share capital. The share capital of the member complaining, may be calculated based upon share capital’s number or its value. When it comes to number, it should be 100 or 1/10 of the total members and when it comes to the value, it must be the members holding 1/10th of the share capital value.  In companies not having a share capital, 1/5th of the total members may apply. Coming back to the entitlement to one member, to file on behalf of the other members, it is posed with only one precondition that the person doing so must have the consent of others in written form.

Power of Tribunal: Section 242 of the Companies Act, 2013

The tribunal is the special adjudicatory body brought about to deal with the matters pertaining to the Companies Act in order to get efficient and immediate relief. Section 242 deals with the powers of the tribunal and the same have been examined and explained for your kind perusal. 

• The first power granted upon it by the legislation is to pass an order. Such order may be passed if it is of the opinion that the affairs of the company have been or are being conducted in a prejudicial manner. It has been mentioned that the winding up of the company will not be ordered radically, but it is the oppression and mismanagement which is aimed to be stopped. 
• The same provision also confers powers upon the tribunal regarding three issues which are concerning the 1) shareholders 2) Company and 3) others. 
• With respect to shareholders, a tribunal may order to purchase shares of members by other members or by the company. 
• A tribunal may as well order a reduction of the share capital or even enforce restriction on transfer of shares because oppression and mismanagement at root cause depends upon the coagulation of shares at the hands of individual or few members. 
• Regarding the management of the company which is a crucial part of a company, a tribunal may terminate or modify agreements made between company and management or agreement between the company and any other person.  
• The tribunal in case of management of the company may even remove the Managing Director, Manager, and Director, the tribunal may recover undue gains made by such official and also appoint another MD, manager, and director. 
• In certain cases, the tribunal may appoint a person who shall report to the tribunal regarding the activities of oppression and mismanagement by the management to curb such oppression from taking place further. 
• Lastly, the tribunal has certain other powers such as regulation of the conduct of the affairs of the company, setting aside the transfers of any property of the company and the tribunal may even impose costs. The procedural details are that the tribunal has to send a copy of its order to the registrar and if the order has not been finalised, it may provide an interim order to the registrar. Pertaining to changes made in MOA (Memorandum of Association) and AOA (Article of Association) the changed documents must be submitted to the registrar. The punishment prescribed in abeyance of the law is set at 1 Lakh to 25 Lakh for a company and 25000 to 1 Lakh for an officer in default and such officer may also be liable for a term of imprisonment of 6 months.  

Oppression of the Minority

The management of a Company is based on the majority rule, but at the same time, the interests of the minority can’t be completely overlooked. While talking of majority and minority, we are not talking of numerical majority or minority but of the majority or minority voting strength. The reason for this distinction is that a small group of shareholders may hold the majority shareholding whereas the majority of shareholders may, among them, hold a very small percentage of share capital. Once they acquire control, the majority can, for all practical purposes, do whatever they want with the Company with practically no control or supervision, because even if they are questioned on their acts in the general meeting, they always come out winners because of their greater voting strength. So, the modern Companies Acts contain a large number of provisions for the protection of the interests of minorities in companies.

Appeals against the Orders of the Tribunal and variation of the Order of the Tribunal

The Award pronounced by the NCLT (National Company Law Tribunal) may be appealed before the NCLAT (National Company Law Appellate Tribunal). The procedure and provision granting such right to appeal is Section 421 and the same is explained below.

• The appeal may be preferred by any person who is aggrieved by the decision of the tribunal. 
• No appeal shall be entertained when the decision is given by the tribunal based upon the consent of the parties. 
• Appeals must be made within a period of forty-five days from the disputed order passed by the tribunal and the extension may be given only when sufficient cause for such delayed filing is brought before the court by such party and such extension shall only be for another 45 days. 
• On receiving such appeal, the appellate tribunal must give a reasonable opportunity to the parties and then pass an order confirming or modifying or setting aside the order appealed against.

Maintainability of Petitions under Sections 241 & 421

• The validity of a petition must be judged from the facts as they were, at the time of its presentation, and a petition which was valid when presented cannot cease to be maintainable by reason of events subsequent to its presentation. 
• For the purposes of the petition under Sections 241 and 421, it was only necessary that members who were already constructively before the court should continue the proceedings. The provision under the Companies Act provides substantive provisions regarding an application that is to be made when there is complaint of oppression and mismanagement. It clearly specifies who may complain and when. 
• As discussed before, member shareholders may make a complaint when the company affairs are conducted prejudicial to the company and its shareholders. 
• The central government may even take suo-moto action regarding the same under the aforementioned provisions. Under the provision Section 421 of Company Act, one could make an appeal from an order of the tribunal if such a person is aggrieved by the decision. 
• The time duration of 45 days has been fixed as maximum period within which appeal shall lie from the order of company tribunal, but the appeal may be further extended to a maximum of another 45 days on convincing court of the sufficient cause of delay.
• Then the appellate tribunal finally gives the appellant a reasonable opportunity to present their case again, to either uphold or overrule the previous decision of the tribunal. This appeal provision is based upon the intrinsic right to appeal, which is provided to the aggrieved party in order to do complete justice. 

Class action

The word class action is defined under Section 245 of Company Act.  A class action is where number of claimants with common grievance against the company are allowed to file a lawsuit against the company. Claimants can collectively use their resources such as share attorney’s services and save their litigation costs to a great extent. The financial scale attached to the class action suit is perceived as a saving grace for individuals with limited resources. 

The  funding of a class action suit is usually made from the Investor Education Protection Fund. This funding is subject to the feasibility of reimbursement from the IEPF which is usually considered an acid test under the Company Act, 2013. The application is usually made regarding the conduct of the affairs of the company being prejudicial to the interest of the company or the members and its depositors. A class action may even be filed against the directors or auditors of the company for misleading the members by furnishing misleading reports.

Under the Security Class Action, group of people affected by the changes made to the MOA/AOA must bring a suit of class action instead of filing application of class action. 

Numbers of members/ depositors who may bring class action suit:

• In case of companies having a share capital, not less than 100 members of the company may bring a class action suit; or not less than 10% of the total number of members whichever is less may bring a class action suit, or any member individually or jointly holding 10% of the share may bring a class action suit provided, all such shareholder members have paid up all the share dues.
• If the company is not having a share capital, then not less than 1/5th of the members can bring a class action.
• For a company having deposit capital, a class action suit may be brought by not less than 100 depositors of the company or by a minimum of 10% of the total depositors whichever is less, or a class action suit may also be brought by any depositor individually or depositors jointly who are holding 10% of the outstanding deposit of the company.

Conclusion

The recent collapse of large companies and corporations globally has made such entities to carefully ponder over their actions towards affairs of the company. Accountability has increased by the tool of class action suits that are filed against the management personnel regarding their deeds of oppression and mismanagement. The individual shareholder of the company and the minority shareholders have been empowered to take up action against the unjustified abuse of power and authority by the managerial personnel under the law regarding oppression and mismanagement. An individual may file an application before the tribunal informing about the oppression and mismanagement carried out by any key personnel, against him or any other shareholder of the company.

References 

1. The Companies Act, 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.

The post Prevention of Oppression and Mismanagement Under the Companies Act, 2013 appeared first on iPleaders.

This article is written by Siddharth Addy, Aryaknath Bhattacharya and Sourav Mandal from Amity Law School, Kolkata.

Abstract

Corruption exists in all countries irrespective of Socio–Political Development and Economic enhancement; there exists a clear nexus between Global Corruption and Violation of Human Rights. Corruption compromise states Obligation towards promoting, respecting and protecting human rights of individual within their jurisdiction. Increasing corruption at a global level is attracting great Prominence by the Human Right Council. The council has given several recommendations to suppress the corruption; it’s a transitional phenomenon which requires International Cooperation. 

Human Right Laws shall be enforced effectively to reduce the ever evolving nexus between Human rights and Global Corruption and to promote social welfare maximization; and for the same the States shall be made accountable to counter the corruption and the case related to Corruption shall be given high level of prominence and shall take preventive measures to reduce the same thereof. Moreover raising awareness and creating concern among the mass would create a disincentive effect.

Introduction

The advent of illicit acts such as bribery, theft, money laundering and so on had crept into the minds of incompetent individuals which gave birth to CORRUPTION. This act of corruption has surfaced into the global market and has massacred the economies of various countries as well as their police protection systems and judicial systems. Corruption has violated the basic human rights by ripping individuals of their fair opportunity of trials before the judiciary system of the individual nations. Corrupt practices, without any doubt, has funded terrorism either by money laundering thereby threatening the economy of the nation as well. In September 11, 2001, International Monetary Fund experiences a catastrophe which made them initiate and intensify the Anti Monetary Laundering Activities and forced the officials in the International Monetary Fund to combat the immediate crisis various such countries which may have had involvement in abetting terrorism. This led to the birth of the Financial Action Task Force at the G7 summit in Paris, 1989. The Financial Action Task Force had suspected that the middle east was abetting in the Yemen crisis, for which global trades were monitored by the IMF since 2010 to 2014, during which many donations to charities were blocked, for example; Ummah Welfare trust which had its operations at the Gaza Strip were found to be laundering money to fund the terrorists. Thus, people even with a clear police reports were not allowed to setup any charity in Somalia or Yemen or Syria. Thus, this clearly depicts as to how can illicit practices lead to corruption in individual nations which makes the Global trades a threat to such acts of corruption and thereby creates chaos and benefits terrorism which is the ultimate threat to Human Rights and Human Safety. 

What is Global Corruption?

The word corruption in general means, any form of dishonesty or criminal activity involving fraud (defined u/s 25 of the Indian Penal Code), which is undertaken by a person or an organization holding any office of authority, per say the government officials and so on, often to acquire illicit benefits, or abuse of such powers for a private gain. Thus, when the same illicit activities surface over the whole world creating a ruckus, chaos and even terrorism or something more dangerous like nuclear warfare among the nations.

Corruptions has many faces through which circulates among the masses, organizations, etc. like nepotism, bribery, money laundering, inflation and so on. Thus, a corruption on a such a massive scale would mean ultimate sacrifice to humanitarianism. The recent humanitarian crisis has now crippled the Western part of the globe by infesting it with more than necessaryamount of refugees and migrants. One of the several countries, Venezuela,once the richest countries in South America has been scurrying towards economic, social and institutional subside, spurring a territorial humanitarian crisis and mass migration and there have been various estimates made by the UN that by the end of 2020 there will be 8 million Venezuelan refugees and illegal immigrants making it the largest refugee crisis in the world. The reason behind this crisis is the hyperinflation that is pinning down the economic development as there fails to exist a stable government.

The government headed through Nicolás Maduro, who has presided over Venezuela since 2013, declared a nation of emergency in 2016. That year the inflation charge hit 800%. Since then there has hardly been any improvement, rather things have gone haywire since then. By 2018 inflation become an expected 80,000%. It’s difficult to say what the rate is now, but Bloomberg’s Venezuelan Cafe Con Leche Index, based on the rate of a cup of espresso, shows it is now about 380,000%.

Here are some forms of corruption which affect the Human Rights the most and they are:

Police corruption- Police corruption is the abuse of police authority for individual gain. Models incorporate coercion (for instance, demanding cash for not imposing a traffic tickets) and bribery (for instance, accepting cash in return for not authorizing the law). 

The expenses of police corruption Police corruption conveys significant expenses. Initial, a degenerate demonstration is a wrongdoing. Second, police corruption brings down the uprightness of the police and stains the open picture of law enforcement. Third, corruption ensures other crime, for example, sedate managing and prostitution. Secured crimes are regularly rewarding wellsprings of pay for sorted out wrongdoing.

Judicial corruption- Judicial corruption is a kind of corruption which is found throughout the world. The word corruption is universal and corruption is found in all states, weather it is an developed of developing nation, the degree of corruption may vary from country to country, but corruption is found throughout.

The vast majority of people related to the legal fraternity are honest and hardworking but it is very unfortunate that few people are inappropriately influenced to make their judgement. 

Judicial independence is recognized as a universal human right.

Right to fair trial- Article 6 states the right to free trial. Fair trials are the best way to avoid miscarriage of justice and are a fundamental piece of an equitable society. Each individual blamed for a wrongdoing ought to have their blame or guiltlessness controlled by a fair and powerful lawful procedure. In any case, its not just about securing suspects and respondents. It additionally makes social orders more secure and more grounded. Without fair trials, exploited people can have no certainty that justice will be finished. Without fair trials, trust in government and the standard of law breakdown. 

The right to a fair trial isn’t new; it has for quite some time been perceived by the universal network as a fundamental human right. Regardless of this current, it’s a right that is being mishandled in nations over the globe with decimating human and social results.

Political corruption- Political corruption implies the maltreatment of political influence by the administration heads to extricate and collect for private enhancement, and to utilize politically degenerate intends to keep up their hang on control. Notwithstanding, maltreatment of political power for different purposes, for example, suppression of political adversaries and general police fierceness, isn’t viewed as political corruption. Political corruption happens at the most significant levels of the political framework, and consequently it very well may be separated from authoritative or bureaucratic corruption. It can likewise be recognized from business and private area corruption. 

Political corruption can be of two forms. The first is which incorporates both collection and extraction and where government authorities use and misuse their hang on capacity to remove from the private division, from government incomes, and from the economy on the loose. A portion of the instances of the previously mentioned type of corruption are extraction, theft, lease chasing, loot and even kleptocracy (“rule by thieves”). 

The second type of political corruption is one in which removed assets (and public money) are utilized for influence conservation and influence expansion purposes. This generally appears as bias and support governmental issues. It incorporates a favoritism and politically propelled dispersion of budgetary and material incitements, advantages, focal points, and jewels.

In politics, corruption undermines vote based system and great governance by mocking or in any event, subverting formal procedures. Corruption in elections and in the legislature diminishes responsibility and mutilates portrayal in policy making; corruption in the legal executive trade off the rule of law.

Statement of Problem

Corruption leads to deterioration of standard of living, fall in the economy. Chaotic situations have surfaced throughout the nations, unstable decision-making systems, i.e the governments are facing difficulties coping with the same. There are various circumstances where the not only the political parties but also the judiciaries, police and such systems of protection of the human rights and its betterment are falling apart due to various corrupt or mal practices. The recent media sources suggest that there have been various intrusions by terrorist attacks and nuclear warfare and riots causing unruliness in the society. 

Remedies

It’s not an easy task to fight corruption in a global level. Though through effective administration and by creating awareness among the mass and compensating the indiviall, whose Human rights have been violated therein. We have tried to lay down certain remedies to tackle the corruption at a global level.

1. Law Enforcement is a Sine Quo Non to ensure corrupt are being punished and to break the vicious cycle of immunity from punishment. Strong legal enforcement must be backed by strong legal Framework.
2. Focusing on the reforms by improving the financial management thereby achieving growth impact on P.S.U (public sector undertaking) leading to reforms in curbing corruption. 
3. Implement awareness programs to create awareness and develop a strategy to fight corruption. 
4. We have to put a check on the abuse of public power for private gain to curb Corruption at a global level. Awareness, promotion and promulgating anti-corruption policies and practices have not been implemented in a uniform manner throughout the globe.
5. In countries like India there exists a high degree of disparity in income therefore “rich becomes richer and poor becomes poorer” the major reason behind this is the increasing levels of corruption. In order to stop it the government shall impose tax on the luxuries goods and provide subsidies to the poor the thinner the line of income inequality between rich and poor. 
6. The corruption also lies in the international judicial framework where many cases relating to corruption goes unheard therein we shall put a check on the anti corruption level. 
7. Focus on what works: demonstrate the effect of anti-corruption efforts, provide incentives for private sector, public sector, and multilateral organizations (including donor agencies) to proactively integrate anti corruption efforts into their work, and focus on both the demand and supply side. 
8. Learn more about the opportunities and limitations of transparency and accountability efforts for combating corruption, learning from the experience of accountability mechanisms for human rights violations. 

The United Nations Human Right Convention plays a key role in monitoring the Global Corruption; the Convention highly raises its concern about the ever growing corruption which has become an epidemic therein for the betterment of the society at large it’s High time to strengthen the framework and adopt necessary remedies to curb out Global Terrorism from its root. 

Violation of Human Rights Laws

After almost seventy years of the incorporation of the Human Rights in 1948, the Universal Declaration of Human Rights is still a dream. The violation of human rights is in every part of the world. According to Amnesty International’s 2009 World Report the violation of Human rights violations are as follows: 

• In 81 countries there is torture and abuse.
• Unfair trials in minimum of 54 countries.
• The freedom of expression is restricted in at least in 80 countries.

The plague of Violation of Human Rights has been intact since the Universal Declaration of Human Rights. In particular women and children suffer the most. The press in not free in most of the nations, a free thinker is always suppressed. 

The United Nation, Universal Declaration of Human Rights on 10 December 1948 has 30 Articles.

There are mainly 6 articles among the 30 articles of the Universal Declaration of Human Rights which are violated widely throughout the world. They are:

• Article 3– The Right to live free (Right to Life)

Everyone has the right to life, security and liberty of their own.

How the article is violated- An estimate of approx. 600000 people are killed every year due to some armed conflicts, wrong administration, poverty and wrong doing like drug addition and prostitution.

The above situations says that Article 3 is some how compromised in today’s world.

• Article 4– No Slavery (Freedom from slavery)

No one can be named slave or servitude cannot be imposed, slave trade is prohibited.

How the article is violated- Throughout the world as estimated by the US State Department there are 600000 to 820000 men, women and children who are trafficked across the international border and made slaves. They force them to serve as a soldier to them or sexual slaves or unpaid jobs for the kids. The majority of this slavery originate from Africa, Asia and Latin America.

• Article 5- No Torture (Freedom from Torture)

No one should be tortured or has to face cruel, inhuman or degrading treatment or punishment. 

How the article is violated- The CIA of the US under President George W. Bush detent many people under the suspicion of terror and showed cruelty to them. Darfur & India has the cruelty of rape to a extreme level.

The problem is faced in Congo and Arab countries as well.

• Article 13- Freedom to move.

Everyone has the right to stay wherever they want in their country and they can leave the country as well.

How the article is violated- The African countries and some of the Asian countries and some of the European countries and the US is against accepting refugees. This countries refuse to open their borders and give asylum to the asylum seekers. Many of this countries violate the International Refugee Law. This violation ends up the refugees without water, food and medicines, amounting to their death. Which is again the violation of Article 3.

People remain displaced due to this violation. 

• Article 18- Freedom of thought.

Everyone has the right to freedom of thought, religion, perception, this also means they can change his or her religion, practice, observe and worship any belief of his or her choice.

How the article is violated- In today’s world this freedom is more or less not there in real life. Media is not free, religion is used as the base of terrorism and execution. Lack of awareness has resulted in the violation of this article.

• Article 19- Freedom of expression.

Everyone has the right to express whatever he or she feels through any form of media regardless of the borders.

How the article is violated- In countries like Sudan, Somalia, Ethiopia, Saudi Arabia, North Korea and many more countries the media is most corrupt and anyone who tries to go against the Government of the county are silenced either by dead penalty(directly or indirectly) or imprisonment. We can see the corrupt and biased media in India also. 

This violation results in formation of dictatorship as the people cannot speak up.

To conclude violation of Human Rights Law it can be said: 

Human rights exist, as epitomized in the Universal Declaration of Human Rights and the whole assemblage of global human rights law. They are perceived—in any event on a basic level—by most countries and structure the core of numerous national constitutions. However the real circumstance on the planet is far removed from the standards imagined in the Declaration.

Conclusion

Human Rights are moral principles or norms which codifies certain standards of living and human behavior. Humans are protected by the local and international laws.

Global corruption is the measure of the dishonesty and fraud in the world.

If all the nations of the world especially the UN member follows the UN Declaration Human Rights 1948, there will be a stable condition to follow the standards of the UN.

The conclusion which we derive from the research are as follows:

• Countries with low income rate, i.e. the developing nations or underdeveloped countries are frequently prone to corrupt or malpractices as every individual deserves at least the basic standard of living to fulfill their basic needs and necessities, thus when these basic requirements are denied, they tend to follow the path of illicit acts like theft, murder and so on. Hence, initiatives must be inducted by the government for the better standard of living for the individuals in it.
• Countries with partially closed economy’s tend to be corrupt as there is only one head.
• Countries with low media freedom encouraging bribery.
• Countries with low rate of educated people tend to give and receive bribe as they are unaware of the policies and wants there work to get done anyhow.

This concept of bribery and corruption is one of the major factum which causes the violation of Human Rights.

Now the question arises how do we remove corruption and let all the 30 Human Rights prevail? 

The answer is simple we can remove poverty and Violation of the rights by educating people, creating jobs and creating the awareness about the rights of the people.

The help of the global media will be required to aware people worldwide, if government is one-sided, degenerate and supports just the noble, it can demonstrate to be extremely hazardous for the smooth working of democracy. 

To conclude; there is actually a lot of things which can be done to bring the global crisis of rights to a stable condition, many leaders and countries have looked into the matter seriously. There is a slow development but the speed of the development is increasing. 

Lastly the global corruption and violation of human rights will only end when we stand for ourselves instead of depending on the government alone. 

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 Global corruption and its impact in relation to international human right laws appeared first on iPleaders.